Out-Law News | 10 Jan 2020 | 5:49 pm | 3 min. read
The WRC found that forcing Anne Roper to retire at the age of 65 in line with RTE's compulsory retirement age was discrimination on the grounds of age, contrary to the Employment Equality Acts. There was no legal or contractual impediment to Roper's continued employment with the broadcaster, which was also in line with government and social policy around allowing people to stay in work for longer, adjudication officer Catherine Byrne said in her decision.
Employment law expert Ciara Ruane of Pinsent Masons, the law firm behind Out-Law, said that the decision was an important one for employers.
"While an employer can have a compulsory retirement age, there are a number of boxes an employer must tick to make sure that it is legitimately enforced," she said. "This decision highlights that an employer must ensure that the retirement age is clearly specified in an employment contract, there is a valid objective justification for having a compulsory retirement age, and that the retirement age is consistently applied."
This decision highlights that an employer must ensure that the retirement age is clearly specified in an employment contract, there is a valid objective justification for having a compulsory retirement age, and that the retirement age is consistently applied.
"With the increase of the age at which a person can get the state pension – currently age 66, and to increase to age 67 from 2021 and age 68 from 2028 – combined with the fact that people want and need to work for longer, we suspect to see an increase in challenges to compulsory retirement ages," she said.
Roper had worked with RTE since 1986. In September 2017, she was invited to attend a retirement planning course in anticipation of her 65th birthday in July 2018. While she informed RTE's HR department of her intention to remain in work, it became clear by April 2018 that she would not be permitted to do so. An attempt to resolve the matter through RTE's internal grievance procedure failed.
During the grievance process, Roper told RTE that she enjoyed her job and felt that she could continue to be productive in her role. She told the WRC that she wanted to work for a further 18 months to give her time to work out her finances, as her pension provided her with an annual income of €12,000 compared to her salary of approximately €100,000. She said that there was no reference to a retirement age in her contract, and that the age specified in documents including a staff manual and documents relating to a company pension plan could not therefore be legally binding on her.
Before the WRC, RTE argued that there was a compulsory retirement age of 65 and it was justified in order to ensure intergenerational fairness and allow younger people to progress through the organisation. This, in turn, impacts RTE's ability to produce programmes that are of interest and relevance to a younger audience. It said that Roper's retirement would not prevent her from working with it in an independent capacity or with an independent production company. While it had previously allowed certain employees to remain working on short contracts after the age of 65, RTE said that none of the "exceptional circumstances" in which it would offer such work applied in Roper's case.
Adjudication officer Catherine Byrne first considered the contractual position of the retirement age. She found that there were no provisions in Roper's contract regarding retirement age and that the staff manual and other documents that provided for a retirement age of 65 also indicated the possibility of working beyond the age of 65. Byrne accepted that most retired at 65 but also considered it relevant that a "significant number" of RTE employees continued working past the age of 65 for a variety of reasons, generally related to the need for a particular individual's skills.
She then went on to consider whether RTE could objectively justify a compulsory retirement age of 65. She found that it could not. The fact that one person was able to be promoted into Roper's former role "fell considerably short" of being a method of achieving the intergenerational fairness and attracting younger audiences claimed by RTE, particularly as most employees chose to retire at age 65 in any event, she said.
"Every workforce has its own demographic profile, and the decision to compulsorily retire [Roper] has adjusted the age profile in the respondent to such a miniscule degree that it cannot be said to have made any difference in its ability to make programmes that appeal to young people," she said.
"I do not accept that there was objective justification for [Roper's] retirement and I also find that the means to achieve the sought-after outcome was not appropriate or necessary. I have reached this conclusion due to the disproportionately negative effect on [Roper] of her retirement compared to the dubious positive impact on her employer," she said.
RTE has indicated that it will appeal the ruling, according to the Irish Times.
31 May 2017
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