CIF Blog: Is a mandatory retirement age discriminatory? – Cheryl Treanor

18 Apr 2019

Cheryl Treanor, Industrial Relations and Employment Services with the CIF discusses what the Code of Practice on Longer Working Hours means for the employer and discrimination on the grounds of age.

The Code of Practice on Longer Working (S.I. No 600 of 2017) sets guidance for employers, employees and their representatives outlining best practice on engagement between employers and employees in the run up to retirement and requests made to work beyond the company’s retirement age.

The Employment Equality Acts 1998 to 2015 prohibit discrimination on the grounds of age. Therefore, terminating an employee because of age could be construed as discrimination. Now compulsory retirement ages must be capable of objective justification by a legitimate aim and evidence that the means of achieving that aim is appropriate and necessary.

The Code gives examples of what constitutes a legitimate aim by an employer.

  • Intergenerational fairness (allowing younger workers to progress)
  • Motivation and dynamism through the increased prospect of promotion
  • Health and Safety
  • Creation of a balanced age structure in the workplace
  • Succession planning

The Retirement Process – Consultation

Employers should provide clear information on how retirement procedures work and where to find reliable information.

The Code provides that a worker should be given 6-12 months’ notice of the intention to retire him/her. The initial notification should be done in writing and it should be followed up with a face to face meeting. The meeting should:

  • Ensure a clear understanding of the retirement date;
  • Explore measures which would support the pathway to retirement, ie. flexible working;
  • Transitional arrangements regarding the post;
  • Offer assistance around guidance and information.

Requests to Work Longer

An employer should consider a request from an employee to work longer than their contractual retirement age. A request should be made in writing no less than three months form the intended retirement date to be followed up with a meeting between the employer and employee.

The employer’s decision should be communicated to the employee as early as practical following the meeting. Should the decision be to offer a fixed term contract post retirement age, the period should be specified, setting out the time frame and the legal grounds underpinning the new contract should be made clear. It should specify that this is decision is made solely regarding that case and does not apply universally. A decision to refuse the request, should be communicated in a meeting with the employee. The employee should also have recourse to an appeals mechanism.

The employee may be accompanied to a meeting by a work colleague or union representative to discuss such a request and in any appeals procedure.

If you wish to discuss the retirement process with a member of our IR and Employment Services team you can contact our Industrial Relations Department on 014066000.

 

Cheryl Treanor, Industrial Relations and Employment Services, CIF 

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