Can Employers Set Compulsory Retirement Ages
There is no statutory retirement age in Ireland. Up until recently the default position for many employers was to retire employees once they turned 65, however this may no longer be possible.
Legislation came into force in Ireland in 2016 which stated that compulsory retirement ages may only be set where they can be objectively justified. This means that employers can compulsorily retire an employee if they are able to justify their course of action.
Failure to have appropriate justification in place could leave employers open to an age discrimination claim.
Setting Objective Justification
What is an objective justification will very much depend on the role and the Company, however as guidance, some of the reasons which have been accepted by the courts in the past include;
- Health & Safety: It may be justifiable to have mandatory retirement ages for employees who work in jobs which are physically demanding.
- Succession Planning and establishing an age balance in the workforce: Employers need to plan for the future in order to ensure that they have the right people in place to support the business into the future. Mandatory retirement ages can promote this.
- Encourage the recruitment and promotion of younger people: It has been successfully argued that mandatory retirement ages encourage employees to stay with, and progress within an organization and to motivate employees by the prospect of being promoted into more senior roles.
Employers may also wish to consider the State Pension age when looking at retirement ages. In January 2014 the State Pension age was increased from 65 to 66. This will be further increased to 67 by 2021 and 68 by 2028. If an employee is retired and is not immediately eligible for the State Pension this could lead to the company’s retirement age being challenged.
Fixed Term Contracts
Fixed term contracts are frequently used where an employee reaches retirement age but wishes to continue working. Under the new legislation, if offering a fixed term contract after retirement employers will also have to show objective justification for the termination of employment at the point of expiry of the fixed term contract.
What do employers need to do?
- Employers are well advised to review their contracts of employment.
- If a retirement age is included employers should ensure that there is objective justification for including that retirement age. Best practice suggests having more than one objective justification for a retirement age, which will help build a strong defence in any age discrimination claims.
- Employers should reserve the right to review and amend the retirement age based on business needs.
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How would you deal with transfer requests from employees?
The Workplace Relations Commission (WRC) has ordered an employer to pay an employee €2,500 for what it called “an undue delay” in dealing with her request for a transfer.
The employee, a paramedic, applied for a transfer 3 months before returning from maternity leave. However, the woman informed the WRC hearing she was upset and shocked by her employer’s handling of her situation. The employee felt her employer denied her fair process by taking almost 7 months to deal with her grievance.
The WRC stated that the delay was unreasonable and unfair and caused the employee undue stress. However, the adjudication officer also stated that he could not recommend granting the paramedic a transfer to her own are as no vacancy currently exists. He recommended the woman accept her place on the transfer panel on the same basis as any other employee.
The officer stated: “In the circumstances where there is no available position, vacancy or work available in the area to which the complainant seeks to transfer, it is not feasible or possible for me to recommend that she be so transferred and I must reject that element of the claim.”
The lesson for employers here is to deal with all employee requests and issues in a timely manner. Even if you are unable to accommodate an employee's request, communicate with the employee and keep them informed at all stages of the process.
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Parental Leave & Force Majeure
Following on from our previous posts on Protected Leave, we will now look at Parental Leave and Force Majeure.
Parental Leave has been available in Ireland since 1998 having been implemented to allow working parents take time off to look after their children.
Parental leave is available to all workers with 1 years’ service, exceptions can be made where the child is near the age threshold. Under the legislation each parent is entitled to 18 weeks’ parental leave on the birth of a child / placement of a child for adoption. The leave may be taken up until the child’s 8th birthday, or 16th if the child has a long term illness.
Parental leave is unpaid leave, employers are not required to pay employees on paternity leave, nor is there a social welfare payment, equivalent to maternity pay, for paternity leave. However, as with all protected leave, the employee still retains their rights to accrual of normal entitlements, i.e. holidays, public holidays, etc.
With regard to taking parental leave, the rules are quite flexible. Legislation states that the leave may be taken in one continuous period or in two separate blocks of a minimum of 6 weeks. It is also stated where an employee has more than one child they may take a maximum of 18 weeks in any 12 month period. However, employers are free to agree alternative arrangements in relation to all of the above depending on their own business needs.
Should an employer receive a request for parental leave they may postpone the request for up to 6 months, based on business needs, e.g. work cover or seasonal work loads. Normally only one postponement is permitted.
Parental leave is not transferable between parents. However, if both parents are employed by the same employer, the employer may agree for up to 14 weeks of the leave to be transferred between parents.
Force Majeure is paid leave that can only be used for urgent family reasons whereby the presence of the employee is immediately required. It may be taken in respect of immediate family members only, i.e. child, parent, sibling, grandparent.
“Force Majeure” (greater force) is paid leave of up to 3 days in any 12 month period or up to 5 days in 36 months which can be taken for family emergencies.
It is not an annual entitlement so therefore should not be treated as part of an employee’s annual leave calculation.
Bright Contracts has a Parental Leave and Force Majeure policy built into the software, however, this can be reviewed and adjusted accordingly to suit your own companies’ requirements if necessary.
Bright Contracts - Employment Contracts and Handbooks
Paternity Leave - What you need to know
As has been much publicised in the news of late, paternity leave is just around the corner.
We’ve summed up the key facts to help employers get their head around the new legislation:
- From 1 September two weeks paid paternity leave will be available in Ireland.
- The leave will be available to new fathers, partners in same sex marriages, as well as self-employed workers.
- Parents may request to take the leave at any time within 26 weeks of the child’s birth / placement for adoption.
Payment
- Paternity leave will be paid at the same rate as statutory maternity pay, currently set at €230 per week. In order to be eligible to receive this payment certain PRSI criteria must be met.
- As with maternity pay, there is no obligation on employers to make any top up payments for paternity leave. However, employers who already top-up maternity pay, will, from an equality perspective, need to consider offering a similar scheme for those on paternity leave.
Employees Requesting Paternity Leave
- Employees wishing to take paternity leave must give 4 weeks written notice.
- Employers should also request written medical confirmation on the baby’s due date, or date of birth if the application is received once the baby has been born.
- The employee should present you with a PB2 form to sign, similar to a MB10 form for maternity.
What employers need to do
- Introduce or review any existing paternity leave policy. A good policy will include details on how an employee should request paternity leave and details of payments during paternity leave. A clear policy will ensure both management and employees know the entitlements and how paternity leave should be managed.
- Employers should take this opportunity to review all family friendly policies, including maternity, adoption, and parental leave policies, to ensure they are up-to-date and consistent.
Bright Contracts will be releasing a new Paternity Leave policy at the end of the month to coincide with the legislation coming into force.
We will also be holding a FREE webinar on Paternity Leave and Family Friendly Policies on 27 September. For further information click here.
Bright Contracts - Employment Contracts and Handbooks
