Ed Madden, BL, appears at a latest Excessive Courtroom case by which a advisor psychiatrist introduced Judicial Evaluate proceedings towards the HSE searching for a variety of reliefs in regards to the age at which he was obliged to retire and entitlement to pension.
In August 2024, the Excessive Courtroom delivered its judgment in Judicial Evaluate proceedings introduced by a advisor psychiatrist towards the Well being Service Govt and Midland Louth/Meath Psychological Well being Companies by which he sought a variety of reliefs in regards to the age at which he was obliged to retire, and entitlement to pension.
When the case got here on for listening to, the applicant, Dr Edmond Holland represented himself. The Courtroom was knowledgeable that Dr Holland was suggested by letter in November 2022 that he had reached the utmost retirement age of 70 on January 28, 2022, and was requested to finish the related type for his retirement.
The advisor had not attended at work for the reason that outbreak of Covid-19 in March 2020, and had not carried out work duties since August 2020, due initially to non-public medical considerations, and subsequently to what he described as ‘scientific difficulties’.
He remained on wage all through that point. He instructed the Courtroom that he didn’t learn the November letter till March 2023, though he didn’t dispute that it was despatched to him by WhatsApp in November 2022. The Medical Director had earlier tried unsuccessfully to hand-deliver the correspondence to him. He was faraway from the payroll on January 21, 2023, at which period he was one week off his seventy-first birthday. He didn’t discover till March 2023 that he was not receiving wage. The current proceedings had been issued in June 2023.
Whereas he had initially sought injunctive and different reliefs geared toward restoring him to his put up, he subsequently suggested the Courtroom that his place had modified, and that he was now searching for damages within the quantity of 18 months’ wage.
This was based mostly on an asserted entitlement to work till in or round July 2024 (in different phrases, an entitlement to be paid wage as much as age 72 and a half years). He additionally confirmed for the primary time that he was not difficult the State’s proper to implement and apply applicable age-based retirement laws. The laws in query supplied for a compulsory retirement age of 70 for ‘related public servants’ and gave the HSE a statutory entitlement to retire him at age 70.
Dr Holland additionally contended that he ought to have been included within the HSE pension scheme on the date on which he turned entitled to a contract of indefinite length beneath fastened time period work laws, having labored for a variety of years in fastened time period employment.
He acknowledged that he was invited to affix a pension scheme previously, however maintained that the scheme in query was for short-term and part-time workers, whereas he was, by then, a everlasting worker. He had not signed a everlasting contract on account of a dispute in regards to the description of his work location and job title within the written contract provided to him.
For its half, the HSE acknowledged that there’s and at all times was just one HSE pension scheme, entry to which was provided to Dr Holland on a variety of events since 2009. In stating this, the HSE did acknowledge that he ought to have been provided a possibility to affix the scheme in 2003.
Giving her judgment within the case, Ms Justice Marguerite Bolger stated that case legislation established the authentic goals and proportionality of a obligatory retirement age of 70. There was, subsequently, no illegal age discrimination in how the Advisor was handled, or within the HSE’s requirement that he retire when he was nearly 71 years outdated. He subsequently had no entitlement to additional wage from the time his employment was terminated.
With regard to pension, a variety of letters providing Dr Holland entry to the pension scheme in 2009, 2014 and 2016, had been exhibited in court docket. None of these provides had been responded to, or availed of by him . Finally, in 2016, he was given a ultimate deadline to affix the scheme however as soon as once more he didn’t reply. The choose stated that any problem to his exclusion from the HSE pension scheme between 2003 and 2009 was clearly ‘out of time’ (beneath the Guidelines of the Superior Courts).
Coping with his declare to entitlement to take part within the HSE pension scheme on his retirement, the choose stated that cost of a pension would usually require the individual in receipt of cost to be a member of the scheme.
Dr Holland was conscious that he was not in any HSE pension scheme all through his lengthy interval of employment. He was additionally clearly out of time to problem his non-membership of the pension scheme, and there was no foundation for extending that point. He was, nevertheless, entitled to a non-pensionable gratuity of over €141,000. This had not but been paid to him, as he had not accomplished and returned the mandatory types.
In refusing the applying, the Courtroom concluded that Dr Holland was by no means unlawfully excluded from the HSE pension scheme. His declare to an entitlement to pension now, whether or not by authentic expectation or contract or in any other case, had no foundation actually or in legislation.
Reference: [2024] IEHC 533
