Supreme Court decision in Mallon v The Minister for Justice, Ireland and the Attorney General [2024] IESC 20

Daniel Spring

Employment Law Update

On 15 May, the Supreme Court delivered its judgment on this appeal. The Supreme Court’s decision was eagerly awaited to provide clarification of the law in relation to mandatory retirement ages.  The issue of whether a mandatory retirement age is lawful has been complicated. This Supreme Court decision clarifies the law and upholds mandatory retirement ages as lawful, provided they are for a legitimate aim and are proportionate and necessary. 

Importantly, the Supreme Court rejected the proposition that unless it is not possible to do so, a retirement age should only be imposed after an assessment in each individual case. The Supreme Court said that such individual assessment is not necessary for a mandatory retirement age rule to be lawful. This is a very important clarification of the law in this area.

Mr Mallon, was appointed, under s 12 of the Court Officers Act 1945, to the position of Revenue sheriff for Cavan and Monaghan, in January 1987.  Under s 12 of the Act he was required to retire upon reaching the age of 70, in May 2022. Mr Mallon challenged the legality of the imposition of this retirement age upon him.  

Mr Mallon challenged the lawfulness of the mandatory retirement age by way of judicial review before the High Court.  He claimed that the section of the Act setting out the retirement age was incompatible with the Employment Equality Directive (Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation) and was, therefore, void and of no legal effect.  Under the Directive, and as established by Court of Justice of the European Union (CJEU) case law, the imposition of a mandatory retirement age constitutes age discrimination. Such discrimination may be justified provided it is for a legitimate aim and the means used to achieve that aim are appropriate and necessary.

He claimed that the mandatory retirement age was objectively discriminatory on the grounds of age and that there were no sufficient objective and reasonable grounds capable of justifying it. He also claimed that the mandatory retirement age for sheriffs was unlawfully discriminatory when compared with the mandatory retirement age for coroners (which is 72) under the Coroners (Amendment) Act 2019.  

The High Court (Phelan J) upheld the section imposing the mandatory retirement age.  Mr Mallon appealed to the Supreme Court.  The Supreme Court upheld the High Court decision. In doing so, the Court reviewed the case law relating to mandatory retirement ages, including a seminal decision, Donnellan v Minister for Justice, Equality and Law Reform [2008] IEHC 467 and decisions of the CJEU.  

In Donnellan, the High Court (McKechnie J) had held that a blanket mandatory retirement age will not be justifiable where individual assessment is possible, i.e. where it can be assessed for an individual employee whether it is appropriate to impose the retirement age.  McKechnie J in the High Court (at paragraph 104) said: “[w]here there are a large number of people involved and it would be impractical to test every person then it may be proportional to use some form of age-proxy. Conversely, where there are few people to assess and such could be done relatively easily it would not be proportionate to use blanket proxies so as to determine personal characteristics.” 

Supreme Court – individual assessment is not necessary for a mandatory retirement age rule to be lawful

Mr Mallon relied on this principle in support of his claim. The Supreme Court rejected this principle. The Court held (at para 74) “the post-Donnellan CJEU jurisprudence does not support any general proposition in the terms articulated in paragraph 104.” The Supreme Court noted that, in fact, the CJEU has recognised that it is reasonable for Member States to adopt generally applicable mandatory retirement rules without any requirement for individual capacity assessment and that the consistent and systematic and coherent application of those rules is an important part of the analysis of whether the rules are proportionate. 

The Supreme Court said at para 110(4): “It is not the case that the Directive presumptively requires case by case or role by role assessment or that such individual assessment must be shown to be impractical if a generally applicable retirement age is to be justified. Provided that the aim sought is legitimate and the means of achieving that aim are “appropriate and necessary” (proportionate), a mandatory retirement rule does not offend the prohibition on age discrimination in the Directive, notwithstanding that it does not entail an individual assessment of those subject to the rule.”

Standardising retirement age – legitimate objective

The Supreme Court upheld the section imposing a retirement age of 70 on Mr Mallon, as revenue sheriff. The Court held that the aim of the section, standardising the retirement age at 70 across the public service and public agencies and offices, including the office of sheriff, is a legitimate objective.  The imposition of the retirement age of 70 is not disproportionate, generally or with particular reference to sheriffs.  

Mandatory retirement age of 70 for sheriffs – proportionate

The Court noted that a retirement age of 70 is higher, and in many cases considerably higher, than the thresholds for mandatory retirement (at para 110(6) “considered without criticism or condemnation by the CJEU”. The Court noted that it is considerably higher than the pensionable age for the State pension.  The Court also noted that as regards the position of sheriffs, the fact that people appointed to that office are free to combine it with continuing practice as a solicitor or barrister is (at para 110(7) “a highly significant factor in assessing the proportionality of requiring their retirement at age 70.”  

The Supreme Court said that the State may provide for the application of a different retirement age to a specific category of public servants where there is a rational and objective basis for doing so. One of the considerations that the State can take into account for that is the need to maintain the effective delivery of public services in that area.  The Court found that there was a rational and objective basis for the decision to increase the retirement age for coroners from 70 to 72 -the highly specialised nature of the role of coroner and the purpose to retain experience and expertise within the coroner system.

The Supreme Court concluded that the s 12 of the 1945 Act, imposing the mandatory retirement age of 70, was justified under the Directive.

Key contacts:

For further information on this topic, please contact Aileen Fleming, partner or Laura Dillon, solicitor.

This update is provided for information purposes only and is not legal or other advice.