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02.04.2019

Mandatory retirement risks

 

 

Rising age discrimination risk

The Irish Human Rights and Equality Commission (IHREC) has seen an increase in the number of age discrimination cases in recent years. Why is this?

Mandatory retirement challenges

Better health in older age is leading to longer working lives. An aging Irish workforce and the increase in the state pension age have combined to produce an increase in the number of challenges to workplace policies imposing mandatory retirement ages.

WRC Code of Practice

In 2017, the Workplace Relations Commission (WRC) published a code of practice on longer working based on the findings of a government interdepartmental group. The group’s findings concluded that retirement age was increasingly impractical and that there was a demand for longer working from employees.

The law on compulsory retirement

The Employment Equality (Miscellaneous Provision) Act 2015 provides that employers may set compulsory retirement ages provided the age specified is ‘objectively and reasonably justified by a legitimate aim’ and the means of achieving that aim are ‘proportionate and necessary’.

Legitimate aims

The WRC code of practice sets out the following list of examples of what may be accepted as legitimate aims that could justify setting a particular retirement age:

progression of younger employees in the organisation promotion prospects to motivate employees health and safety reasons ensuring a balance of ages across an organisation succession planning dignity around potential capability issues that could arise with older workers

Age discrimination case at the national broadcaster

In Valerie Cox v RTÉ, the WRC ordered RTÉ to award €50,000 to Ms. Cox. RTÉ argued that it had a legitimate interest in ‘ensuring the progress of younger members of staff and for the rotation of staff’. RTE also argued that the retirement age of 65 was contained within the employee handbook.

The WRC heard that Ms Cox had two contracts of employment, one full-time and one casual that rostered her for one week in every six. She was notified on reaching the retirement age of 65 in March 2016 that she would remain on the roster under the casual contract but only after a period of time had elapsed after her retirement from the full-time role. In December 2016, RTÉ told Ms Cox that her casual contract had been terminated. The WRC heard that two employees over the age of 65 were employed on the programme. Ms Cox applied for an extension to the casual contract but did not receive a response.

In its adjudication, the WRC stated that the employee handbook provided for working beyond the age of 65 ‘at least in relation to this category of employee’, that there was no retirement age contained in the employment contract and that RTÉ had failed to objectively justify the particular retirement age. The adjudication officer found that Ms Cox had been discriminated against and awarded her €50,000 and reinstatement into her position.

Promotion and age discrimination

Promotion competitions are another area where employers may fall foul of employment equality legislation.

In the case of Dr. Anne Cleary v University College Dublin (UCD), Dr. Cleary, a 61-year-old lecturer employed by UCD, was found to have been discriminated against on the basis of age after she had been passed over for promotion in favour of an academic 20 years her junior.

The adjudication officer noted that none of the four candidates in the 60-65 age bracket, which included Dr. Cleary, were promoted. The WRC ordered UCD to award €30,00 to Dr. Cleary, to promote her retrospectively from February 2015 (three years previous) and to pay her the difference in salary and benefits she should have accrued in that time. A severe penalty.

Review your contracts and retirement policies

It is important now more than ever to review your work practices in relation to how you handle older employees who are approaching retirement. You should review your retirement age to make sure it is reasonable and objectively justifiable. You should ensure that the WRC code of practice on retirement and the IHREC guidelines and recommendations are also taken into consideration.

Your contracts and employee handbooks should also clearly set out the retirement age and provide an opportunity to appeal any decisions made in relation to retirement. Promotion and recruitment policies should also clearly state that your organisation will not discriminate on the grounds of age and keep this in mind when translating the policy into practice.

Are your employees approaching retirement age? To discuss this or any HR issue affecting your organisation, please call 01 886 0350 to speak with a consultant.

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