At present, there is no compulsory retirement age in Ireland. The Employment Equality (Miscellaneous Provision) Act 2015 does, however, allow for employers to set mandatory retirement ages.
In order for an employer to have a mandatory retirement policy, they must be able to objectively justify the need for the retirement age policy.
It is vital that employers are aware that they cannot simply retire an employee, without first having a legitimate objective justification and secondly achieving this objective justification through appropriate, necessary, and proportionate means.
Employers often ask what constitutes an objective justification? While there is no exhaustive list, based on case law examples include;
• Roles which are physically demanding. It may be legitimately justified to set a retirement age where a role is physically demanding on the employee, such as docker, construction worker, labourer, etc., based on health and safety reasons.
• To create promotional opportunities and to share out employment opportunities fairly between generations.
• To have a balance of generations in the workplace, in order for sharing of knowledge and ideas.
• To avoid disputes over the fitness of the worker and ensure quality services. The Irish Tribunal has stated that it may be justified to have a retirement age as carrying out of medical tests can be humiliating to some employees.
Employers should note that their objective justification will be assessed on a case by case basis.
Companies should not apply a one size fits all approach, each case will be looked at on its own merits and the company will be obliged to put their rationale for the mandatory retirement age forward to the Workplace Relations Commission.
Over the last eighteen months, we have seen a rise in the number of high court injunctions being taken. One of the most recent injunctions taken was in October 2017.
A highly regarded doctor that works in addiction services successfully obtained an injunction from the High Court to prevent his employer, the Health Service Executive from forcing him to retire at the age of 65.
The doctor argued that he is fully fit to carry on his duties. He was issued with a contract of indefinite duration that did not specify a retirement age. He also argued that other doctors in the addiction services, with the same employer, remained working past the age of 65.
It was stated that no replacement had been found for the Doctor and that the HSE said the Doctor would be replaced with an agency worker. The Doctor was granted an injunction preventing the termination of his employment pending a full hearing of his case.
The High Court Judge has stated that damages would not be an appropriate remedy. A full hearing will take place on the 19th of December 2017.
From the outset, it seems that that the employer did not have an objective justification for enforcing a mandatory retirement on the doctor, however, we will keep an eye out for the outcome next month.
If you have any questions regarding retirement and objective justifications please contact the advice line on 01 886 0350