In the case of employee V Radio Teilifís Éireann (“RTÉ”), the respondent, RTE failed to justify their actions of making an employee (the complainant) retire at its retirement age of 65 which amounted to discrimination under the Employment Equality Acts 1998-2015. The court found in favour of the employee and awarded them €100,000 in compensation for age discrimination.
Background to the case
The complainant commenced employment with RTÉ in 1988 and had been working as an Executive Producer at the time they turned 65 years of age. The employee was not aware that the mandatory retirement age was 65 as it was not outlined in their contract. RTÉ had invited them to attend a retirement planning course in anticipation of their retirement. The complainant notified the HR department of their request to remain at work after the age of 65 for a period of approximately 18 months. After their request was declined and consequently appealed, they raised a formal grievance through RTÉ's grievance procedure which was not resolved. Their employment was terminated with effect from their 65th birthday.
The complainant argued that the decision to terminate their employment upon reaching the age of 65 was unlawful because it discriminated against them on the grounds of their age in that she was treated less favourably than other employees which was a breach of the Employment Equality Act 1998 -2015.
Mandatory retirement ages must be objectively justified by a legitimate business aim. The WRC issued a Code of Practice on Longer Working in 2017 which sets out the following legitimate business aims that employers could rely on to justify a mandatory retirement age:
- Intergenerational fairness (allowing younger workers to progress).
- Motivation and dynamism through the increased prospect of promotion.
- Health and safety (generally in more safety-critical occupations).
- Ensuring a structure of balanced age.
- Personal/professional dignity, or
- Succession planning.
The company failed to meet the demands of the employee to make reasonable or proportionate accommodation by transferring the employee to another role on a Fixed-Term contract. The WRC were not in favour of the company’s justification for requiring mandatory retirement at 65 as being to ensure "inter-generational fairness" to enable younger employees to progress and enable RTÉ to "produce programmes that are of interest and relevance to a younger audience". The WRC concluded that Inter-generational fairness was an issue which was confined to the department in which the employee had worked. The company’s objective justification defence failed as they did make reasonable accommodation for the employee continue working for 18 months as requested. The measure of forcing the employee’s retirement was not necessary and could not be objectively justified.
What should employers do now?
Employers should review their current process of handling requests from employees to work beyond any compulsory retirement age. Not only should employers implement a policy, but they should also engage with the employee and consider their request to work longer. It is insufficient to rely on inter-generational fairness and Health and Safety as objective justification for forcing an employee to retire. In practice, this means that you must have a legitimate business aim that justifies the retirement age. You must also provide evidence that the retirement age is an appropriate and necessary way of achieving that aim.
An employer should regularly review its Retirement Policy and demonstrate that its aims are lawful and there are no other more appropriate means of achieving them. (i.e. temporary or fixed term arrangement)
Employers should put in place a clear and comprehensive retirement policy that unambiguously sets out both the existence of any mandatory retirement age (which should be mirrored in staff contracts of employment) and the objective justification for same. This policy should be regularly reassessed and updated to ensure that the identified "justification" continues to be appropriate and necessary.
Consistency is crucial when enforcing a mandatory retirement age, particularly when considering and consulting with employees on their requests to work beyond such an age on a fixed-term basis or otherwise. Employers should consider the effect the mandatory retirement age will have on the employee against the impact of the organisation.
If you have a concern about retirement for an employee you can contact Emma at SFA on 01 605 1668 or at email@example.com or visit our HR and Employment Law advice section on www.sfa.ie