The Government yesterday unveiled plans to allow public sector employees work up to the age of 70.
Catherine O'Flynn, an employment partner with law firm William Fry, said the move was inevitable given that the state pension payment age will be pushed out to 68 in the next decade. "The state retirement age is 66, moving to 67 in 2021 and 68 in 2028. We've a situation at the moment where people are going onto Job Seekers Allowance until they can get the state pension at 66. Jobseekers is around €50 to €60 less than the state pension."
Ms O'Flynn said the situation was not as clear cut and was becoming increasingly tricky in the private sector.
"Although people think there is a retirement age at 65, our legislation was brought into line with the rest of Europe in January 2016. Am employer cannot have a mandatory retirement age unless it's objectively justified. "That includes something like succession planning or intergenerational fairness, health and safety issues or protecting the dignity of older workers," she said.
She said employers could find themselves in difficulty if they do not have a valid reason for forcing someone to retire at a particular age. "If you're trying to rely on succession planning but you don't find a replacement you may find you're in difficulty. If people don't accept there is a mandatory retirement age, they could bring a claim to the WRC or a claim to the High Court to injunct that."
Catherine O'Flynn explained that many contracts do have a specified retirement age. She said that applies "especially to older contracts which often say 65 is the retirement date because that was the state pension payment age at the time, but the employer still has to find an objective justification for that date." More recent contracts might have retirement dates that reflect the state pension age as it increases, she added.
Ms O'Flynn said people were having success in taking cases. "A fifth of claims brought in relation to discrimination have been on age grounds and they are successful if the employer can't point to a clear paper trail that there is an agreed mandatory retirement age in place. It's certainly something that employers need to put their mind to," she concluded.
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