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.