11thNov
The current Irish legal position is that forced retirement is discrimination on the grounds of age which must be
objectively justified by a legitimate aim of the business and that the means of achieving this aim are necessary and
proportionate.
More employers are being faced with requests from employees to remain in employment beyond the mandatory
contractual retirement date. The volume and frequency of these requests is likely to continue to grow, in light of the
upwards only trajectory of the state pension age in future years and a potential downturn in the economy due to
COVID19.
The case law shows that there are a number of questions which an employer will have to answer in seeking to
objectively justify the setting of a mandatory retirement age, including:
Do the measures seek to achieve a legitimate aim?
Is the aim legitimate in the particular circumstances of their business?
Are the means of achieving the aim proportionate? Or are there other, less discriminatory measures
possible?
These are all questions which the WRC would consider in any action claiming that mandatory retirement ages are
discriminatory. Additional questions may arise in line with an employer’s particular business culture.
Assuming that an employer has provided for a contractual retirement age and a retirement policy which objectively
justifies the retirement age, the following in a non-exhaustive list of items that should be taken into consideration by
an employer in assessing a request by an employee to remain in employment past a contractual retirement age:
Custom & Practice: Is there a custom and practice, upon which the employee may seek to rely, of allowing
employees to work beyond the contractual retirement age? Have other employees carrying out similar roles
been allowed to work beyond the contractual retirement age? Any such custom and practice may
undermine the strength of an employer’s retirement policy.
Safety: Is the work being carried out by the employee in question safety critical? It may be that it is not
appropriate on safety grounds for the employee to continue to carry out the work in question.
Benefit Implications: Consider whether there are any pensions implications, or implications for other
employee benefits if the employee is to continue to work.
If you are a Company and require further information or advice, please do not hesitate to contact our office on
(066)7102887.