Age Discrimination

Overview of  Age Discrimination

Age discrimination is that based on age. The principles that apply to the various non-gender grounds of discrimination apply to discrimination based on age. It is generally prohibited.  Age-related discrimination requires that the complainant and the comparator be of a different age. There must be a relatively significant age gap.

Discrimination occurs when a person is treated less favourably than another person would be on the basis of one of the prohibited grounds, including age, which exists at present, existed, but no longer exists, may exist in the future or is imputed to the person.

There is also discrimination when a person associated with another has been or would be treated less favourably than someone who is not, in circumstances where similar treatment of that other person would constitute prohibited discrimination.

Indirect discrimination occurs where an apparently neutral provision puts a person at a disadvantage on the basis of one of the prohibited grounds of discrimination unless justified by a legitimate aim.  If there is a legitimate aim, then the means of achieving that aim must be appropriate and necessary.

In the context of employment, age discrimination can occur in relation to recruitment.  In can occur in relation to pay (including other remuneration) and in relation to the terms and conditions of employment. It can occur in relation to adverse treatment in the employment setting on the basis of age.


Permitted Differentiation on Age Grounds

The EU Directives on equality allow for unequal treatment on otherwise prohibited discriminatory grounds for particular occupations in contexts which warrant such treatment, provided that it is legitimate and proportionate.

Differential treatment is permitted on the ground of age, provided that it is objectively and reasonably justified by a legitimate aim. This includes legitimate employment policy, labour market and vocational training objectives. The means of achieving the aim must be appropriate and necessary.

The differences in treatment may include

  • the setting of conditions on access to employment and training, including dismissal and remuneration;
  • conditions for young people, older workers and persons with caring responsibilities in order to promote their vocational integration and ensure their protection;
  • fixing minimum conditions of age, professional experience or seniority in service for access to employment or for certain advantages linked to employment;
  • fixing a maximum age for recruitment, based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.

Discrimination on the grounds of authenticity, aesthetics, tradition and custom are permitted in relation to the gender, age, disability and race grounds of discrimination.


General Exceptions re Age Discrimination I

There are important exceptions to the general prohibition on discrimination on the basis of age. They apply to certain types of differentiation on the age basis for particular purposes which are deemed objectively justifiable. There is a wide exception which effectively permits aged based discrimination in respect of persons who have not attained the age of majority (18 years’ old).

It does not constitute discrimination on the ground of age to set a maximum age for recruitment, taking account of the cost and time period involved in training and the need for a return on investment prior to retirement. Age discrimination may be permissible to the extent that actuarial or other sufficient evidence show that that significantly higher costs would otherwise result.

It is discrimination on the age ground for an employer to provide for different persons

  • different rates of remuneration; and / or
  • different terms and conditions of employment,

if the difference is based on their relative seniority (or length of service) in a particular post or employment.


General Exceptions re Age Discrimination II

A term in a collective agreement is valid notwithstanding that it is to the effect that in particular circumstances, where the length of service would otherwise be regarded as equal, seniority in a particular post or employment may be determined by reference to the relative ages of employees on their entry to that post or employment.

The legislation provides a derogation which allows employers to take into account the period between the age of redundancy and employee’s compulsory retirement age when calculating severance payments.

In relation to discrimination on the age ground, nothing in this Act shall render unlawful any act done in compliance with the Protection of Young Persons (Employment) Act or the National Minimum Wage Act.


Retirement Requirement as Potential Discrimination

Retirement at a fixed age must now be specifically justified. The former wide exception in respect of discrimination on the age ground, which applied to the retirement of persons over 65 years old has been modified by 2015 legislation. This was required in order to bring the Irish legislation into conformity with the EU Directives.

Formerly it was provided that it was not discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees. The 2015 amendment provides that it does not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees provided that it is objectively and reasonably justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.

The 2015 changes also apply to fixed term post-retirement contracts. Prior to those changes, the Employment Equality Acts provided that offering a fixed term contract to employees over the compulsory retirement age did not constitute discrimination on the grounds of age.

The amended legislation provides that offering a fixed term contract to a person over the compulsory retirement age for that employment or to a particular class or description of employees in that employment shall not be taken as constituting discrimination on the age ground if it is objectively and reasonably justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.


Retirement Provision

There is no general statutory compulsory retirement age. Some statutory schemes in the public sector provide for mandatory retirement ages. Until the recent legislation, employers had broad discretion in fixing compulsory retirement ages. EU case law on the interpretation of the relevant directives had shown this amendment to be necessary in order to conform with EU law.

Employers must now objectively justify their standard contractual retirement age. They must also justify their fixed term post-retirement contract retirement age if they have one. Each must be justified objectively as a legitimate aim. They must be both appropriate and necessary.

