At the end of 2017, the Workplace Relations Commission published a Code of Practice on Longer Working (the “Code”). The Code contains guidance for employers and employees on managing the run up to retirement and dealing with requests to work beyond retirement. This has been an area of increasing focus for employers over recent years as the proportion of older workers continues to rise.

The Code breaks down the Commission’s best practice guidance under the following headings:

Utilising the skills and experience of older workers

The Code sets out the business case for managing a diverse workforce in a positive way to deliver value by harnessing and accommodating the experience and skills of older workers. The Code suggests various measures to help employers achieve this.

Objective justification

The Code contains helpful examples of what constitutes a legitimate aim for the purposes of objectively justifying retirement ages (for the purposes of s34(4) of the Employment Equality Acts 1998-2015). These include:

  • intergenerational fairness and motivation – to allow for the promotion of younger workers
  • health and safety considerations
  • creating a balanced age structure across the workforce
  • dignity considerations – to avoid capability issues
  • succession planning

Retirement

When an employee is approaching retirement, the Code states that the employer should notify the employee in writing of its intention to retire him or her on the contractual retirement date. This notification should be given six to twelve months in advance of the retirement date. The Code also encourages employers to consider providing support to employees, such as pre-retirement courses, flexible working arrangements and/or counselling to assist the transition to retirement.

Dealing with requests to work longer

The Code contains advice for employers when responding to requests from employees to work beyond the retirement age. Employers should consider these requests carefully against objective criteria. Any employee seeking to work beyond their retirement date should make the request in writing at least three months before the intended retirement date to enable an appropriate consultation process to be undertaken.

If an employer makes an offer of a fixed-term contract to start after the retirement age, the period of the contract and legal grounds for it (i.e. that it is fixed-term) should be clear. The Code also recommends that the offer of a fixed-term contract should state that the decision to offer it is made solely on the case made by the employee and is not applied universally.

If the request is refused, this decision should be communicated to the employee in a meeting. The employer must inform the employee of the grounds for refusal and offer a right of appeal.

Conclusion

The Code is not legally binding. However, it is likely to have evidential value in any cases dealing with compulsory retirement. Employers should take account of this best practice guidance to ensure conversations with employees nearing retirement are managed in accordance with the Code to reduce the risk of a successful age discrimination claim.