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Guidance for Employers on Mandatory Retirement

by Barry Walsh, Partner and Head of the Employment Team at McDowell Purcell.

For the second time in less than six months, an important document has been issued by a state body to assist employers and HR professionals on employment law and HR aspects of mandatory retirement of employees.

The guidelines issued by the Irish Human Rights and Equality Commission (IHREC) in April 2018 follows the publication of the WRC Code of Practice on Longer Working as a statutory instrument in late December 2017.

While some might wonder at different publications by two separate state bodies in a relatively short space of time, the IHREC document entitled “Retirement and Fixed-Term Contracts Guidelines” is nevertheless very useful for employers and HR professionals. The IHREC Guidelines are more detailed and have a wider scope for discussion than the WRC Code of Practice, which is necessarily somewhat more legalistic. As such, the IHREC Guidelines provide a broader backdrop to the socio-economic and legal background to this issue as well as some practical advice for employers in how to deal with this increasingly topical and difficult area.

The IHREC Guidelines are also a very useful statement of the law and, as such, will provide reassurance and clarity for many employers and HR professionals attempting stay on top of this difficult area.

One of the many interesting areas dealt with is a list of case specific examples that were successfully used by employers in previous cases in setting compulsory retirement ages. These include the following concepts: sharing employment between the generations; establishing a balanced age structure; workforce planning; avoiding disputes concerning employees’ fitness to work and the protection of health and safety. It is acknowledged however that the concept of “objective justification” is a complex and fact specific one which can be difficult for both employers and employees to apply in practice

There is also guidance on how to issue fixed term contracts to employees who have reached contractual retirement but who are working beyond that for a set period.

While very helpful, as with any such guidelines, they are general in nature. Over generic positions should be avoided by employers, who should always analyse their own workforce dynamics and needs. Specific advice should always be sought if employers have any doubt as to the legal position they find themselves in.

Overall though, together with the earlier WRC Code of Practice and the ever developing body of case law, these guidelines are another useful source of core material and will undoubtedly be referenced by many employers.

A link to the Guidelines can be found here.

About the author
Barry Walsh is Partner and Head of the Employment Team at McDowell Purcell. Barry advises a wide range of Irish and multinational corporate, public and institutional clients on all aspects of Irish employment law from recruitment to retirement including contentious, advisory and transactional work. Barry is experienced in acting for clients with respect to contractual and termination issues with senior executives. In addition to advising on employment law, he has also advises on industrial relations issues arising from mergers and acquisitions, outsourcing and redundancy situations. He has significant litigation experience and has directly represented clients before the European Court of Justice, the Irish civil courts and all specialist Irish employment tribunals.

Categories: Legal

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