AS THE COST of living continues to rise alongside increasing life expectancy, it is anticipated that greater numbers of people will have to work beyond 66 years of age, the current State pension age, in order to pay for their retirement.
According to William Fry’s Age in the Workplace Employment Report 2019, 61% of people surveyed believe that they will continue to work beyond the age of 66.
Recent Central Statistics Office (CSO) figures support this trend, with 81,600 workers over the age of 65 registered in the Irish workforce in the first quarter of 2019, up from 78,600 in 2018.
This growth looks set to continue, with the CSO estimating that between 125,100 to 126,800 people over the age of 65 will be in the workforce by 2031.
As the workplace evolves, so too does the face of equality litigation, with age discrimination complaints becoming more prominent before the Workplace Relations Commission (WRC).
According to the WRC’s annual report for 2018, 49% of equality complaints before the WRC alleged age discrimination. This compares with 24% in the previous year.
Age discrimination is generally prohibited under the Employment Equality Acts 1998 to 2015.
Although setting a mandatory retirement age is permitted under the Acts, the retirement age must be objectively justifiable. Objective justification can include succession planning, health and safety issues and intergenerational fairness, for example.
With no statutory retirement age in Ireland at present (other than a few exceptions), mandatory retirement is usually enforced through the contract of employment.
The Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017 (the Code), provides guidance for employers on best practice around longer working.
The Code, which is non-binding, recommends that employers consider employee requests to remain at work beyond the retirement age set by the employer and includes a sample procedure for dealing with such requests.
Ensuring an Age Friendly Working Environment
As the age-diversity amongst Ireland’s workforce continues to grow, it is in employers’ best interests to ensure they are prepared for the ongoing changes. There are a variety of different recruitment positions to retirement.
Recruitment and promotion processes are prone to age bias, whether conscious or unconscious, and are historically areas leading to complaints being brought to the WRC.
To help avoid these issues, employers can:
- Ensure that recruitment material is age neutral and non-discriminatory;
- Provide anti-bias training to internal recruiters and decision makers;
- Aim for diversity amongst recruitment and decision makers;
- Use objective assessment criteria when recruiting or promoting and document how candidates scored against this assessment;
- Never base a decision to hire, not hire or promote on a candidate’s age (or any other discriminatory ground);
- Keep records of job interviews and promotion assessments;
- Specify the retirement age in operation where a retirement age is required. This can be set out in an employment handbook or, preferably, in the employee’s contract of employment.
Employers can also implement a range of measures to make workplaces more attractive to older workers.
Policies that permit flexible working and that deal with pre-retirement issues, such as financial planning, can ensure a smoother transition for older workers, regardless of their preference to retire or continue working. They can also reduce the likelihood of age-related WRC complaints.
- Introduce return to work programmes for older workers looking to re-enter the workforce;
- Implement “soft landing” programmes that allow workers to reduce hours gradually up to retirement;
- Offer flexible working options, including remote-working, part-time and flexi-time roles;
- Look to artificial intelligence and introduce virtual work-spaces and online collaboration spaces;
- Remove upper age limits on apprenticeships, intern and graduate programmes;
- Adapt the workplace physically to allow workers to work longer;
- Implement continuous learning for workers at all career levels;
- Invest in occupational health and assistive technologies;
- Raise or remove the age of retirement;
- Align its retirement age with the State pension age.
When it comes to retirement, employers should be proactive in supporting and informing employees as they prepare for this milestone.
In particular, employers can:
- Apply a set retirement age consistently, if necessary. Employers have lost cases before the WRC because they allowed certain employees to continue working passed their retirement age and did not allow others to do so;
- Implement a written policy on retirement age which can follow the example set out in the Code;
- Communicate the retirement policy to employees and ensure that employees are aware of the retirement age;
- Roll out retirement transition programmes to help employees plan and prepare for retirement.
Aoife Gallagher-Watson, a Senior Associate in William Fry’s employment and benefits department.