The area of age discrimination is an area of law which is in flux and which is very topical at the moment, given the fact that the age for qualification for the state pension has increased in recent times.
It is legal for an employer to specify a mandatory retirement age within a contract of employment.
However, where a contract of employment provides for a specific retirement age, the law now states that the onus is on the employer to establish that the mandatory retirement age is objectively justified by a legitimate aim and that the means of achieving this aim is appropriate and necessary.
If an employee feels that they there is not a legitimate aim to be achieved by their early retirement, or that there are alternative measures whereby the means of achieving the desired legitimate aim could be achieved, but your employer is not open to exploring these options; they may have grounds for a complaint on the grounds of age discrimination. Such a complaint is brought before the Workplace Relations Commissioner.
If an employer cannot satisfy their legal obligations as set out above regarding justification of your retirement age; then the mandatory retirement provision will be interpreted as direct discrimination, on age grounds, contrary to the Equality Legislation and the employee will be entitled to compensation and/or reinstatement.
The legislation does not establish precisely what constitutes a legitimate aim. However, case law from the European Courts has established that a legitimate aim is considered as an aim which is a social policy objective, rather than being based purely on individual business reasons. For example, the Irish Labour Court has accepted that health and safety concerns will constitute a legitimate aim. Accordingly, where a tram company introduced evidence to the effect that up to date medical evidence had established that the ability to operate a tram safely diminishes with age, the Court held that the imposition of a contractual retirement age in those circumstances was appropriate and necessary for ensuring a legitimate aim; namely health and safety of staff and passengers. Similarly, mandatory retirement ages for winchmen and those who are involved in search and rescue operations were upheld in circumstances where the employer introduced evidence that respiratory capacity, musculature and endurance diminish with age. However, mandatory retirement ages which exist purely for cost cutting reasons have not been accepted as existing to achieve a legitimate aim.
Where the WRC is satisfied that the aim which the employer seeks to achieve, by use of mandatory retirement ages is legitimate; the Adjudicator must also be satisfied that the means of achieving the aim is necessary and appropriate. When reaching a decision regarding necessity; relevant factors would include whether there was a possibility that the employee might work in an alternative role, or work alternative hours safely and in compliance with the employer’s legitimate aim. When deciding whether the mandatory retirement provision is appropriate, relevant factors which the Adjudicator will take into account would include, for example, the fact that an employee will not receive their pension for one-year post retirement or the fact that other colleagues were facilitated in working beyond retirement age, while this particular employee was not.
Where an employee believes that they have grounds for complaint, it is imperative, generally speaking, that a complaint is lodged with the WRC within 6 months. There is no necessity for an employee, or an employer, to have legal representation in respect of their complaint to the WRC. However, an experienced employment law solicitor will be very familiar with this area of law and will be in a position to take detailed instructions to apply existing case law to your own particular circumstances to ensure the best possible outcome for you.
At Cantillons Solicitors, our General Litigation Team have extensive experience in the area of Employment Law and have successfully represented both Employers and Employees in employment law cases both before the WRC and the Labour Court.
Contact us at Cantillons Solicitors at +353 (0)21 -4275673 or [email protected] if you would like more information.
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