Forced Retirement Was Discrimination on Grounds of Age

The much talked about Employment (Miscellaneous Provisions) Act 2018 finally comes into effect today 4th March 2019, and whilst the focus of discussion to date has often been on the restriction on zero hours contracts, there are other noteworthy provisions being introduced that employers need to be aware of.

Another recent case dealing with the issue of the forced retirement of a legal secretary who had 40 years service, once again highlights the difficulties that employers face in implementing retirements, when they have not established a fixed retirement age, on objective grounds, either contractually or through custom and practice (Ref ADJ – 00016645).

The Complainant had been a Secretary for 40 years in a local legal practice which had been taken over in 2016 by the Respondent. The Complainant had never been issued with a contract of employment and had never seen the Employee Handbook that the Respondent claimed she had been issued with in 2010, and which they sought to reply on at the WRC hearing in respect of justifying the existence of a retirement age. The Complainant was dismissed a month after her 67th birthday and was told that “everyone had to retire at some stage” and that she was retiring later than most people did at 65. The Complainant did not want to retire and said that no issues had ever been brought to her attention about her performance, until in her dismissal letter in January 2018, it was stated that a new member of staff would be engaged, who had the necessary skills to embrace the technology that was required for a modern legal practice, to ensure it’s growth and viability into the future.

The Respondent said they had allowed the Complainant to work until she was entitled to receive her State Pension as she had indicated she had domestic obligations. The Respondent agreed that they did not criticise the Complainant’s work, but said it was out of respect for her long service, even though her work had been below par and was having a detrimental effect on the business, as she was unable due to her age to to deal with new technology that had to be introduced. The Respondent said they needed to be able to manage their business and discharge a professional service to clients.

The Adjudicator found that the defence to age discrimination available in Section 34 (4) of the EEA 1998 as amended, which allows employers to fix a retirement age, provided it is objectively justified, did not apply in this case, as the Complainant had not been correctly made aware of the fixed retirement date in advance. The Respondent was seeking to rely on a Handbook which pre-dated them taking over the Practice and the Complainant had no knowledge of it. Furthermore the Adjudicator found that the objective justification that the Respondent was seeking to rely on around age related performance was not in any way valid, as the reason explicitly stated for the dismissal in the first instance in the letter of dismissal was age, which is not permitted.

The Complainant was awarded €24,000 in compensation. She was also successful in her claim for two weeks holiday pay that was owed under the Organisation of Working Time Act 1997, as well as been awarded two weeks compensation for the Respondent’s failure to provide a contract of employment as required under the Terms of Information Act 1994.

The above case is not unusual and many employers who have failed to handle retirements correctly have paid the price, through employees taking successful claims. Employers may find it helpful to consider two recently published guides in the area of retirement. Firstly, the Irish Human Rights and Equality Commission published a guide last year which focuses on the threat of discrimination arising from the offering of fixed-term contracts to persons over the compulsory retirement age, as well as considering some of the practical issues that arise from the granting of such fixed-term contracts. The requirement of “objective justification” in setting a retirement age or in offering a fixed term contract after retirement age is also highlighted in the guide. Both employers and employees will find this guide useful to help them legally and fairly address issues that arise with dismissals due to retirement, or the use of fixed term contracts post retirement age. The WRC Guide on Longer Working that was published at the start of 2018 is also very helpful in terms of the process that employers should apply when employees wish to work past retirement age.

If you require any further information on how to deal with retirement issues in the workplace, please email info@hrsolutions or telephone (071) 9642748.