County sheriff loses challenge to mandatory retirement age

Seamus Mallon was appointed in 1987 to the post which involves the enforcement of money judgments by the seizure of goods if necessary
County sheriff loses challenge to mandatory retirement age

High court reporters

The Cavan and Monaghan County Sheriff has failed in a High Court challenge to the law requiring him to retire at 70.

Seamus Mallon was appointed in 1987 to the post which involves the enforcement of money judgments by the seizure of goods if necessary.

It is one of 16 similar posts in Ireland and they are non-pensionable though a sheriff is entitled to make contributions to provide to the State contributory pension.

Mr Mallon, who is a solicitor based in Castleblaney, claimed that the mandatory retirement age of 70 for sheriffs infringes age discrimination provisions of the Employment Equality Act, 1998, and of EU law (EU Framework Directive 2000/78/EC). He claimed that this was because there is no objective or reasonable justification for that mandatory retirement age.

A sheriff is entitled to an annual retainer fee of €25,630 as well as an entitlement to retain fees payable in the execution and enforcement of orders. He or she must provide their own office, clerical and other staff and must make a monthly report to the Revenue on their tax collection activities.

In his challenge against the Minister for Justice and Equality and the Attorney General, Mr Mallon argued the mandatory retirement age was unjustifiably discriminatory. The age is set out in the 1945 Courts Officers Act, which states "the age of retirement from the office of sheriff shall be 70 years".

It was discriminatory when compared with the ad hoc retirement age of 72 granted to the Sheriff for Dublin on a once off basis in 1951, it was argued. It was also discriminatory when compared with the retirement age for 72 for coroners which was raised from 70 in 2019 under the Coroners Act.

It was also argued sheriffs incurred significant losses for the years 2020/2021 due to the Covid pandemic and an extension to the retirement age would allow them to recoup such losses;

The minister opposed the challenge. She argued, among other things, that the retirement age was a matter of law, not a decision of the minister.

She also said a mandatory retirement age was legitimate on grounds including the creation of age balance in the workforce, intergenerational fairness and in standardising the retirement age in the public service.

Ms Justice Siobhan Phelan rejected Mr Mallon's challenge saying there was a "specific and separate statutory provision" for sheriffs as a class of public servant.

She was satisfied that a concern that the application of a mandatory retirement age, without a ministerial power to vary, was too blunt to satisfy the requirements of proportionality had not been substantiated.

While the lack of an occupational pension and the impact of forced retirement had been strongly argued by Mr Mallon, sheriffs could access the State pension scheme, she said. Given that they are solicitors, they were not precluded from carrying on that work without any age limit, she said.

It was not apparent to the judge that the mandatory retirement measure was either inappropriate and unnecessary for the purposes argued on behalf of the minister. She was satisfied there is no incompatibility between the law stating what retirement age should be and the provisions of the EU Framework Directive.

As Mr Mallon's case was not heard before his scheduled retirement date last May, he did not pursue an injunction preventing his retirement but instead amended his claim to include a claim for damages for breach of EU law.

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