Kyran Fitzgerald.


Older workers not going without a fight

Casting people prematurely on the career scrap heap has implications for society in the form of added costs and deprives organisations of people with skills, says Kyran Fitzgerald.

Older workers not going without a fight

Casting people prematurely on the career scrap heap has implications for society in the form of added costs and deprives organisations of people with skills, says Kyran Fitzgerald.

When a journalist becomes the story, it is usually time to sit up.

The decision of the Workplace Relations Commission (WRC) to order RTÉ to pay €50,000 in compensation to broadcaster, Valerie Cox, following the termination of her freelance contract as a presenter of the ‘What is Says in the Papers’ slot on Morning Ireland deserves headline status, as it highlights the growing resistance on the part of employees to the setting of mandatory retirement ages.

The WRC ruling will raise eyebrows in some quarters and may of course be appealed.

It could also be followed by an increase in the number of similar claims being lodged by disgruntled employees, present and former. Ms Cox could also have appealed the enforcement in her case by RTÉ of a retirement provision in respect of her separate staff job but was unable to lodge a claim within the time limit set down.

The baby boomer generation are in the main healthier physically and a lot more empowered than was the case with preceding generations, as they head into their 60s. There are other motivating factors.

The financial crash has reduced the value of personal pension pots while often leaving property investments underwater. Many more people simply have to work on for longer than anticipated.

At the lower end of the income scale, the raising of the State pension age has left employees facing a financing gap — a big public policy concern.

Age discrimination is a major source of legal work nowadays, though as employment lawyer Richard Grogan has pointed out, a large majority of cases are settled before they reach a tribunal, or court and pass by unnoticed. What we are witnessing is the tip of an iceberg.

Some, like Ms Cox, do end up with their day in court however.

The law firm, A & L Goodbody has gone as far as to suggest in a recent blog that mandatory retirement could be on the way out, citing a recent recommendation in favour of its abolition by the Citizens’ Assembly.

But many employers argue with conviction that workforces need to be refreshed by means of infusions of new talent while some employees over time inevitably lose capacity. The fear is that by permitting greyheads to remain in post for several more years, opportunities for recruitment and promotion for the next generation will be delayed.

However, life in today’s labour market is not necessarily a zero sum game.

In many cases, compulsory retirement results in the loss of people with much still to give and there is little doubt that most public organisations suffered a loss of corporate memory and experience when they put in place schemes for early retirement.

With the right training, grounding and financial support, entrants to the jobs market can carve out new niches. Just look at Silicon Valley, or the many mainly urban enterprise hubs across the world. Better to gear our financial and State enterprise bodies more closely to the needs of an emerging generation than to carve out through compulsion a few posts in often stagnant organisations.

Casting people prematurely on the career scrap heap has implications for society in the form of added welfare and healthcare cost, never mind the opportunity costs that arise from depriving organisations of people with skills.

The EU has followed the US in putting in place rules aimed at preventing age-based discrimination. Much of the ensuing case law has focused on the handling or mishandling of recruitment and promotional competitions and on effort to combat age-based stereotyping.

There are nine grounds of discrimination including gender; marital status; family status; sexual orientation; religion; age; disability; race and membership of the travelling community, provided for in Irish law.

The main piece of legislation, the Employment Equality Act is now 20 years old. Ireland was one of the first EU member states to prohibit discrimination on the grounds of age. The young have the same right to sue as their elders.

Colm Ó Cinnéide, a reader in law at University College London, has examined EU law in the area.

He concludes that the grounding EU Directive, 2000/78/EC, left a lot of key issues unresolved and points to the

“uncertain status of the prohibition on age discrimination.”

Some scholars believe that it ranks in the legal hierarchy well behind the EU prohibition on gender discrimination which were specifically recognised in the EU Treaty.

Article 6 (1) of the Directive allows employers to make distinctions based on age where they can be justified by labour market or vocational training objectives.

An extensive jurisprudence has been developed at the European Court of Justice (ECJ).

In cases such as Mangold and Palacios, the ECJ has struck down the argument that age should be distinguished from other forms of discrimination, a view further strengthened by the ruling in the Age Concern case.

Closer to home, decisions of the Equality Tribunal, its successor, the LRC, the Labour Court and High Court have all attracted attention while the recently established Court of Appeal is likely to play an increasingly prominent part.

Last October, a high Court judge granted an injunction to a doctor whose retirement at the age of 65 was sanctioned by the HSE.

Dr Paul Quigley had been employed by the HSE’s addiction service for 19 years. He sought an injunction restraining the HSE from dismissing him pending a full hearing of his challenge.

The HSE argued that a retirement age could be implied into his contract of employment. However, the fact that two other doctors have worked in the service passed 65 proved fatal to this argument.

In late January, Solas, the further education and training authority, was ordered by the WRC to pay €20,000 in damages to a trainer who had applied unsuccessfully for a managerial post. He stated that he was asked at the interview whether he should not be ‘taking it easier, at this stage’ — he was 60.

Solas denied using these words, but acknowledged asking: “What motivates you to take on this role at this stage in your career?”

Not all such actions succeed. Employers can point to provisions in the contract, to custom and practice in the firm and to possible physical incapacity on the part of the employee. The ECJ for example upheld a German ruling that people over the age of 30 should not apply for posts in the fire service.

What is abundantly clear, however, is that the greying battalions are on the march and that employers, public and private should sit up and take notice.

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