As an employer, you are likely to be familiar with clauses setting out the "normal retiring age" for employees and many of the contracts of employment of your own employees no doubt contain such clauses. In Ireland there is no general statutory compulsory retirement age although there are some statutory based retirement ages in the public sector. Instead, employers in Ireland frequently set their own mandatory retirement ages and most choose to do so by including an express term in their contracts of employment in order to avoid the difficulties associated with having to prove that a retirement age was an implied term of an employee's contract of employment.

The current legal position

Irish and EU law prohibit workplace discrimination on grounds of age. While the EU prohibition is "without prejudice to national provisions laying down retirement ages", there is no specific exception for retirement ages at EU level. However, decisions at a European level have permitted certain differences in treatment which are "objectively justified", as allowing Member States to use mandatory retirement ages where "appropriate and necessary in order to achieve a legitimate aim in the context of national employment policy." [1] Similarly, the Court of Justice of the EU has approved mandatory retirement ages in respect of specific employments and only last month, for example, endorsed an age limit of 65 for commercial pilots.

In Ireland, the Employment Equality Acts 1998 – 2015 prohibit discrimination on grounds of age, but specifically permit the use of mandatory retirement ages provided that they are "objectively and reasonably justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary." [2]

Citizens assembly vote

On 9 July 2017, 86% of the members of Ireland's Citizens' Assembly voted in favour of abolishing mandatory retirement ages in Ireland in the context of discussions on the challenges and opportunities presented by Ireland's ageing population. The Citizens' Assembly is made up of 99 citizens who have been randomly selected in an effort to be broadly representative of the Irish electorate plus a Chairperson, Ms Justice Mary Laffoy. The body was set up to consider important issues referred to it by the Houses of the Oireachtas and its recommendations are submitted to the Oireachtas for debate.

What does this mean for employers?

A report is now due to be compiled by Ms. Justice Mary Laffoy outlining the Assembly's recommendations which will then be submitted to the Oireachtas. It is expected that the report will be submitted this month, September.

Should the position in Ireland be changed in line with the Assembly's recommendations, mandatory retirement would no longer constitute an exception to the prohibition on age discrimination. Consequently, attempts to force an employee to retire on age grounds alone would no longer be permissible, regardless of any express or implied term in an employee's contract of employment. Exceptions may be carved out for jobs requiring certain physical abilities or where there is a statutory age limit for a particular job. It is possible that any general abolition of age limits would require some employers to specifically assess the physical or mental capacity of their workforce and this would have to be managed very carefully.

For the moment, we will have to adopt a "wait and see" approach and employers can continue to use their existing contracts of employment. However, amendments are likely to be required if changes are introduced on foot of the Assembly's recommendations. Should that arise, our Employment Team will be available to discuss any concerns that you may have and to advise on the impact that any legislative changes may have on your contracts of employment and on your approach to retirement in general.