14 Dec Mandatory Retirement Ages

The recent High Court decision in Quigley v HSE [2017] IEHC 654 is a pertinent reminder for employers that they may face potential legal issues if they try and enforce a retirement age when there is no clear written or implied contractual right to do so, or in the event that there is that such a retirement age cannot be objectively justified.

Dr Quigley was employed with the HSE for 19 years as a GP who specialised in substance abuse before being given three weeks notice in writing of his pending retirement on 18th October 2017. Dr Quigley sought an injunction restraining the purported termination of his employment pending the determination of the proceedings, on the basis that his contract of employment was not subject to a maximum retirement age, and that it explicitly set out that it was to be of indefinite duration. He also submitted that a number of other GPs who were older than him had not been been asked to retire at 65.

The HSE submitted that Dr Quigley was a Permanent Officer who was subject to a retirement age of 65, as detailed in The Public Service Superannuation (Miscellaneous Provisions) Act 2004, which superseded his position, and that he clearly knew he had to retire upon reaching the age of 65, as this was the statutory retirement age for Permanent Officers who joined the public health service at the time Dr Quigley did. The HSE further contended the retirement age of 65 was so notorious and well known, as to be acquiesced to, in the absence of any agreement in writing.

The Court granted the injunction, stating that DR Quigley had satisfied the necessary test to be applied, and he had presented a strong case which was likely to succeed. The Court was persuaded by the fact that the contractual situation as of 2001 was to the effect that the period of employment was indefinite, and this position was not altered by either party. The Court also referred to the fact that at least two doctors working in the Substance Abuse area who were employed in 2001 had continued to be employed beyond the age of 65. The Court was therefore satisfied that the balance of convenience favoured the granting of the relief sought.

This case once again illustrates the importance for employers to consider the issue of retirement carefully. Whilst the absence of a clear express condition of employment setting out a retirement age will not necessarily be fatal, an employer must at least be able to show a consistent application of their retirement age, and also a retirement age that can be objectively justified. The objective justification requirement will also apply when an express retirement age is set out in an employee’s contract of employment.

Otherwise, it may be open to employees who are retired on a mandatory basis when reaching a particular age to lodge a claim for unfair dismissal and/or a claim for discrimination on the grounds of age.