Employers often ask – what constitutes objective justification for a compulsory retirement age?
There is no statutory guidance on this point and the case law in this area is still relatively underdeveloped. Often, we must look to European cases for guidance. As time goes on, we are likely to see this issue being dealt with by WRC Adjudication Officers and the Labour Court in more detail.
The legal position
In Ireland, there is no compulsory or mandatory retirement age and employers are given discretion to set such a retirement age. Section 6(1) of the Employment Equality Acts 1998-2015 ("the Equality Acts") provides that:
"(1) For the purposes of the Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where (a) a person is treated in a less favourably than another person is, has been or would be treated in a comparable situation on any grounds specified in subsection (2) in this Act referred to as the "discriminatory grounds"".
Section 34(4) of the Employment Equality Act 1998, as amended by the Equality (Miscellaneous Provisions) Act 2015, provides that that:
"Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or decision of employees if – (a) it is objectively justified by a legitimate aim, and (b) the means of achieving that aim are appropriate and necessary.
In addition, section 6(3) of the Equality Acts permit an employer to offer an employee who has reached the compulsory retirement age, a fixed term contract, so long as it can be objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary.
A recent WRC decision looked at the question of objective justification for a compulsory retirement age contained in an employee's contract of employment.
In the case of Judy Bamford v Citizen's Information Phone Service Limited (ADJ-00017442) the Complainant was employed in the role of Information Officer. The Complainant's contract of employment and the Respondent's Retirement Policy, expressly provided for a retirement age of 65. The Complainant wrote to the Respondent stating that she did not intend to retire on her 65th birthday. The Respondent refused the Complainant's request to remain on in employment beyond her 65th birthday. The Complainant appealed this decision.
The Respondent ultimately decided to offer the Complainant a one year fixed term contract (as provided for in the Retirement Policy), and this contract contained an express provision that there would be no alteration or extension of the contract. The Complainant accepted the one year fixed term contract. The Complainant then sought a further extension, however, this was refused and her employment terminated on the 30th April 2018.
In refusing the Complainant's request to extend her employment further, the Respondent argued that it was objectively justified in requiring the Complainant to retire as the purpose of a retirement age was to allow promotional opportunities to other employees within the organisation. The Respondent also relied on the principle of intergenerational fairness to enable younger workers to gain promotional employment and to ensure a workforce who can fully participate in any succession planning for vacancies that may arise within the Respondent. It was the Respondent's view that the termination of the Complainant's fixed term contract would allow for either existing part time employees to be offered full time employment or the amalgamation of two part time posts to make a whole time permanent post to the next person on the panel.
The Complainant argued that the Respondent, as an organisation, had a very "flat structure" and that there did not appear to be a culture of internal promotion. The Complainant also argued that her role of part time Information Officer was an entry level position and therefore there was no promotional path for other employees to aspire to.
In his decision, the Adjudication Officer ("AO") noted that the Respondent had a specific Retirement Policy which provided an option of a once only fixed term contract to be given to an employee after the age of 65, for one year only and that the Complainant took up this option.
In terms of objective justification for the compulsory retirement age and the decision to offer the Complainant a fixed term contract, the AO noted that the EU position as outlined in Directive 2000/78/EC permits broad discretion in setting national policy on compulsory retirement ages as the "encouragement of recruitment is undoubtedly a legitimate aim given the demands of the labour market and the aims of the EU and EC".
The AO went on to find that that that the Respondent had satisfied the criteria in section 34(4) of the Equality Acts and had objectively justified its compulsory retirement age as the Complainant's contract of employment made express provision for a compulsory retirement age and that "this was designed to encourage high retention rate by creating opportunities for promotion – it creates intergenerational fairness – it ensures the renewal of employment teams".
Practical guidance for employers on retirement age
- Employers wishing or intending for employees to retire at a particular age should, at a minimum, ensure the contract of employment contains express reference to mandatory retirement age. In the absence of such a provision, it will be very difficult for an employer to arbitrarily require an employee to retire at a particular age.
- Examples of what may constitute "a legitimate aim" by an employer setting a mandatory retirement age include: - intergenerational fairness (allowing younger workers to progress); health and safety in safety-critical occupations; personal and professional dignity (avoiding capability issues with older employees); and creation of a balanced age structure in the workforce. Before setting a compulsory retirement age, or reviewing a mandatory retirement age already in place, employers should consider and/ or take advice in relation to the criteria for objective justification considered in recent case law, to consider if it is capable of being objectively justified, taking into account the particular requirements of their organisation and the roles being carried out.
- Communication with employees leading up to their retirement is vital and employers should consider what supports and services it can offer to employees nearing retirement age.
- Requests by an employee to work beyond the compulsory retirement age should be considered carefully and it is important to ensure that any decision to extend, or not to extend the employment, is made based on fair and objective grounds at the time.