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RTE & SOLAS Breach Equality Legislaiton On Grounds of Age.

As the award of €50,000 for age discrimination last week by the WRC to former RTE Reporter, Valerie Cox, made the news headlines, employers are once again reminded that whilst there is no current direct statutory bar on having a workplace retirement age, it remains very easy to fall foul of current employment equality legislation in respect of dealing with employees who have reached "retirement age" or who are coming close to it.

Ms Cox's full-time contract of direct employment ended in March 2016 due to retirement when she turned 65, with a second separate freelance contract for "What It Says In the Papers" continuing, which had commenced in 2003, and which had no specific retirement date within it. Ms Cox said she was led to believe that a period of time needed to elapse after her retirement, before she would be rostered again on her separate freelance contract. This however did not happen and after attempting to get back on the roster for nine months, she finally spoke to someone who informed her that she would not be allowed return to work with RTÉ on grounds of age.

RTÉ argued that the retirement age for Ms Cox was set out in a staff handbook.The WRC’s adjudication officer did not accept that there was a standard retirement age set out in the Staff andbook and said that it seemed clear the staff handbook did provide for working after the age of 65. It was therefore ruled that Ms Cox had been discriminated against on the basis of her age in relation to the termination of her casual contract of employment.

In a separate case published in January 2018, Solas, the former State Training Body has been ordered to pay €20,000 compensation, after the agency was found to have discriminated against a 60 year employee who was asked in a promotion interview, if he should be “taking it easier at this stage?”. The employee said that whilst he answered the question at the time, he interpreted it as a reference to his age and felt that that the interview panel thought that he should be not be going for promotion five years before his retirement age.The job eventually went to someone who was aged 38 at the time and who was the youngest candidate.

The WRC did not accept the submission by Solas who said the question asked was “What motivates you to take on this role at this stage in your career?”. The WRC preferred the employee's version, whom they found to be a “compelling witness” and fully accepted his evidence that the question was asked in the way he suggested, and that it would have deflated him for the rest of the interview.

It was therefore found that the question around "taking it easier" in the context of an interview for a promotion was a discriminatory question on the grounds of age, and that the employee had been discriminated against regarding access to promotion. He was awarded €20,000 compensation.

The Adjudication Officer also noted that that Solas have conducted research that shows being older is one of the barriers towards participating in further education and suggested that they should have been even more conscious of avoiding age-discriminatory practices with their own employees.

Employers may find the recently published Code of Practice, INDUSTRIAL RELATIONS ACT 1990 (CODE OF PRACTICE ON LONGER WORKING) (DECLARATION) ORDER 2017, helpful for reviewing best practice in how to deal with retirement in the workplace. The Code now sets the standard for dealing with mandatory retirement in the workplace and requests to work beyond the mandatory retirement age, and should now be used by employers when addressing the issue of mandatory retirement going forward. Employers must also ensure that all interview questions asked are directly related to job requirements and do not put individual candidates in a potentially discriminatory situation on one of the nine grounds set out in the Equality Acts.

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