Aodhán Ó Ríordáin (Dublin North Central, Labour) | Oireachtas source

When the framework employment directive, Directive No. 2000/78/EC, which outlaws age discrimination in employment, was transposed into law by the Equality Act 2004, reliance was placed on the wording of recital 14 of the directive which states: "This Directive shall be without prejudice to national provisions laying down retirement ages". The conclusion is that it was not necessary to amend section 34(4) of the Employment Equality Act 1998. Section 34(4) states: "Without prejudice to subsection (3), it shall 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...". However, the case law of the Court of Justice of the European Union has since established that national provisions laying down retirement ages could amount to age discrimination if they cannot be justified under the specific terms of the directive, in particular Article 6.1. Article 6.1, entitled, Justification of differences of treatment on grounds of age, provides that: "Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary".

The Court of Justice of the European Union has in the course of a series of judgments applied this test to national compulsory retirement schemes. The High Court, the Labour Court and the Equality Tribunal have applied this test in Irish cases. As a result, the text of section 34(4) which seems to give carte blancheto employers to set any age as a retirement age does not reflect the law as it is actually applied. It is, therefore, proposed that it be amended to reflect the law as it actually is, that is, as developed in the jurisprudence. Similarly, section 6(3)(c) of the EEA also requires amendment. Section 6(3)(c) provides: "(c) 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". The Court of Justice of the European Union in its case law has also held that the provision of fixed-term contracts on the basis of age constitutes age discrimination and would require justification under Article 6 of the directive.