The guidelines are a useful summary of the statutory provisions and case law which has shaped the management of retirement in Ireland in recent years. It reiterates that it does not constitute discrimination on the age ground to fix different ages for retirement (whether voluntarily or compulsorily) of employees, if it is objectively and reasonably justified by a legitimate aim and the means of achieving that aim are proportionate and necessary.
What follows is a summary of the various means by which a legally enforceable retirement age may be set. The guidelines do not prescribe any particular approach to the question of managing retirement age, which remains a matter to be decided by employers as assisted by their advisors. Reference is made in the guidelines to the issue of post-retirement fixed-term contracts, and the requirement that they, too, be objectively justified in accordance with the provisions introduced by the Equality (Miscellaneous Provisions) Act 2015.
Through engagement with its members, Ibec is aware of the challenges posed by the issue of retirement in recent years, particularly with the postponement of access to the State pension to age 66. This challenge will be greater still when access to the State pension reaches 67 years in 2021 and 68 in 2028. We know that employers want certainty in the running of their businesses, and the ability to engage in proper succession planning. However, most employers would also like to facilitate employees who would like to work longer, without undermining this certainty.
Ibec believes that the current Irish legislative framework could be adapted to provide employers with greater latitude to facilitate requests from employees to work longer while still maintaining the certainty of a mandatory retirement age. For example, Ibec believes that the additional requirement, introduced by the Equality (Miscellaneous Provisions) Act 2015, to objectively justify a post-retirement fixed-term contract was not mandated by EU law. This additional requirement has added a layer of complexity to this exemption which employers would likely otherwise rely on in greater numbers when facilitating requests to work longer. It would also be useful to have a single source of guidance for employers and employees when addressing the issue of retirement, rather than a separate Code of Practice and guidelines, in addition to the wealth of case law and legislation to be considered. Ibec will continue to engage with relevant Government departments in an attempt to create a legislative framework which is fit for purpose on an issue notorious for its complexity.
Ibec Employment Law Services
Friday, 4 May 2018