Under the Employment Equality Acts 1998 - 2015 (EEA) an employer is entitled to have a mandatory retirement age so long as there is a policy in existence which details the organisation's objective justification for having a mandatory retirement age and that the means of achieving that objective is for a legitimate reason.
Unfortunately a lot of employers, including the employer in this case, think that it is either sufficient to simply state in a contract what the retirement age is, with no policy to reinforce the justification; or to just presume that their staff will obviously want to retire when they reach a certain age that might only be confirmed in the employer's own mind.
Of course, this is not the case. Employers must give full consideration on why a retirement age is necessary, and thereafter undertake a regular review of their retirement age policy to ensure that their justification for a specific age is for an objective and legitimate reason. It could even be that there are different mandatory retirement ages within a workforce with different objective justifications. For example, if a department within a particular organisation is engaged in exceptionally physically demanding work there may be a case to have a lower retirement age for those employees due to medical and and safety reasons, than the remaining workforce.
Recognized examples of objective justification for a mandatory retirement age in the past has been succession planning and/or health and safety concerns, to name a few. It has long been accepted that setting a mandatory retirement age in line with the current State pension age (currently set at 66) is not in and of itself objective justification.
This case is an extreme example of how an employer came be complicit in their own mind of when someone should be required to retire, not taking into account the current legislation and indeed supporting case law. As such, all employers when looking at their practice on having a mandatory retirement age should consider some or all of the following points:
- Is there a mandatory retirement age already contained in any employment contracts / collective agreements or even implied by custom and practice?
- Have any employees been allowed to work beyond the mandatory retirement age? If so, this could nullify any pre-existing written reference to a fixed retirement age.
- If there is a mandatory retirement age (implied or expressed) - does it still make sense within the organisation. For example, perhaps it is only applicable to part of the workforce.
- If there is a mandatory retirement age - is there a mandatory retirement age policy in place and if so is it up to date.
- If the employer wishes to change the current mandatory retirement age, consideration will have to be given on how it is implemented particularly if it might impact some employees sooner than others. The employer may need to look into a consultation or staged implementation process of the new / revised mandatory retirement age, depending on the circumstances.
In the letter explaining the dismissal, the solicitor told the woman: "We all have to retire at some stage. For many decades, it has been standard practice for people to retire from employment at the age of 65. Many people retire before that age." The letter went on: "In your case, you did not indicate a desire to retire at age 65. I decided to keep you on until you could receive your pension."