Employers must provide for the applicable retirement age in their contracts of employment. The retirement age should be specified as an express condition in an employee’s contract of employment.  If there is no express provision, the employer may be in a position to prove that the retirement age is an implied term. The term may be implied by custom and practice.  There may be a collective agreement which provides for the retirement age.


The EU Requirements re Age Discrimination

EU Council Directive provides that states may provide that differences in treatment on the grounds of age shall not constitute discrimination, provided that the difference may be objectively and reasonably justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.  The legitimate aim may include legitimate employment policy, labour market and vocational training objectives.

Until 2015, the Irish legislation did not provide that the difference in treatment on the grounds of age in respect of retirement ages, must be objectively and reasonably justified by a legitimate aim.  However, the case law had shown that the Irish legislation was incompatible with the Directive.

The European Court of Justice held in a case relating the Spanish compulsory retirement age that states could set a mandatory retirement age provided that measure was objectively and reasonably justified and was a proportionate means of achieving a legitimate social aim.  The objective justification, in that case, was part of a national policy seeking to promote better access to employment, by means of better distribution of work between the generations and was compatible with the Directive.


Justification for Age Based Discrimination

The objective justification under the Directive must be based on social policy ground. The EU case law holds that is not sufficient to base the justification on the individual needs of the business. The Equality Tribunal, now the Workplace Relations Commission appeared to allow both business and social policy grounds as potentially justifying the mandatory retirement age.

The objective justification must relate the individual circumstances of the particular workplace. A generalised economy-wide justification may not suffice unless it is directly relevant to that workplace.

Legitimate policy grounds may include (for example);

  • the creation of opportunities in the job market for those seeking work;
  • ensuring inter-generational distribution of work, and
  • providing motivation by the prospect of promotion when older staff retire.

Irish Cases Prior to Amendment

The Irish High Court (Donnellan v Minister for Justice, Equality and Law Reform) held in 2008 that the imposition of a mandatory retirement age, (even in this case by regulation having the force of law in public sector scheme) must be compatible and conformable with the Directive. As a general principle, the superiority of EU law requires that domestic law be compatible with it.

In that case, the High Court accepted the State’s submission that the retirement age was objectively justified as necessary to ensure “motivation and dynamism through the increased prospect of promotion.”. It was held that “any discrimination with regards to age must, as put by that Directive, serve a legitimate aim or purpose, and the means taken to achieve that purpose must be appropriate and should go no further than is necessary, i.e. they should be proportionate.”

Potentially justifiable grounds accepted by the former Equality Tribunal (whose powers not vest in the Workplace Relation Commission) have included

  • the health and safety of the people who required to be rescued and the operational capacity and proper functioning of a professional search and rescue team;
  • the health and safety of those working with electricity, and to ensure cohesion amongst all employees;
  • health and safety considerations, in some occupations where there are specific demosntrable risks;
  • offering career paths to employees to ensure “retention, motivation and dynamism” amongst the staff;
  • in some cases sucession planning;
  • in same cases establishing a balance and mix of experience and skills

The Directive provides states, may provide for differences in treatment on the grounds of age where those differences can be objectively justified by a legitimate aim.  The Labour Court has indicated that the legislation need not specify the justifiable aim being pursued, provided that those aims could be ascertained from a reading of the legislation as a whole. Therefore, the courts may infer the legislative aim, so that it need not be specifically recited.


Exception for Insurance / Risk and Severance Payments

Differences in treatment in relation to annuities, pensions, insurance policies and other matters relating to the assessment of risk, which are effected with reference to actuarial or statistical data obtained from a source, on which it is reasonable to rely or other relevant underwriting or commercial factors which are reasonable, having regard to the data and to relevant factors, do not constitute unlawful discrimination.

It is not discrimination to provide different rates of severance payment for different employees or groups or categories of employees, being rates based on or taking into account the period between the age of an employee on leaving the employment and his or her compulsory retirement age.


Occupational Schemes Exceptions

Occupational benefit schemes include statutory and non-statutory schemes for providing benefits to employees or categories of employees, on becoming ill, incapacitated or redundant. The use of age on the above grounds must not constitute disguised discrimination on the gender ground. The general implied contractual term prohibiting discrimination does not apply to pension rights.

Member states may provide in relation to occupational and social security schemes, that the fixing of ages

  • for admission to the scheme;
  • for entitlement to retirement or invalidity benefits, including, the fixing under those schemes of different ages for employees, or groups or categories of employees, and
  • the use in the context of such schemes, of age criteria in actuarial calculations,

do not constitute discrimination on the grounds of age.

