In the case of Brendan Beirne v Rosderra Irish Meats Group ADJ00027036 the Workplace Relations Commission (“WRC”) addressed the application of mandatory retirement ages and how to deal with requests for longer working.
In this decision, the Adjudicator, Shay Henry, held that although the Respondent met the requirements set out in the Employment Equality Act to rely on a mandatory retirement age, it failed to comply with the 2017 Code of Practice on Longer Working. The Adjudicator awarded €30,000 for this failure on the basis that to do otherwise would make the Code of Practice “meaningless”.
Facts: The Complainant’s contract of employment and collective agreement under which he worked, together with his pension all provided that he was subject to a mandatory retirement age of 65 years. The Complainant was forced to retire from his employment as a General Operative with the Respondent, on 18th August 2019 upon reaching 65 years of age. The Complainant was in good health and performing well. In June 2019 the Complainant informed his manager that he was seeking to work beyond his 65th birthday. In a letter dated 10th June 2019, the Respondent referred him to the collective agreement in place regarding the retirement age, which was referenced in his contract of employment. Despite correspondence over the course of July 2019 between the Union and the Respondent, the Respondent confirmed that they would not accede to his request to work longer and retired him at 65. Crucially, the Respondent did not provide the Complainant with reasons for its decision other than the contractual provisions, nor did it provide him with any appeal mechanism. The Complainant claimed that the Respondent’s refusal of his request for longer working amounted to discriminatory dismissal based on his age.
Conflicting evidence was given by the parties as to whether the mandatory retirement age within the Respondent was enforced consistently. The Respondent gave evidence of two employees who were retained longer than their 65th birthday due to their very specialised skill set and the company not being in a position to replace them by the retirement dates.
The Respondent relied on section 34 (4) of the Employment Equality Act (“EEA”) which provides:
(4) Without Prejudice to subsection (3) it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class of description of employees if-
(a) it is objectively and reasonably justified by a legitimate aim, and
(b) the means of achieving that aim are appropriate and necessary.
The Respondent argued that the burden of proof is on the Complainant to prove that he has been discriminated against and denied that a mandatory retirement age was discriminatory. It also argued that Section 34 (4) and 37 (2) of the EEA permits compulsory retirement ages and that their imposition is objectively justified, and proportionate in meeting legitimate aims including to “ensure consistency among all employees in relation to retirement; to create certainty in succession planning; to ensure cohesion in the workforce; to ensure a uniform retirement age; to ensure that there is an age balance in the workforce and; to free up jobs so that younger workers can enter to the workforce and younger workers have opportunity for advancement/promotion”
Decision:
The Respondent argued that the burden of proof falls on the Complainant. The Adjudication Officer, Shay Henry, held that a mandatory retirement age is discriminatory “per se” and therefore the burden of proof is on the Respondent. However, the Adjudicator used the same criteria as the Respondent relied upon in respect of being able to rely on a mandatory retirement age as per Section 34(4) of the EEA::
- That there is a contractual retirement age that forms part of the terms and conditions of employment;
- That the policy is objectively and reasonably justified by a legitimate aim; and
- The means of achieving that aim are appropriate and necessary.
Whilst condition (a) was clearly met, the Adjudicator went on to state that “even if the contract does contain an enabling clause (or an implied clause through a collective agreement) this does not mean that the employer has a unilateral right to enforce retirement against the employee’s will”
The Adjudicator accepted the Respondent’s evidence that the retirement age was objectively and reasonably justified by a legitimate aim and applied consistently. However, the Adjudicator took exception that none of the reasons and justifications were notified to the Complainant when he was seeking to work beyond his retirement age.
In consideration of the Complainant’s request for longer working, the Adjudicator stated:
“Where a decision is to refuse the request, the grounds for the decision should be set out and communicated in a meeting with the employee. This will help the employee to understand why the request has not been granted, and give the employee confidence that his or her case has been given serious consideration and that there are good grounds for refusing the request. The applicant should have recourse to an appeals mechanism, for example through the normal established grievance procedures in the organisation”.
In awarding the Complainant €30,000.00 compensation for his discriminatory dismissal the Adjudicator stated that “In my view there is an obligation on the employer to present the employee making the request to work longer with the specific grounds why his or her request is being refused. The employee should have the opportunity to test these arguments before a final decision is made.”
Takeaway for Employers:
Although enforcement of a mandatory retirement age may be objectively justifiable in order to meet legitimate aims, it appears from this decision that where an employee has sought to work beyond the retirement age that the objective justifications relied upon for having the mandatory retirement age must be communicated in writing to the employee with evidence to show how or why his request is being refused. Reference should be made to the 2017 Code of Practice for Longer Working before a final decision is made.
This case may well be appealed by the Respondent to the Labour Court.
Authors – Nicola MacCarthy, Anne O’Connell
11th April 2023