Retirement continues to be a major employment issue as the age for retirement continues to increase and has attracted a lot of attention due to case law. Although retirement is not a mandatory requirement, employers are obligated to set the retirement age of their employees in their contracts provided that they ‘objectively justify’ the setting of the chosen mandatory retirement age.

The Employment Equality Acts 1998-2015 prohibit discrimination in employment on a number of grounds, including age. It is unlawful to discriminate against anyone in employment on grounds of age. The Acts only apply to persons above the maximum age at which a person is statutorily obliged to attend school (16 currently).  Under the Employment Equality Acts 1998–2015 an employer may:

• Set a minimum age requirement (not more than 18 years) for potential applicants for a job
• Offer a fixed-term contract to a person over the compulsory retirement age provided it is objectively justified.

The case law outlines that there are certain questions which an employer will have to answer in seeking to objectively justify the setting of a mandatory retirement age, such as the following:

• Is the aim legitimate in the particular circumstances of their business?
• Do the measures seek to achieve a legitimate aim?
• Are the means of achieving the aim proportionate? Or are there other less discriminatory measures possible?

It is important for employers to note that retirement is not merely a financial decision and that they should be aware of the emotional implications of retirement, as some employees might experience mixed emotions about leaving their career.  Employers should encourage open conversations with employees and foster a supportive work culture to assist in alleviating any stress or pressure the employee may be experiencing during this transition.

As requests from employees to remain in employment beyond the contractual retirement date have gradually increased over the past couple of years for many employers in Ireland, it is important for employers to manage retirement proactively and have a system in place on how to approach retirement with their employees.

In relation to the process of handling retirement, an employer should write to the employee approximately 12 months before their retirement age informing them of their upcoming retirement. Once the employee is within 6 months of the planned retirement you should meet to discuss arrangements for retirement including:

• The date of retirement
• Anything to help the transition for the employee
• Handover plans and any other details.

It is also important for employers to ensure that the meeting is followed up in writing for clarification purposes.

An employer should consider carefully any request by an employee to work beyond the contractual retirement age. These requests should be assessed on a case by case basis and an employer should keep in mind that any deviation from the contractual retirement age could have the effect of undermining the contractual position. In dealing with an employee request to work longer, it is recommended that the parties engage as follows:

1. The employee should make such a request in writing no less than three months from the intended retirement date, and the request should be followed up with a meeting between the employer and employee.  It is important that the employee is listened to and that any decision made is on fair and objective grounds.
2. The employer’s decision should be communicated to the employee as early as practical following the meeting.
3. Should the decision be to offer a fixed-term contract post-retirement age, the period should be specified, setting out the timeframe and the legal grounds underpinning the new contract should be made clear (i.e. fixed term contract). If an employer receives a request from an employee to work beyond their retirement age, the employer needs to consider the precedent they are setting.
4. Where the decision is to refuse the request, the grounds for the decision should be set out and communicated in a meeting with the employee. The applicant should have recourse to an appeals mechanism.
5. An employee may be accompanied to the meeting by a work colleague or union representative.

As well as this, if an employer is agreeable to allowing an employee to work beyond the contractual retirement age, an occupational health assessment should be carried out by the company doctor to determine whether or not the employee is fit to continue the work in question. It is important to note that this does not apply solely to safety critical work, and if the occupational health physician determines that the employee is fit to continue to carry out the work, an employer should have this position reviewed routinely, e.g., every 6 months, to ensure that the employee remains fit to carry out the work in question.

Another option that can be implemented upon agreement with the employee is ‘phased retirement’ whereby the employee’s working hours are reduced or they transfer to a part-time role, if they agree to do so. Phased retirement allows for an employee to gradually adjust to retirement.

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