Legal

Forced Retirement Deemed a Discriminatory TerminationIn a recent case before the Workplace Relations Commission, A Bookkeeper v A Retail Business (ADJ-5391), the Adjudication Officer held that the imposition of a mandatory retirement age without a contractual basis constituted an unlawful discriminatory termination.

This decision is a reminder to employers that there is no automatic retirement age for private sector employees in Irish law.

Background

The employee was employed at the respondent family business as a bookkeeper. She had worked for the business for 12 years without a contract of employment and she was not provided with a statement of her terms of employment. She submitted that she was expected to retire on two occasions, namely her sixty-fifth and sixty-sixth birthdays. However, as there was no written agreement in place which provided for her retirement, she sought to continue working.

The employer claimed that an oral contract was in place and an implied term of the complainant's employment was that she would retire at the age of 65. The employer therefore terminated her employment and claimed that this was necessary for the management of the business. The employer also submitted that a pension scheme was in place which clearly foresaw a retirement age of 65.

The Adjudication Officer held that no justification had been provided for the required retirement and the termination of employment was therefore discriminatory on the grounds of her age. An award of €12,000 was made for the breach of the employee's rights under the Employment Equality Acts 1998 - 2015. The respondent was also found liable under the Terms of Employment (Information) Act 1994 for failing to provide the complainant with a statement of the terms of her employment and a further award of €630 was made in this regard.

Legal position

The Equality (Miscellaneous Provisions) Act 2015, which commenced on 1 January 2016 permits an employer to determine a mandatory retirement age provided the age chosen is objectively and reasonably justified by a legitimate aim and the means of achieving that aim are proportionate and necessary.

Possible justifications for the imposition of a mandatory retirement age include:- promoting access to employment for younger employees by distributing the work between generations; ensuring the health and safety of employees in physically demanding roles; and creating a workforce of balanced age and experience.

Not all employers are fully familiar with the requirements of the 2015 Act in relation to retirement ages. As the Adjudication Officer observed in this case, the employer's "attitude of bemused indignation that a person might have to be retained in their employment up to an indefinite age gave a good indication of how far such, in fairness widely held views, are off the mark in respect to the law relating to retirement age".

Contributed by Catherine O'Flynn of William Fry.