The High Court has refused a consultant psychiatrist’s judicial review challenge concerning his retirement from the Health Service Executive (HSE), salary and access to its pension scheme. The court did not make final orders, including on costs; the case was listed for a further mention on 13 September 2024.
In a judgment delivered on 30 August 2024, Ms Justice Marguerite Bolger said the applicant had reached the maximum retirement age of 70 applicable to his employment status. The HSE notified him of this by letter dated 2 November 2022. He was removed from the payroll on 21 January 2023, when he was a week short of his 71st birthday. He said he did not read the letter or notice that his salary had stopped until March 2023.
The applicant sought damages equivalent to 18 months’ salary, arguing that he should have been paid until around July 2024, when he would have been 72 and a half. He was no longer seeking restoration to his job and confirmed he was not challenging the State’s right to apply age-based retirement legislation.
The judge said the 2018 legislation authorised the HSE to retire him at 70. She found no unlawful age discrimination and said he had established no basis for further salary after his employment ended on reaching the mandatory retirement age. She also accepted the HSE’s stated reasons for compulsory retirement at 70, including succession planning, service continuity and intergenerational fairness.
The main focus of the case was the applicant’s claim that he had been unlawfully excluded from the HSE superannuation pension scheme. He argued that he had a legitimate expectation of a pension and gratuity, and that he should have joined the scheme after becoming entitled to a contract of indefinite duration in 2005. The HSE said there was one scheme and that it had offered him access on several occasions between 2009 and 2016. The judgment records that he did not accept those offers.
The applicant was not a member of the pension scheme and had made no contributions. The judge said he was out of time to challenge his non-membership, with no basis to extend the deadline. She added that even if the claim were within time, he had not been unlawfully excluded: the HSE had offered him membership and he had not taken it up. He was, however, entitled to a non-pensionable gratuity of €141,508.71, which had not been paid because he had not returned the required forms.
The court also held that claims under the Protection of Employees (Fixed Term Work) Act 2003 were not suitable for judicial review. The judge said the Workplace Relations Commission would have been the more appropriate route for those statutory complaints.