I thank Senator White for bringing forward Employment Equality (Amendment)
(No.2) Bill 2012.
I want to emphasise my continued commitment, and that of the Government, to
promoting good employment and equality practices by all employers in
Ireland.
I appreciate Senator White’s initiative and intentions in bringing forward
this Bill. Her concern to facilitate the active participation of older
workers in the labour market in a manner that benefits society as a whole
is one that I share.
I have listened carefully to the points made. I think I can say that it is
clear to us all that this is a very complex area. It involves many aspects
of the employment relationship and of the relationships of workers and of
employers with the State. What is not clear to me, however, is how this is
solely an issue of age discrimination.
As Minister for Justice, Equality and Defence, my specific remit as regards
this issue is in promoting equality of opportunity and combating
discrimination against individuals in employment on the ground of their
age. Much of this debate, however, quite rightly revolves around
sustainable pensions policy, and policies in respect to access to work and
to retirement.
In addition to the anti-discrimination legislation that Senator White has
highlighted in her Bill, the matter of encouraging and facilitating longer
working lives also engages fundamental aspects of pensions policy and state
pension reform, public sector employment and pensions, workplace relations,
workforce activation and life-long learning, and national active ageing
policy.
This debate is not one limited to these shores. It is a live issue in every
State in the EU. You will be aware of the EU Commission’s White Paper on
Pensions, published last February under the title "An Agenda for Adequate,
Safe and Sustainable Pensions". A stated goal under this agenda is the
support of longer working lives. The Commission also proposes to consult
the social partners at EU level in regard to the general issue of mandatory
retirement ages in collective agreements.
Ensuring the effective right of citizens, free from discrimination, to
contribute to the economic, social and cultural life of the nation is high
on the Government’s agenda. We have set challenging targets in this area
but are preparing to meet them head on.
The Oireachtas has already ensured that there are substantial protections
in law for older workers that can be enforced. The Equality Act 2004
removed the original upper age limit of 65 years for bringing complaints of
age discrimination under the Employment Equality Act 1998.
In general, the Employment Rights legislation administered by the
Department of Jobs, Enterprise and Innovation does not contain an upper age
limit. In particular, there is no legislation in place imposing a
particular retirement age in the private sector. The upper age limit for
bringing claims under the Unfair Dismissals Acts 1977-2007 was removed by a
provision in the Equality Act 2004. The effect of that amendment was that a
person, aged over 66 when dismissed, may now take a case under the Unfair
Dismissals Acts unless he or she has already reached the "normal retiring
age for employees of the same employer in similar employment ", if one
exists. Of course, apart from being included in a contract of employment
between an employer and employee, the "normal" retirement age may be a
matter of custom and practice that has developed in a particular sector or
workplace. Additionally, the upper age limit of 66 years for receipt of
statutory redundancy payments was removed by the Protection of Employment
(Exceptional Collective Redundancies and Related Matters) Act 2007.
This Government is also ensuring that access to and enforcement of these
rights is made easier. As you will be aware, the Minister for Jobs,
Enterprise and Innovation, Mr Bruton is engaged in streamlining what is
currently a very complex infrastructure for asserting employment rights and
for seeking redress in cases of discrimination, to form a coherent and
customer-focused Workplace Relations Service.
A key component of the Programme for Government in regard to older people
is the reform of the pension system to progressively achieve universal
coverage, better risk sharing, and to provide for greater flexibility for
those who wish to retire on a phased basis.
Work in this area is being led by the Minister for Social Protection. Her
Department has convened an interdepartmental Working and Retirement Group
to examine the issues related to longer working and the cross-departmental
policies to support it. This Group will shortly be consulting with
stakeholders to enable the representatives of the various government
departments, social partners and other interest groups engage and consider
the issues involved.
It is my view and that of my colleagues in Government that this complex
area requires a coherent and coordinated approach and that legislating for
piecemeal change in one area, such as is proposed in this Bill, is
ill-advised. If only for that reason, I consider that this Bill is
premature.
Finally, I have a few brief comments concerning the specific provisions of
the Bill. Two amendments are proposed to the Employment Equality Acts, the
first relating to retirement provisions for over 65s, and the second
abolishing any upper age limits on recruitment.
On the first point, the existing protections under the Acts for employees
against arbitrary or discriminatory dismissal on reaching a set mandatory
retirement age are in fact stronger than Senator White’s Bill would
suggest. The Employment Equality Acts 1998 to 2011 give effect in national
law to the Framework Employment Directive, Directive 2000/78/EC, which
prohibits work-related discrimination on grounds including that of age. The
Court of Justice of the EU may provide guidance on the approach to be
adopted by national courts in considering national and EU legislation. It
has done so in its rulings in a series of age discrimination cases
concerning this Directive, and clarified that mandatory retirement ages
must be set down within the context of national law and be objectively and
reasonably justified by a legitimate social policy aim, with the means of
achieving that aim being both appropriate and necessary. The Court of
Justice has considered ensuring the dignity of older workers, and the
promotion of intergenerational fairness to be among the legitimate aims of
such measures.
In circumstances where an ambiguity arises, the Equality Tribunal, Labour
Court and the Courts are obliged, where possible, to construe national
legislation in the light of the obligation under applicable EU law.
It is clear from recent decisions of the Equality Tribunal and of the
courts that they have experienced no difficulty to date in applying the
guidance provided by the Court of Justice in its rulings to the Irish cases
before them concerning retirement age. For example, in a 2008 decision in
the Donnellan case, the High Court considered the justifications and
overall aim for the compulsory retirement age for Assistant Commissioners
within An Garda Síochána.
These decisions indicate that Irish employers, while they may set a
retirement age for their workers, must be prepared to justify their choice
to the objective standard set by the Court of Justice.
This is not an unusual situation in a common-law jurisdiction such as ours,
where the applicable law is sourced not only in the text of legislation but
also in the precedents created by previous court decisions.
Senator White also proposes to eliminate completely the right of employers,
whether in the private sector or in the public sector, to set an upper age
limit for the recruitment of workers. While I understand her concern that
older peoples should not face barriers to employment which are not shared
by younger jobseekers, I must highlight that this specific amendment has
other, quite serious and unwelcome, consequences.
The Court of Justice of the EU has considered the appropriateness of upper
age limits in recruitment in a number of cases and determined that, in
principle, such limits are capable of being justified. Upper age limits on
recruitment are operationally necessary in some instances. For example, in
essential and physically demanding emergency services such as fire fighting
and policing, professions which require significant investment in training,
such provisions allow for flexibility in recruitment so as to ensure a
reasonable period of effective service from workers before retirement, and
the long-term viability of the service. The Employment Equality Acts
already set very strict bounds on the situations to which such age limits
apply. In my view further detailed consideration of the matter is required
before a case is made for further safeguards for the employment of older
workers, such as removing the upper limit on recruitment.
As I explained above, the issues involved in encouraging longer working
lives raised by this Bill are among those to be considered by the
interdepartmental Working and Retirement Group convened by the Minister for
Social Protection and advocating at this point any particular remedial
measure, such as proposed in this Bill, is premature.
For these reasons, the Government cannot support this Bill.