It is not discrimination to use in the context of scheme, age criteria in actuarial calculations or to provide different rates of severance payment for employees or groups or categories of employees, being rates based on or taking into account the period between the age of an employee on leaving an employment and his compulsory retirement age.

The discrimination must not constitute disguised discrimination on the gender ground.


Security Services Modification

It is an occupational requirement for employment in the Garda Síochána, prison service or any emergency service that persons employed therein are fully competent and available to undertake, and fully capable of undertaking, the range of functions that they may be called upon to perform so that the operational capacity of the Garda Síochána or the service concerned may be preserved.

If the Minister is of opinion that the age profile of members of the Garda Síochána, prison service or any emergency service is such that its operational capacity is or is likely to be adversely affected, and  he or she by order so declares, the age ground shall not apply in relation to such competitions for recruitment to that service as are specified in the order.


WRC Code

The WRC Code 2017 sets ourts good practice and procedure in relation to retirement on age grounds.

It is good practice for an employer to notify an employee of the intention to retire him/her on the contractual retirement date within 6 — 12 months of that date. This allows for reasonable time for planning, arranging advice regarding people succession, etc. While the initial notification should be in writing, it should be followed up with a face-to-face meeting which should focus on addressing the following:

  • Clear understanding of the retirement date and any possible issues arising;
  • Exploration of measures (subject to agreement) which would support the pathway to retirement, for example flexible working, looking at alternative roles up to the date of retirement;
  • Transitional arrangements in regard to the particular post; and
  • Assistance around guidance and information.

A request from an employee to work longer than their contracted retirement age should be considered carefully. There are several matters to be considered by the employer and employee in this regard including:

  • Is the employee confident that he/she can continue to perform the role to the required standard?
  • Can flexible working options or alternative roles be considered?
  • What is the duration of the extension being sought?
  • Are there any pension implications?
  • Are there any contract of employment implications?

References and Sources

Primary References

Employment Law  Meenan  2014 Ch.12

Employment Law Supplement Meenan 2016

Employment Law Regan & Murphy  2009 ( 2nd Ed 2017) Ch. 13

Employment Law in Ireland Cox & Ryan 2009 Ch 15

Equality Law in the Work Place Purdy 2015

Equality Law in Ireland  Reid 2012

Employment Equality Law  Bolger and Bruton 2012

Irish Employment Equality Law McCurtain and O’Higgins 1989

Disability Discrimination Law  Smith  2010

Equal Status Acts Discrimination in Goods & Services Walsh 2012

Other Irish Books

Employment Law Forde & Byrne 2009

Principles of Irish Employment Law   Daly & Doherty           2010

Statutes

Employment Equality Act 1998 (21/1998)

Equality Act 2004 (24/2004), Part 2

Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007 (27/2007), insofar as it relates to the previous two Acts

Civil Law (Miscellaneous Provisions) Act 2008 (14/2008), Part 16

Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), ss. 18 to 26

Equality (Miscellaneous Provisions) Act 2015 (43/2015), ss. 3 to 11

Legislation

Dismissal & Redundancy Consolidated Legislation   Barrett, G        2007

Irish Employment legislation (Looseleaf)       Kerr     1999-

Employment Rights Legislation (IEL offprint) Kerr     2006

UK Texts

Textbook on Employment Law, Honeyball, et al. 13th Ed. 2014

Labour Law, Deakin and Morris 5th Ed. 2012

Employment Law, Smith and Wood 13th Ed 2017

Selwyn’s law of Employment Emir A 19 Ed. 2016

Employment law : the essentials. Lewis D Sargeant M and Schwab M 11 Ed.2011

Labour Law Collins H, Ewing K D and McColgan  2012

Industrial relations law reports. (IRLR): Law Section,

Employment law Benny R Jefferson M and Sargent  5th Ed.  2012

Pitt’s Employment Law 10th  Ed. Gwyneth Pitt 2016

CLP Legal Practice Guides: Employment Law 2016 Gillian Phillips, Karen Scott

Cases and Materials on Employment Law 10th  Ed. Richard Painter, Ann E. M. Holmes 2015

Blackstone’s Statutes on Employment Law 2015 – 2016 Richard Kidner

Drafting Employment Contracts 3rd  Ed. Gillian Howard 2017

The Contract of Employment Edited by Mark Freedland, Alan Bogg, David Cabrelli, Hugh Collins, Nicola Countouris, A.C.L. Davies, Simon Deakin, Jeremias Prassl 2016

UK Practitioner Services

Tolley’s Employment Handbook 2017 Mrs Justice Slade 2017

Butterworths Employment Law Handbook 2017 Peter Wallington 2017

Blackstone’s Employment Law Practice 2017 Edited by Gavin Mansfield, John Bowers, John Macmillan 2017