A lawyer has said that 'companies must catch up with the law' after the Work Place Relations Commission (WRC) found that an RTÉ TV producer was discriminated against when she was forced to retire aged 65 and won €100,000 compensation.
Pat Mullins, litigation partner at BDM Boylan Solicitors in Cork said their practice has seen a 40 – 50% increase in cases of retirement and age discrimination in employment law over the last five years – excluding cases which are withdrawn or settled.
“People are living longer, healthier lives. Unless you're in a job which requires huge physical exertion, you may be able to work productively up to 70 and beyond," he said.
Mr Mullins said the law has been quite clear since 2018 when the Code of Practice on Longer Working (2017) was incorporated into the Industrial Relations Act, 1990.
The Code sets out best practice in employer - employee engagement in the run-up to retirement age.
It allows employees to request to remain at work beyond the retirement age - whether an age is specified in their contract or not - and it requires employers to engage with this process.
An employer can only oblige staff to retire against their will if they can show that there is objective and reasonable justification for them to cease working in that role.
A breach of the code can be appealed to the WRC. “If someone is capable and shows drive and ambition, the onus is on the employer to show why they can justify obliging them to retire against their will," Mr Mullins said.
“The Code of Practice is the law, but there seems to be a general ignorance about it and of what employers' obligations are under it.
“The law has moved on and employers need to move on with it."
Mr Mullins said that the widening gap between retiring at 65 and the State pension age of 66 (which will increase to 67 in 2021 and 68 from 2028) is a serious issue “which is now only starting to rear its head.” He said: “We now have people forcibly removed from employment at 65 which is not the State pension age.
“There are 30,000 people beyond 65 who are retired but are not yet entitled to their pension.
“So people are signing on for the dole for the first time in their lives and this can have a huge psychological impact.
“It's a challenge for Government."
Neil McDonnell, chief executive of ISME (Irish Small and Medium Enterprises Association), echoed Mr Mullins concerns and advised employers to upwardly revise their retirement age "to avoid employee grievances from developing".
He said that although legally there is no mandatory retirement age in the private sector, "it is highly unusual for a contract of employment not to contain a retirement date".
"Like any other type of contract, there should be a term that identifies when the relationship starts and a mechanism to show that the agreement has been fully “discharged”. Employers need to have a clear policy on retirement that is an established contractual term, and it needs to be applied consistently and fairly."
RTÉ has, for the second time in three years, been found to have discriminated against staff when they obliged them to retire against their will. The WRC directed RTÉ to pay TV producer Anne Roper €100,000, or the equivalent of one year’s salary, in compensation for what it said was discrimination against her on the grounds of her age.