LAW IN PRACTICE
Too old to work? Inconsistent decisions in compulsory retirement age cases have created a headache for employers. revealed a 343% increase in complaints related to discrimination on grounds of age.5 This is feasibly due to the contrasting decisions in the area, the resulting confusion caused to employers, and their somewhat burdensome duties in relation to employees nearing retirement.
Age as a protected ground in discrimination claims Katherine McVeigh BL
Age has been described as a “relative newcomer” to the list of characteristics that are protected against discrimination by the courts.6 The UK Supreme Court in Seldon v Clarkson Wright and Jakes7 has emphasised the importance of putting
1
The recent case of Anne Roper v RTÉ has again highlighted the difficulty for
“stereotypical assumptions out of our minds”. The Court also made reference to
employers regarding compulsory retirement ages. On December 19, 2019, the
assumptions pertaining to age and capacity, and stated that “these assumptions no
Workplace Relations Commission (WRC) awarded ¤100,000 to Ms Roper in
longer hold good (if they ever did) in times of increasing longevity”.8 As a relatively
compensation for discrimination on the grounds of age. Ms Roper was an executive
new ground of discrimination, it appears that courts are finding it difficult to secure
producer/director with RTÉ at the time of retirement and requested to work for a
legal boundaries.9
further 18 months beyond the age of 65. This request was refused by RTÉ following
The complexities of age discrimination have recently been demonstrated in Poland,
an internal grievance procedure. The decision in Anne Roper is currently under appeal
where new legislation requires senior judges to retire at 65 rather than 70. The effect
to the Labour Court.2 Nevertheless, the case has highlighted the contradicting
of this legislation was the immediate retirement of numerous Supreme Court judges.
approach of the adjudicating bodies in this area. What is important from the point
This resulted in the case A.K. and others (Independence of the Disciplinary Chamber
of view of employers is that the WRC refused to accept the argument advanced by
of the Supreme Court),10 which was brought to the CJEU in an expedited procedure.
RTÉ that the retirement age of 65 was to ensure “intergenerational fairness”,
This legislation has had a considerable impact on the rule of law in Poland.11
allowing younger workers to progress in RTÉ. This is despite the fact that this
Ireland, unlike other EU countries, does not have a fixed retirement age for workers.
argument has been endorsed consistently by the High Court and the Court of Justice
The usual retirement age is 65 for employees but workers subsequently remain
of the European Union (CJEU). “Intergenerational fairness” is also provided as an
ineligible for State pensions until the qualifying age of 66. This remains the situation
example of a legitimate aim for a compulsory retirement age in the Code of Practice
despite the European Commission’s repeated call on member states to reduce
on Longer Working.3 The case of Anne Roper has again brought to light the
disparities in statutory pension ages, and to review unwarranted mandatory
balancing act that employers must engage in when dealing with employees nearing
retirement ages.12 In March 2020, the EU13 announced that the “priority of EU policy
retirement. On the one hand, employers are asked to approach older employees in
is to encourage Europeans to remain in work longer, to ensure the sustainability of
an equal and consistent way. This is primarily to avoid embarrassment resulting from
pension systems and adequate social protection”.14
testing the capacity of older employees. On the other hand, employers must deal
The Public Service Superannuation (Age of Retirement) Act 2018 was enacted to
with employees on an individual basis if a request is made to remain in work beyond
address this issue and increases the retirement age of most public sector workers
a normal retirement age. This individualised approach towards older employees is
from 65 to 70 years of age.15 Public sector workers who are not covered by the 2018
contrasted with the approach taken by the courts that the purely individual needs
Act include: the President; the judiciary; the Master of the High Court; and, county
of a business will not act as a legitimate aim to objectively justify a compulsory
registrars. Notwithstanding this governmental intervention, there has been a
retirement age. A court will enforce the far-reaching duty of an employer to facilitate
significant increase in litigation in this area.16 This has resulted in contrasting
an employee with alternative roles if such a request is made. Surprisingly, this duty
decisions in relation to objective justification of a retirement age.
exceeds what is required of an employer when dealing with an employee with a disability. The Supreme Court has recently confirmed that the duty of an employer
Objective justification of a retirement age
to provide reasonable accommodation does not require an employer to find an
Discrimination on grounds of age is prohibited under the EU Framework Directive,17
4
alternative job for an employee with a disability. The 2018 WRC Annual Report
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THE BAR REVIEW : Volume 25; Number 2 – April 2020
the Employment Equality Acts 1998-2015, and the Constitution.18 The legal context