Jennifer Cashman, Practice Group Leader of RDJ's Employment Team answers a few questions relating to retirement issues, arising from her stellar performance at this year’s Annual Review of Employment Law.

1. Retirement - where an employer historically has not had a retirement age in contracts for office-based employment, what should be done with employees in their late 60's who are not showing any sign of retiring?  We’ve had no retirees up to now.  Do they have to be paid off?

If there is no mandatory retirement age in the employment, then there is no legal obligation on an employee to retire, unless the employer is concerned about their capacity to do the job, in which case there would have to be an occupational medical assessment carried out on the employer’s behalf to assess fitness. Short of that, all an employer can do is approach the employee and raise and discuss with the employee their retirement intentions. This is provided for in the WRC Code of Practice on Longer Working, which you can find here - http://www.irishstatutebook.ie/eli/2017/si/600/made/en/pdf

2. If a person doesn't want to retire, can an employer keep them beyond a stated retirement age in the employment contract if they are open to do that and, if so, for how long?

Requests to work longer by employees should be addressed in accordance with the WRC Code of Practice on Longer Working, referred to above. If the employer is minded to agree to longer working, then a fixed term/specific purpose contract should be offered to the employee, and the employer must have an objective justification for such a contract also. Please refer to the IHREC Guidelines in this regard available here - https://www.ihrec.ie/app/uploads/2018/04/Retirement-and-Fixed-Term-Contracts-Guidelines.pdf

3. Do you think Ireland will ever move to having a no default retirement age, like the UK? 

Ireland may move there but there are constitutional considerations here which may prevent us ever going that far. For now, it seems more likely that the Government will move to a position whereby mandatory retirement ages are still permissible, but only once they are not below the State Pension Age (which for now remains at 66).

4. Is the state pension age the same for men and women?

Yes.

5. If an employer has a mandatory retirement age that is generally adhered to but allows contract extensions beyond this age on a case-by-case basis, is there a danger that the general enforceability of the mandatory age can be challenged by any employees who are refused extensions?

Yes, any extensions will allow employees to argue that there is no objective basis for having the mandatory retirement in the first place.  However, to mitigate against this risk, employers must ensure that any extensions are done correctly (i.e. by giving a fixed term/specific purpose contract for the extension) and must set out their objective justification for placing an employee on a fixed term/specific purpose contract beyond the mandatory retirement age.  The WRC Code of Practice and the IHREC Guidelines above must be followed.

6. What implications are there for insurance where a person does not retire at stated normal retirement age? We have someone who was sick but could not receive any social welfare as they were over 66. 

Social welfare entitlements are specific to each employee so this needs to be looked at on a case-by-case basis. The State Pension is available to eligible employees at age 66. In terms of the employer’s insurance, this would also need to be looked at on a case-by-case basis.