The Workplace Relations Commission have recently published a series of decisions in respect of the hot topic of “forced” retirement of employees at the age of 66. In the case of A Book Keeper v A Retail Business ADJ 00005391 it was reported that he complainant had been employed as a book keeper for a number of years and in 2016 her employment was terminated on reaching sixty six years of age.
The complainant alleged that a number of engagements had taken place with her employer between August 2015 and August 2016 whereby it was indicated to her that she would be expected to retire ultimately upon reaching her 66th birthday. Her position was that she had never received a contract of employment or a statement of her terms of employment which provided for a retirement age and that she wished to continue working. The complainant’s representatives argued that the mandatory age of retirement was prima facie discriminatory unless it could be objectively and reasonably justified by a legitimate aim. They further argued that once a prima facie case was made out the burden of proof passes to the respondent. The complainant relied on the case of Donnellan v The Minister for Justice, Equality and Law Reform  IEHC 467 where McKechnie J. held that termination of an employee’s employment solely on the basis of reaching a particular age constituted direct discrimination contrary to the Acts.
The respondent stated that it believed it had an oral contract with the complainant and that an implied term of her contract of employment was that she would retire upon reaching 65 and that her employment was terminated on the basis of that understanding and not on the grounds of age. They also argued that a pension was created for the complainant in 2004 which clearly provided for retirement at 65.
The Adjudicator noted that “for the most part undisputed evidence, points to a termination on the grounds of the complainant’s age” and “All of the engagements between them in the year leading up to her actual termination support this“.
“I find that the termination was prima facie discriminatory and that the respondent failed to provide objective, or any justification of it.
In fact, the only justification offered was the respondent’s somewhat vague, anachronistic and unlawful view that it had the right to terminate employment at sixty five because it was traditional to do so. It seems have held this view honestly, in that it held the complainant in high regard as an employee and there was no element of any reflection on her conduct or competence”. However, this provides no defence whatsoever and is essentially a plea of ‘ignorance of the law’“.
It is also interesting to note the Adjudicator’s final remarks which serve as a stark reminder to employers that “The attitude of bemused indignation that a person might have to be retained in their employment up to an indefinite age gave a good indication of how far such, in fairness widely held views, are off the mark in respect to the law relating to retirement age“.
Employers need to be aware that even if there is a provision for retirement in an employee’s contract of employment that this alone will not protect them in seeking to terminate an employee upon reaching that age unless it can be objectively and reasonably justified. Employers also need to be aware that seeking to rely on a retirement age in pension documentation also serves as no defence.