In the recent decision of WRC the broadcaster Radio Teilifís Éireann (“RTÉ”) failed to convince the Adjudicator, Ms Catherine Byrne, that there was a connection between Ms Anne Roper’s compulsory retirement at age 65 and its objective to encourage intergenerational fairness. As a result, RTÉ was ordered to pay Ms Anne Roper a sum of €100,000 in compensation for age discrimination.
Background
Ms Roper commenced working for RTÉ in 1988 and was working as an executive producer when she was compelled to retire in July 2018 at the age of 65. Ms Roper had informed RTÉ’s HR department as early as September 2017 that she wished to remain in employment beyond her 65th birthday in July for a period of approximately 18 months. Ms Roper attempted to resolve the matter unsuccessfully through RTÉ’s grievance procedure and her employment was terminated with effect from her 65th birthday.
Ms Roper brought her claim to the WRC contesting that the decision to terminate her employment on reaching the mandatory retirement age (“MRA”) was unlawful as it discriminated against her on the ground of her age, as she was treated less favourably than other employees contrary to section 6(1) (a) of the Employment Equality Act 1998-2015.
Arguments
RTÉ’s argument for maintaining the mandatory retirement age of 65 was to ensure intergenerational fairness, a concept accepted and endorsed by the European Courts. In order for a MRA to be lawful in Ireland, it must be: 1. objectively and reasonably justified by a legitimate aim and 2. the means of achieving that aim are proportionate and necessary. RTÉ’s argument that retaining older people can prevent younger people from progressing, which can impact on “the ability of the broadcaster to produce programmes that are of interest and relevance to a younger audience.” The Adjudicator concluded that RTÉ’s view that older workers “are incapable of fresh thinking [….] is patronising and ageist”.
Ms Roper’s representative told the Adjudicator that RTÉ currently has over 15 current and former employees who continue to provide work for RTÉ, and who are over the age of 65. This list is made up of 13 men and 2 women, all of whom are 70 and over demonstrating the fallacy of RTÉ’s claim of intergenerational fairness.
Findings
The Adjudicator concluded that the arguments put forward by RTÉ did not stand up. She also concluded that the Complainant was not aware that the ‘normal retirement age’ of 65 at RTÉ would apply to her as a significant number do not avail of this option. The Adjudicator noted that the internal recruitment of the Complainant’s successor created a vacancy down the line for a new recruit, which may have been a positive outcome, however, the effect this actually had on the organisation “was so confined and limited to one department, that I cannot accept that it was objectively justified”. She concluded that the decision to compulsorily retire the Complainant adjusted the age profile in the Respondent to such a miniscule degree that it could not be said to have impacted in any meaningful way its ability to make programmes to appeal to young people and the impact that this decision had on the Complainant was negatively disproportionate.
Take away for Employers
– Mandatory retirement ages can be relied on only where they are objectively justified but on the basis of this case employers should be cautious when claiming intergenerational fairness to justify MDA’s as they will be narrowly interpreted and scrutinised
– Employers must consider proportionate means of achieving their stated aims including moving the employee to another role on a fixed term basis
– Employers should determine the true impact of each individual mandatory retirement and whether the intended result will be achieved by enforcing the MDA
– Due to the increasing State Pension age, employers should ensure that their MDA’s are in line with this age;
– It is clear from this decision that the employer should consider the effect the MRA will have on the employee against the impact on the organisation.
4th February 2020
Anne O’Connell Solicitors
Fitzwilliam Hall
Fitzwilliam Place
Dublin 2.
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