DISCRIMINATION CASES UPDATE FROM OUR EMPLOYMENT LAW DEPARTMENT RE AGE
Our Employment Law Department has recently been involved in a number of cases of complaints to the Workplace Relations Commission by Employees in respect of Discrimination on the grounds of age, involving Employers asking people to retire on a specific date.
In these cases, the Employees obtained a Pension when they reached 65 years of age but did not have Contracts signed whereby, they agreed to retire at 65 years. When “retired” they litigated.
The Adjudicators are deciding the cases on the basis of the 2017 Code of Practice on Longer Working published on the 20th of December 2017 (accessible via this link: http://www.irishstatutebook.ie/eli/2017/si/600/made/en/pdf).
The Equality (Miscellaneous Provisions) Act 2015 provides that differences of treatment on grounds of age where they are “objectively and reasonably justified”, will not constitute discrimination. There must be an objectively justifiable and/ or an appropriate or necessary aim to insist on somebody retiring e.g. too infirm to do a heavy lifting job role.
Legal advice is necessary to assess what is “objectively reasonable justification”. An example of where it would be fair and reasonable to ask somebody to retire and consult with them about retiring, is if they were at an age that would mean it was dangerous to continue in the role that they were engaged in. If they were dealing with dangerous machinery it might be a danger to themselves or to other fellow Employees. Medical Reports may need to be obtained and Risk Assessments and Safety Analysis undertaken in respect of the relevant job role and its level of danger etc. prior to any decisions being made to request the Employee to retire.
Furthermore, it should be noted by Employers that it is not enough to have a retirement age stated in the Company Handbook. It must be contained in the Contract of Employment, signed and acknowledged by the Employee, and must be the same retirement age for every Employee in a similar role in the business.
A lot of litigation is now starting off after an Employee passes the agreed retirement age and each case will be examined on its own merits.
John Boylan,
Employment Solicitor,
BDM Boylan Solicitors,
Clarkes Bridge House,
Hanover Street,
Cork.
Telephone: 021 431 3333