Employee gets injunction to restrain HSE attempt to impose a retirement age

Element Six Pension Case

A recent High Court Judgment serves as a reminder to employers who have a retirement age for employees that the first issue they must consider is whether they are entitled under contract to retire the employee and whether the retirement age can be objectively justified.

In Quigley v HSE [2017] IEHC 654 the High Court granted an injunction to the applicant to restrain the HSE from dismissing him on the grounds that he had reached the mandatory retirement age.

Background

The Plaintiff, Dr Quigley is a doctor working in the HSE and specialises in cases of substance abuse. He turned 65 on the 19 October 2017 and was informed by the HSE 3 weeks prior to his 65th birthday that his employment was to end the day before his birthday due to his having reached the purported maximum retirement age. Dr Quigley sought an injunction from the High Court preventing the HSE from forcibly terminating his employment on the basis of his age.

In support of his application, Dr Quigley pointed to the fact that his contract of employment expressly stated that his employment was to endure for “an indefinite period” and that a mandatory retirement age of 65 did not appear in the contract. In addition, a number of his colleagues, who had entered contracts of employment with the HSE on the same terms as him, testified that they had worked beyond the age of 65 with no difficulty and that the HSE had not attempted to terminate their employment due to having reached a purported mandatory retirement age.

The HSE argued that it was an implied term in Dr. Quigley’s contract that he had to retire at the age of 65.  When Dr Quigley entered into the terms of his employment in 2001, section 19 of the Health Act 1970 stated that any permanent officers of the Health Boards (subsequently the HSE) were required to retire at the age of 65. This legislation was amended in 2004, but the amendment only applied to contracts of employment entered into after the 1st April 2004.  The HSE considered Dr Quigley’s employment to be subject to the provisions of the 1970 Act. However, other doctors in Dr Quigley’s field stated that they considered Dr Quigley to have been treated differently to any other colleagues and that they were not aware of any other doctor who had been obliged to retire at the age of 65, despite also being subject to the 1970 Act.
Gilligan J granted an injunction preventing the HSE from terminating Dr Quigley’s employment until such a time as the Court could hear a full trial on the matter.
The absence of an express retirement age in a contract of employment is not necessarily fatal but it can be very difficult in practice to demonstrate that a retirement age is implied into a contract.  If other employees have worked beyond the retirement age that will present a difficulty.

Even if a mandatory retirement is covered in a contract of employment, it is necessary that employers can objectively justify it, as mandatory retirement can still be subject to a challenge under the Unfair Dismissals Acts or on age discrimination grounds.

This is a topical area and is one for employers to watch.  It is likely that there will be legislative developments in this area in 2018. The Employment Equality (Abolition of Mandatory Retirement Age) Bill 2016 (the “Bill”) was introduced last year though it is likely to be amended if it is to be enacted, and the Citizens Assembly in July recommend to the government that mandatory retirement ages be abolished.

For more information on the contact Marc Fitzgibbon, Partner or Emer Murphy Solicitor in our Employment Law and Pensions Group.