The New Code of Practice on Retirement Age

The Workplace Relations Commission (“WRC”) has published a code of practice for the purposes of advising employers and employees on practices and procedures when approaching retirement. This code is outlined in the Schedule to the “Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017 (“the Code”). The Code provides guidance to employers in situations where employees are nearing retirement age and also where individual employees request to work beyond retirement age. It essentially sets out what the best practice is in relation to managing aging workforces and the retirement process. Age is one of the nine grounds of discrimination which is prohibited. The law now states that compulsory retirement ages set by employers must be capable of objective justification both by the existence of a legitimate aim and evidence that the means of achieving that aim is appropriate and necessary. The Code provides examples of what may be considered as a “legitimate aim”:

• Intergenerational fairness, i.e. allowing younger workers to progress;
• Motivation and dynamism through the increased prospect of promotion;
• Health and safety (generally in more safety critical occupations);
• Creation of a balanced age structure in the workforce;
• Personal and professional dignity in order to avoid capability issues with older employees; or
• Succession planning.

In relation to best practice, the Code provides that employers should ideally notify the employee of the intention to retire him/her on the contractual retirement date 6-12 months prior to that date. This should then be followed up with a face-to-face meeting. This meeting should focus on addressing a clear understanding of the retirement date and possible issues. Additionally, it should explore measures that would support the pathway to retirement, for instance, by considering whether flexible working would be appropriate or whether there should be changes to the employee’s position when approaching retirement. It may also be important to outline handovers of work prior to departure and any other transitional provisions. Employers should be clear as to the guidance and information employees can find on their situation. In the current work environment, it is likely that businesses will see an increase in employees requesting to work longer than their contracted retirement age. Where this is the case, the employee will have to consider whether they are confident that they can continue to perform the role to the required standard. Employees may also think about whether flexible working options or alternative roles should be considered, the duration of the extension being sought and whether there are any pension or contractual  implications. From the employer’s perspective, the employer will need to carefully consider the grounds for accepting or refusing requests for longer working, the objective criteria applicable to the request, the arrangements for the particular employee remaining in work in terms of the contractual framework, e.g. whether a fixed-term contract may be appropriate and whether granting the request could be on the basis of a more flexible working arrangement. The Code also outlines a process for longer working requests:

• The employee should make a written request no less than three months from the intended retirement date which should then be followed up by a meeting between employer and employee.
• The employer should communicate the decision to the employee as soon as possible.
• If a fixed-term contract is offered, the period should be specified and the legal grounds should be made clear. The Code notes that it is good practice to include a reference to the fact that the decision is made solely with regard to the employee concerned and is not universal.
• If the request is refused, the grounds for the decision should be outlined and explained in a meeting with the employee. The employee should be able to appeal the decision, for example, through the normal grievance procedures in the organisation.
• An employee may be accompanied to a meeting by a work colleague or union representative to discuss a request to facilitate longer working hours or in an appeal relating to that matter.

Employers and HR practitioners should familiarise themselves with the provisions of the Code and must operate within the guidelines as set out therein. Businesses should also consider whether any amendments need to be made to their existing policies/procedures in order to adhere to the terms of the Code.