DEATH AND TAXES may be the only constants in life.
Taxes are unavoidable but advances in medicine mean that we are living for longer and longer than our forebears.
That’s positive for us all, but it’s problematic for employers who want to enforce retirement clauses or otherwise dispense with an employee’s services once they reach a particular age, typically 65.
For decades there has been an expectation that a workplace will periodically refresh itself or clear itself out, but increased longevity – and a desire to continue working – makes this more difficult in 2018 and beyond.
RTÉ and Valerie Cox
These issues have been put in stark relief in the recent decision of the Workplace Relations Commissions involving a former RTÉ reporter, Valerie Cox, who initiated her claim because she believed she was no longer receiving work from the national broadcaster because of her age.
RTÉ disputed this and the decision proved to be a costly one: Cox was awarded €50,000.
The case has received considerable media coverage, but it shouldn’t be regarded as surprising.
It has been clear for some time that the statutory employment tribunals will take action in circumstances where individuals are no longer offered work unless there’s a good reason for it.
RTÉ’s decision was not unusual – it’s one that is made by public and private bodies alike throughout the country on a daily basis, but it’s obvious that the law is going to keep intervening in this space.
The last major development in this area was the passing of legislation in 2015 which brought some clarity to the law around retirement in Ireland.
The legislation provided that it was not discriminatory to fix a retirement age as long as:
- This was objectively and reasonably justified by a legitimate aim.
- The means of achieving that legitimate aim were appropriate and necessary.
The upshot of this legislation was that having a fixed retirement age was not automatically discriminatory. However, and crucially, it meant that employers must be in a position to justify having a fixed retirement age.
That is not always easy. Employers can refer to succession planning and wanting to ensure that younger workers are motivated by the possibility of promotion, but there’s a distinct tension between such (laudable) aims and respecting the rights of older workers to keep working. That tension is possibly close to snapping.
The age of 65 is still largely the default retirement age in Ireland. Employers aren’t obliged to have a retirement age at all, but if they are considering imposing one they need to have a sound basis to do so.
Justifications for a retirement age
The courts have considered a number of different justifications for having a retirement age – and obviously every business will have a different set of justifications.
The key point though is that if you aren’t able to justify the existence of a retirement age in the first place, you’re going to be at risk if an employee brings a claim.
There were some technical arguments in the RTÉ case relating to the question of whether the broadcaster permitted working past 65 or not, but the crucial finding was that it had not established its compulsory retirement age was objectively justified.
For that reason, the commission was prepared to find that Cox had been discriminated against on age grounds by the decision not to offer her further work.
While the judgment isn’t available yet, it’s highly likely that the WRC saw no reason why Cox could not continue to provide freelance journalist services to RTÉ – there was no objectively justifiable basis to prevent her from doing so.
It’s conceivable that a retirement age at 65 (or earlier) will be appropriate in certain cases – a job that is physically active such as a welder, for example. In less clear-cut cases, employers face a distinct challenge.
In fact, it’s entirely possible that in a couple of years’ time we will not be discussing these issues at all.
Legislation outlawing compulsory retirement is already before the Dáil and there’s every chance that we will ultimately end up in a situation in which no employee is forced to retire unless there are striking reasons justifying this.
Patrick Walshe is a partner at Philip Lee.