A 70 year old man received €31,000 after his boss imposed retirement to ‘protect’ him from Covid. The firm introduced mandatory retirement age due to the pandemic.

James Spencer lodged complaints under the Unfair Dismissals Act and the Employment Equality Act against Heavey Technology-Quality Labels Ltd. The firm denied discriminating against Mr Spencer and told the Workplace Relations Commission it had a “clear retirement policy”.

The Solicitor who appeared for Mr Spencer at an adjudication hearing in March 2022, said her client “had an expectation that he could work like any other employee, subject to his physical and mental capacity to do so.” She said the firm issued a contract to Mr Spencer for the first time in 2015, around five years into his employment, which “detailed a retirement age linked to the age eligibility for the state pension”.

“However, he never signed that contract. A contract cannot be changed unilaterally” she said.  It was her client’s position that it was custom and practice in the business to work past the State pension age of 66, and that a colleague had worked into his 72^nd year.

Under employment equality legislation, one cannot be discriminated against on the grounds of age and the issue around Mandatory retirement has been in sharp focus over the last few years. Employers can set retirement ages in their employment contracts but should allow employees to at least apply to continue to work beyond that age and any refusal to do so should be objectively justified.

In Spring 2020 Mr Spencer heard the public health advice issued when the Covid-19 pandemic reached Ireland and asked to take leave from work, before then requesting to return to work after some months off.

In a letter to Mr Spencer on 19 June 2020, which was submitted in evidence, the firm wrote that it had had to “reconsider” the question of a compulsory retirement age “given the developments and health pandemic over the last number of months”. The company made it “official company policy that retirement be taken in line with the state pension age which is currently 66 years of age… it is a policy change which …needs to be implemented given the current environment,” before inviting Mr Spencer to a meeting.

At the hearing, a company director said the firm “facilitated a retirement process that was flexible” in “normal times”. “The company invoked the retirement age term stated in the employment contract due to the public health guidelines that indicated older people such as the complainant were more vulnerable to the virus,” it was submitted.

“The fact is, no public health guidelines exist that require an employer to retire employees over the age of 66 because they were more vulnerable than younger employees,” wrote adjudicating officer Brian Dalton in a decision published recently.

He wrote that the manager had made a “unilateral” decision to change the retirement policy without the benefit of medical advice.

“It may have been reasonable if the decision was based on independent medical advice, but it wasn’t. The fact is, many employees in this age category continued to work during the pandemic and took the necessary precautions to minimise harm to themselves. There is no evidence to suggest this employee was unfit to work,” he wrote.

Mr Dalton found there was no mandatory retirement age at the company before 19 June 2020, when the manager changed it. He found in favour of the Employee and awarded compensation.

 

NB – This is a guide for information purposes only and does not constitute legal advice. If you have an issue requiring legal advice, please contact any of the team at Nolan Farrell & Goff LLP, whose numbers can be found on our website www.nfg.ie, or email info@nfg.ie.