In a recent case, John O'Brien v PPI Adhesive Plastics, the WRC ordered a company to pay its former employee 35,000 for compulsorily retiring him despite his wish to stay on in his job.
The complainant was retired against his wish, when he turned 66 years of age and had accrued 46 years of service with the company. The WRC was not satisfied that the company operated a universally applied compulsory retirement age nor that the alleged policy satisfied a legitimate aim.
In February 2016, the complainant indicated to the company that he wished to work beyond his 65th birthday, which was approaching. He put the request to work to his 66th birthday in writing, which request was accepted. The complainant later told the company that he would like to remain in work beyond age 66. His application was rejected so he appealed internally, without success. In the course of the appeal, the company referred to a "2014 agreement" on retirement, which the complainant was unaware of.
The existence of a compulsory retirement age in this case was contested. The complainant said that he was never advised of a company retirement age. He had not been provided with a contract of employment. He was not a member of the relevant union. In addition, he maintained that other employees had been employed beyond age 66.
The company claimed that the normal retirement age of 65 years arose in two circumstances: for union members, by virtue of a collective agreement and, for non-union employees, by custom and practice. However, the adjudication officer found there was much confusion around the company's retirement policy. He was not satisfied that the company operated a universally applied compulsory retirement age, that the company's mandatory retirement age satisfied a legitimate aim or that the means to achieve that aim were appropriate and necessary.
This case emphasises the importance of employers:
1. being able to demonstrate that a compulsory retirement age applies in their organisation; and
2. understanding the purpose, i.e. legitimate aim, of the particular retirement age in question.
Before an employer can enforce a retirement age, it must be clear what that age is. Whilst it is not impermissible for different grades or categories of worker to have different compulsory retirement ages, the differences must be explained and any confusion arising from such a practice may affect the enforceability of the retirement ages.
An employer's ability to rely on a legitimate aim may be undermined by the employer's actions in practice. A clear understanding of the purpose of a retirement age from the outset mitigates the risk of acting in a way that undermines that purpose at a later stage. The adjudication officer described the company's arguments in this case as "somewhat incomplete and unconvincing". Employers should also have regard to the WRC's Code of Practice on Longer Working (available here) and the Irish Human Rights and Equality Commission's Guidelines on Retirement and Fixed-Term Contracts (available here).