Retirement and age discrimination – recent developments in Ireland
30 April 2018
According to latest statistics, claims of age discrimination made up 14% of cases raised by members of the public to the Irish Human Rights and Equality Commission (“IHREC”) under Irish employment legislation. Compulsory and contractual retirement ages in particular have become an increasing area of litigation in Ireland in recent times.
Irish equality legislation has always prohibited discrimination on the grounds of age, but in the private sector the agreed retirement age was ultimately a matter of contract. While 65 has historically been a common compulsory retirement age in contracts of employment, it has become outdated in light of changes to state pension age and the fact that people are living longer lives.
Legislation in 2015 amended Irish equality law to provide that employers could still set compulsory retirement ages, but the particular age chosen had to be “objectively and reasonably justified by a legitimate aim”, the means of achieving which must be “proportionate and necessary”. This is clearly a difficult test for employers to satisfy.
A recent Code of Practice, guidelines on working beyond retirement ages and case law have provided further guidance for employers. These are discussed below.
Discrimination in Ireland is covered by the Employment Equality Acts 1998-2015 which prohibit discrimination (direct and indirect) on nine grounds, including age.
Direct discrimination is treatment of one person in a less favourable manner than another person in a comparable situation on any of the nine grounds. Indirect discrimination is where an apparently neutral provision puts persons of a particular group at a particular disadvantage, where the provision is not objectively justified by a legitimate aim and the means of achieving the aim are not appropriate and necessary. The equality legislation also prohibits harassment and victimisation under any of the nine grounds.
The Equality (Miscellaneous Provisions) Act 2015 amended section 34 of the Employment Equality Act 1998 to provide that, while employers could have compulsory retirement ages, the particular age chosen has to be objectively and reasonably justified by a legitimate aim and the means of achieving that aim must be proportionate and necessary. This is in line with the position under European Union law.
As this is an objective test, it increases the possibility of contractual retirement ages being challenged by employees who do not want to - or are not financially in a position to - retire at the age set out in their contract of employment (or any retirement policy set by their employer). The legislation also provides that an employer may offer a fixed-term contract to an employee over the employer’s compulsory retirement age; provided the provision of such a contract is objectively justified.
A Code of Practice was introduced late last year by the Workplace Relations Commission (“WRC”) with a view to assisting employers with how to handle requests from employees seeking to work longer than their compulsory retirement age.
In addition, the IHREC has now published new guidelines for employers and employees, called the “Retirement and Fixed-Term Contracts Guidelines”. These seek to ensure that older workers, who wish to continue in employment, are not discriminated against in Irish workplaces.
Recent case law
Two high-profile cases have highlighted the difficulties faced by employers when any decision based on age is subjected to challenge.
The case of Dr Anne Cleary v University College Dublin was not directly a retirement case, but it is still instructive and salutary. Ms Cleary, a lecturer at UCD, was found to have been discriminated against on the basis of age in respect of access to a promotion. She claimed she had been passed over for the promotion when a senior position was given to an academic 20 years her junior (she was 61 at the time).
Upholding the age discrimination claim, the Adjudication Officer stated in the determination that “most notably not a single of the four candidates in the 60-65 age group, to whom the claimant belongs, was promoted”. Ms. Cleary was awarded €30,000 and UCD was ordered to promote her retrospectively from February 2015 (which was over three years earlier). The Adjudication Officer also ordered that she be paid the difference in salary and benefits that should have accrued.
In the second case, Valerie Cox v RTÉ, the employer claimed it had considerable interest in “ensuring the progress of younger members of staff and for the rotation of staff”, and argued that the retirement age of 65 applied to Ms Cox and was contained within the employee handbook. The Adjudication Officer ruled that there was no compulsory retirement age of 65 in either the contract of employment of the handbook. RTÉ had sought to retire Ms Cox when she reached that age, which was found to be discriminatory because it had failed to objectively justify the particular retirement age.
Ms Cox was subsequently awarded €50,000 by the WRC, which took the further step of reinstating her to her position. It does not appear that RTÉ will be appealing the decision.
As stated above, if a business has a compulsory or mandated retirement age – or, indeed, any age-based practices that could amount to age discrimination - these may still be lawful if objectively justified. A policy or practice will be objectively justified if it is a proportionate means of achieving a legitimate aim.
Legitimate aims may include outcomes that are generally positive or in the public interest, but the policy or practice must also be proportionate. This means there should not be a less discriminatory means of achieving the desired aim.
The WRC Code of Practice sets out some examples of what may be accepted as legitimate aims that could justify setting a particular retirement age. This is not an exhaustive list and any reason relied on must be bespoke to the organisation/industry to which the retirement age is being applied. The examples include:
- 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.
The Code of Practice is not legally binding, but will be persuasive in any retirement age challenges.
Employers should now be auditing and reviewing their contractual retirement ages and their retirement policies and practices, with a view to clearly setting out:
- The legitimate aim they are seeking to achieve through the imposition of the particular retirement age.
- The reasons why that age is the appropriate mechanism for achieving the legitimate aim.
Once these have been identified, the employer should ensure that there is a good objective justification which can be supported with evidence.
More generally, employers should take steps to ensure that they have a retirement policy which reflects the recommendation in the Code of Practice and the IHREC guidelines on retirement and fixed-term contracts. The guidance on consulting with employees before retirement and how to manage requests to work beyond retirement should also be reflected in the policy.