The proportion of older workers, and, in particular, workers who want to continue in employment beyond what would have been regarded as the traditional retirement age, i.e. 65 years of age, is forecast to grow significantly in the future. Employers need to be prepared for this in the context of: managing requests from people to continue to work beyond what would have been regarded as the normal retirement age; developing employment practices and procedures appropriate to increasingly age diverse workplaces that encourage retention of older workers and longer working lives; and; the changing statutory and legal framework regarding retirement and pension entitlements.
The Workplace Relations Commission (“WRC”) has prepared a code of practice (the “Code”) around the issue of longer working, setting out best industrial relations practice in managing the engagement between employers and employees in the run up to retirement age in the employment concerned.
The main purpose of the Code is to set out, for the guidance of employers, employees and their representatives, best principles and practices to follow during the engagement between employers and employees in the run up to retirement including responding to requests to work beyond the retirement age in the employment concerned.
The Code highlights that, from an employer perspective, managing an older and diverse workforce in a positive way will deliver greatest value by looking at how best to maximise the experience and skills of older workers, and to harness and accommodate those experiences and skills to the advantage of the business.
The Code recommends that delivering a positive message around embracing and valuing employees of all ages, raising age discrimination awareness and having a culture that does not tolerate discrimination are key to good industrial and workplace relations.
It is noted that there is no statutory retirement age in the private sector. Retirement ages in the private sector are generally set out by means of:
- an express term in the employee’s contract of employment;
- an implied term in the employee’s contract of employment;
- relevant policies, for example, a staff handbook; and
- custom and practice generally arising from the pension date set out in the relevant occupational pension scheme.
The Employment Equality Acts 1998 to 2015 prohibit discrimination on nine grounds, including age. Therefore, the termination of an employee because of age could be construed as discrimination under the legislation. The Equality (Miscellaneous Provisions Act) 2015, which came into effect on 1 January 2016 made several amendments to the 1998 Act. Section 34 (4) of the Act now states as follows:
“(4) Without prejudice to subsection (3) it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntary or compulsorily) of employees or any class or description of employees if—
(i) it is objectively and reasonably justified by a legitimate aim, and
(ii) the means of achieving that aim are appropriate and necessary.”
Essentially the law is now that compulsory retirement ages set by employers must be capable of objective justification both by the existence of a legitimate aim and evidence that the means of achieving that aim is appropriate and necessary. Examples of what constitutes a legitimate aim by an employer may include:
- Intergenerational fairness (allowing younger workers to progress);
- Motivation and dynamism through the increased prospect of promotion;
- Health and Safety (generally in more safety critical occupations);
- Creation of a balanced age structure in the workforce;
- Personal and professional dignity (avoiding capability issues with older employees); or
- Succession planning.
Good Practice and Procedure
It is good practice for an employer to notify an employee of the intention to retire him/her on the contractual retirement date within 6 — 12 months of that date. This allows for reasonable time for planning, arranging advice regarding people succession, etc. While the initial notification should be in writing, it should be followed up with a face-to-face meeting which should focus on addressing the following:
- Clear understanding of the retirement date and any possible issues arising;
- Exploration of measures (subject to agreement) which would support the pathway to retirement, for example flexible working, looking at alternative roles up to the date of retirement;
- Transitional arrangements in regard to the particular post; and
- Assistance around guidance and information.
A request from an employee to work longer than their contracted retirement age should be considered carefully. There are several matters to be considered by the employer and employee in this regard including:
- Is the employee confident that he/she can continue to perform the role to the required standard?
- Can flexible working options or alternative roles be considered?
- What is the duration of the extension being sought?
- Are there any pension implications?
- Are there any contract of employment implications?
When considering an employee request to extend their contracted retirement age, an employer should consider: are there good grounds on which to accept or refuse the request; what are the objective criteria applicable to the request; how would the arrangements for the employee remaining on in the work-force be contractually framed (e.g. fixed term contract); and could granting the request be based on a more flexible working arrangement (e.g. less than full hours or an alternative role)?