In Mallon v The Minister for Justice and others, the Supreme Court has dismissed an appeal brought by the applicant, Mr Mallon, against a decision of the High Court in a judicial review challenge to the mandatory retirement age of 70 imposed on sheriffs pursuant to section 12(6)(b) of the Court Officers Act 1945.

Mr Mallon argued that this statutory provision was incompatible with Council Directive 2000/78/EC (the “Equality Framework Directive”) transposed into Irish law by the Employment Equality Acts 1998-2021 which established a general framework for equal treatment. The judicial review application was refused by the High Court on the basis that though the mandatory retirement age was discriminatory, the discrimination was justified on a number of legitimate objectives. The Supreme Court, in February, granted leave to appeal that decision.

Background
Mr Mallon turned 70 in 2022 and was obliged to retire. A formal submission was made by the Sheriff’s Association, of which Mr Mallon is a member, to the Minister of Justice to review the statutory retirement age. The application was refused on the basis that the Public Service Superannuation (Age of Retirement) Act 2018 introduced a mandatory retirement age which is consistently applied to all public servants. The Minister justified the mandatory retirement age on objective grounds such as planning, intergenerational fairness, age balance and consistency.

Supreme Court Decision
The Supreme Court has dismissed Mr Mallon’s appeal, finding that Section 12(6)(b) was justified under Article 6(1) of the Directive.

The Court stated:

“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 that rule.” [emphasis added]

The Court found that the aims identified by the State as justifying the application of a mandatory retirement age of 70 in the public service, and the application of that retirement age to sheriffs, clearly constitute legitimate aims for the purposes of Article 6(1) of the Directive. Standardising the retirement age at 70 across the public service and public agencies and offices, including the office of sheriff, is one such legitimate objective.

Further, the Court found, in relation to the specific circumstances of the case, that the fact that sheriffs could combine that office with “continuing practice as a solicitor (or barrister) is a highly significant factor in assessing the proportionality of requiring their retirement at age 70” as the office would, for many, not be their sole source of income. If they have made the necessary contributions, they will be eligible to receive the State Contributory Pension from age 66, as is the case for Mr Mallon. Therefore, there was no question of financial hardship in this case.