The High Court has refused a radiographer’s challenge to the Health Service Executive’s decision to end her employment when she reached 65, finding that the retirement age could be implied into her employment terms.
Mr Justice Hedigan ruled that the applicant was not entitled to the reliefs she sought in judicial review proceedings. He rejected the HSE’s argument that her application should fail because it was not brought promptly, but concluded that the termination was lawful in the circumstances.
The applicant had worked in the HSE’s Orthodontic Services at St James’ Hospital in Dublin since 2002. She said she had never received written terms of employment and believed the statutory retirement age of 65 applied only to permanent officers. She also relied on assurances from a service manager that she would try to help her remain in employment, and argued that ending her employment at 65 breached EU rules against age discrimination.
The HSE said the applicant’s employment was governed by an oral agreement whose terms included a retirement age of 65. It argued that the term could be implied from the circumstances of the agreement or from public service custom and practice. It also relied on the applicant’s superannuation scheme, which referred to age 65, and disputed that the manager’s comments created a legitimate expectation that the applicant would be retained.
The judge said the applicant had acted with reasonable promptitude. He noted that retirement was first raised with the HSE in April 2009, that she received a letter about her approaching retirement in August, and that she subsequently sought legal advice. He also took account of the absence of a written memorandum of her employment terms and the HSE’s response to her concerns.
On the substance of the case, the judge found that a retirement age of 65 was implied into the employment terms. He said the applicant could be regarded as having been on notice of an applicable retirement age through her superannuation scheme, which referred to age 65 as the point at which contributions ended. The judgment also said that, even without direct knowledge, she should have known of the retirement age or could readily have found it out.
The court found no evidence of a representation capable of creating a legitimate expectation that the applicant would be kept on after retirement. It also rejected her argument under Council Directive 2000/78, holding that the directive did not prevent the State from maintaining a retirement age of 65. The court therefore refused the requested relief, including the application to quash the employment decision.