The ongoing uncertainty around the legality of standard retirement ages appears to have been the root cause behind a recent verbal fracas in the Labour Court. Employment lawyers, HR professionals and trade union officials have been watching and waiting for the Labour Court to decide an appeal by RTE against a decision of the Workplace Relations Commission (WRC) in the ongoing case of Roper v RTE (ADJ-00019084). Whilst the hearing commenced, it appears to have been halted last week after the division of the Court that was hearing the matter felt compelled to recuse itself.
Everyone is familiar with the old saying that nothing is certain except death and taxes. There was a time, however, when most workers (and their employers) were also certain that they would retire on reaching the age of 65. That certainty has been slowly eroded over the last 25 years. Successive governments have amended employment legislation to open up the possibility of employees suing employers who compelled them to retire whilst at the same time proposing to increase the age at which the state pension becomes payable. The end result has been the creation of an unholy mess with older workers facing enormous financial uncertainty and sometimes distress and employers having to tiptoe around the issue of retirement or face expensive and embarrassing litigation.
It is against that background, if not because of those precise factors, that the Roper case arose. Ms Roper was a producer employed by RTE but she was compelled to retire by the broadcaster when she reached the age of 65. She challenged that decision before the WRC claiming that RTE forcing her to retire because of her age was discriminatory and was unlawful under the Employment Equality Acts. The WRC found in her favour on 18 December 2019, awarding her €100,000 in compensation. The Adjudication Officer noted that:
"... there was no legal or contractual impediment to the complainant remaining at work after the age of 65 and ... to do so is in line with government and social policy regarding longer working lives."
RTE promptly appealed the decision to the Labour Court. The hearing of the appeal commenced but collapsed after four days of hearing when a member of the Court was alleged to have remarked that questions being posed by RTE's senior counsel were "ageist" and "sexist". Such a remark was surprising in circumstances where the senior counsel in question is widely recognised as a leading expert on employment equality law and has played an important role in the battle against workplace discrimination in recent decades. It appears that, following discussions with legal representatives appearing in the case, the Chairperson of the Labour Court division in question announced that the division was recusing itself. The hearing will now recommence in front of a different division of the Court. The member of the Court who had made the comments apparently apologised to RTE's senior counsel.
The decision in the case itself is keenly awaited in circumstances where the law is far from clear and certain in relation to compulsory retirement and age discrimination; despite the publication of a "Code of Practice on Longer Working" by the State in 2017. The fact that the hearing will need to start over will likely lead to increased legal costs for the parties and use up more of the Court's time as well as delaying the publication of what will be an important decision.