Retirement age a key election issue: We examine mandatory retirement under Irish law

Speed read

With Ireland's workforce becoming increasingly older, mandatory retirement has become a forefront issue for employers. It is featuring prominently in political campaigns leading up to the General Election with certain parties pledging to introduce reforms outlawing mandatory retirement ages if elected.

Newspapers recently reported on the award of €100,000 made by the Workplace Relations Commission (WRC) to a former television producer as compensation for age discrimination by RTÉ for forcing her to retire at the age of 65. We take a look at the law, and in particular, the RTÉ case.

Mandatory Retirement under Irish Law

The Employment Equality Acts (the Acts) provide protections for employees against discrimination by employers on the basis of nine protected grounds, one being age. The Acts provide that it is not age discrimination for an employer to set a retirement age for its staff if:

• this is objectively and reasonably justified by a legitimate aim
• the means of achieving that aim are proportionate and necessary

How does an employer set a retirement age?

In order to be able to rely on a retirement age, not only must the above conditions be met, but it must be in the contract of employment, or an employer would have to be in a position to show that employees are fully aware of it. It should be normal practice for employees to retire at this age.

What is a legitimate aim?

Examples of legitimate aims which have been upheld are:

• Creating opportunities in the labour market for persons seeking employment
• Establishing a balanced structure
• Motivation and dynamism through the increased prospect of promotions, also known as 'succession planning'
• Compliance with health and safety standards and regulations.

Of particular importance is that the means of achieving the aim are proportionate and necessary. For example, an employer may wish to achieve an age balance in the workforce as a legitimate aim of the business, but if that can be achieved by other less discriminatory means (such as recruiting or promoting younger staff), an employer may not be able to rely on a mandatory retirement age.

What happened in the RTÉ case?

The Complainant, Anne Roper, worked for RTÉ for approximately nine years, first as a senior producer and then as an executive producer / director. As she approached her 65th birthday, RTÉ conducted a "retirement planning course" for Ms. Roper, during which she made it clear that she wished to work past her 65th birthday as she enjoyed her job. She believed she could be productive, and she wished to have more time to arrange her pension finances. Following a lengthy internal grievance procedure and appeal, RTÉ confirmed her retirement.

Ms. Roper made a complaint to WRC alleging that RTÉ's decision to force her to retire constituted age discrimination under the Acts.

Arguments by RTÉ

Objective justification, RTÉ claimed, came in the form of intergenerational fairness, in that it was necessary to enforce a mandatory retirement age to make room for younger staff members to climb the career ladder. It was argued by Counsel for RTÉ that having a younger pool of talent would ensure that the national broadcaster could provide programming geared toward younger audiences. RTÉ exhibited several documents, which inferred that Ms. Roper was fully aware of RTÉ's policy on retirement well in advance of her reaching the age of 65. These included her contract of employment, the RTÉ staff manual and various pension documents.

Arguments by the complainant

Ms. Roper argued that RTÉ had failed to establish objective justification, and that the forcing of employees to retire at 65 therefore constituted age discrimination contrary to the Acts. It was also argued that RTÉ failed to demonstrate a legitimate need of the business, or that it was necessary; that there was no contractual or legal reason for Ms. Roper to retire at 65. Ms. Roper argued that there was no factual basis for RTÉ's contention regarding the promotion of younger staff and targeted programming.

Attention was drawn to the national broadcaster's tendency to rely on workers on short fixed-term contracts. Counsel for Ms. Roper pointed to the fact that, notwithstanding the mandatory retirement age policy in RTÉ, there were several former employees who had been retained past the age of 65. It was argued that the policy was applied in a selective manner.

Decision of the WRC

The WRC concluded that there was no legal or contractual impediment preventing Ms. Roper from continuing to work past 65. The outcome of the retirement was not so significant that it could be considered to be reasonable or necessary in achieving any aims of RTÉ. It was concluded by the Adjudication Officer that the decision to force retirement at 65 was disproportionate to the outcome achieved. Ms. Roper was awarded €100,000 in compensation, equivalent to one year's salary.

What does this mean for employers?

The issue of mandatory retirement is not a black and white one with a universal solution. Each employer's business is different, and the WRC will continue to treat each case before it on the specific facts. Employers should nonetheless continue to ensure that mandatory retirement ages are:

• well documented
• well known to all members of staff
• justified as a necessary and proportionate way to achieve a legitimate aim.

While this is the current legal position, political discussion of the topic may be an indication that reform in this area will be seen in the near future.

For more information in relation to this topic, please contact Joe Mahon, Solicitor, Triona Sugrue, Knowledge Lawyer, or any other member of the A&L Goodbody Employment team.

Date published: 4 February 2020