In early January 2020, the Workplace Relations Commission (the "WRC") ordered the Irish State broadcaster, RTÉ, to pay €100,000 to a former employee following a finding that the employer had discriminated against the former employee on the grounds of age by refusing to permit her to work beyond the company's mandatory retirement age of 65 (the "MRA").
The WRC rejected the objective justification of "intergenerational fairness" offered by the employer for the MRA. The WRC ruled that the MRA was not a necessary and proportionate means of facilitating younger members of staff progressing to senior roles or attracting a younger audience. The WRC criticised the failure to consult with the employee and to identify a business case for extending the employment temporarily for up to 18 months on a fixed term basis.
The decision is interesting for employers in Ireland because it shines a spotlight on the viability of intergenerational fairness as a justification for using an MRA. This is a justification that is well established in European and domestic case-law and commonly deployed by employers when defending MRAs.
- Employers need to be aware of the vulnerability of MRAs even where a contractual right to impose the MRA can be established;
- MRAs may be relied on where they are objectively justified but this case demonstrates that the concept of intergenerational fairness will be rigorously scrutinised and narrowly interpreted;
- Employers need to determine the true impact of each individual mandatory retirement and assess whether enforcing the MRA in each case will produce the intended result in the organisation as a whole;
- Employers must consider proportionate means of achieving their stated aims including moving the employee to another role on a fixed term basis; and
- The employer should consider the effect on the employee of the MRA against the impact on the organisation, including taking into account the financial situation of the affected employee on retirement.
The Complainant, Ms. Roper, commenced working for RTÉ in 1988 and was working as an executive producer by the time she was obliged to retire on 9 July 2018 at the age of 65. Ms. Roper was invited to attend a retirement planning course in September 2017 in anticipation of her upcoming 65th birthday the following July. However, Ms. Roper immediately informed the RTÉ's HR department that she wished to remain at work after the age of 65 for a period of approximately 18 months. Ms. Roper attempted unsuccessfully to resolve the matter through RTÉ's grievance procedure. Her employment was terminated with effect from her 65th birthday.
Ms. Roper contended that the decision to terminate her employment on reaching the MRA was unlawful because it discriminated against her on the grounds of her age in that she was treated less favourably than other employees contrary to section 6(1) (a) of the Employment Equality Act 1998 -2015 (the "Act").
- It is objectively and reasonably justified by a legitimate aim; and
- The means of achieving that aim are proportionate and necessary.
- Ms. Roper was a member of the occupational pension scheme which clearly referenced the MRA of 65 in the explanatory booklet and other documents and correspondence which Ms. Roper received and read;
- The Employee Handbook referenced the MRA; and
- The majority of employees retired at the age of 65 and while there was an established practice of certain employees remaining on after reaching the MRA for specific and individual business reasons, this did not undermine the practice of using an MRA in RTÉ.
- MRAs are not unlawful under Irish law;
- But, employers must be able to objectively justify their decision to impose an MRA. There must be compelling evidence that the use of the MRA is the appropriate, proportionate and a necessary means of achieving a legitimate aim;
- Intergenerational fairness has been held to constitute an appropriate and necessary objective justification for imposing a mandatory retirement age on many occasions but the WRC will apply a narrow interpretation of the concept and will rigorously scrutinise the effect on the organisation as a whole;
- The impact on the employee both financially and otherwise and the impact on the organisation must be balanced and weighed up when determining the proportionality of using an MRA;
- Employers must consult with the employee and must give serious consideration to acceding to requests for longer working including by means of a temporary or fixed term arrangement;
- Finally, employers are advised to consult the Code of Practice on Longer Working which is a helpful guide to planning for retirement; and
- Although not a bar to the complainant succeeding in this case, an employer who intends to attempt to rely on an MRA should include an express MRA in the contract of employment.