Rolanda: Our next question, then, another aspect of discrimination,

"It was reported this week, recently, that an Oxford University professor was forced to retire over his 70th birthday, based on a policy within the organisation. The tribunal found that he had been unfairly dismissed and discriminated against. Does this mean, I suppose, that you can't retire employees, that it's never going to be fair to retire employees?"

Seamus: Well, the short answer to that is, "No." I mean, there is certainly circumstances where it would be fair and justifiable to look at retirement. This was a specific case in relation to a professor in Oxford. Professor Ewart was his name. He was 70, and the policy was really to look at bringing in new blood into their department, and this idea of making space for that to happen.

Scott: So that's intergenerational fairness. And that has been ruled to be a fair reason to retire employees, to allow younger people to come through, and intergenerational fairness. Otherwise, older people hold all the jobs, younger people can't get on, and it causes problems in society. So it's an acceptable reason in general, but it wasn't, specifically, in this case.

Seamus: No, it comes down to the aspect that it always has to be justifiable, and you have to be looking at meeting a legitimate aim in relation to get into that process.

Scott: So they have a legitimate aim, but the problem here was it wasn't a proportionate response to achieve that legitimate aim. That was the issue.

Seamus: That's exactly the position. In Northern Ireland, we have our employment equality age regulations. In 2006, that would be the vehicle you would use, the legal vehicle, in these sorts of cases. But, going back to it, there are employers that do have policies and procedures that will put in a retirement age.

Scott: And we have 10% of the poll here who still use it.

Seamus: Yeah. There are certain jobs that people do that you could absolutely justify a retirement age, maybe even before the age of 65, you know, if you're doing a very sort of heavy-duty work, if you're involved in the fire service, or if you're a fireman or a firewoman. That's physically demanding, and you have to have certain physical fitness and physicality about you as well, not just necessarily your age, but there's other aspects of that as well. So you can see that there are completely justifiable times, whenever you can…………….

Scott: Well, even those ones there, it might be that particular role that you're not allowed to do after a certain age, or you have to pass a test every year, whatever you want to do. Now, the airline pilots as well, they're done at 66. That doesn't mean to say that you have to be kicked out of an organisation, necessarily, because you can't do that role.

Seamus: No. It would be remiss of an employer to do that on the basis that you've got a very experienced employee whose skills can be used elsewhere within the business. So, you know, you do have to look at those aspects of redeployment. The guidance for these things tends to be that there's a sort of annual review that takes place with the employee at a certain point, whenever they reach an age, and you do an assessment with the employee then, in terms of if it's physicality or their ability to do the job.

Sometimes, there's other issues arise in terms of motivation, and sometimes people just become bad at doing their job, where they don't keep up with developments in their role. In offices, we've gotten sort of very advanced on the technology, and sometimes that can catch, to be fair, some of our older employees out in relation to that. And there is a responsibility in the employer to provide training.

And rather than common rules and if we go back to the idea of moving longer, working employees there, and trying to bring in the fresher blood in relation to it, the justification on that, it can't just be because somebody's mighty bad at their job, and you want to get rid of them, and you're going to use this policy to do so. All of the same processes still apply in terms of identifying where the shortcomings are, notifying the employee what those shortcomings are, giving them training, giving them opportunity to improve. That's the process for dealing with that.

But when we come down to the retirement, it really, for me, it's a two-way street in terms of communication. And it's for the employer to meet with the employee to have discussions around how they feel in their job. And there's no problem with asking the employee, either, "What are your plans? What's your thoughts in terms of continuing?"

Sometimes employers shy away from that, and they're almost afraid to ask questions like that. But the business always has to forward plan. So it's about, really, communicating. The other sorts of things are that . . . You know, I was laughing when I read this, but someone had recorded some commentary about the ability to be in service until you die. And that's not anybody's goal, I don't think. It would be very few that would want to work right up until the point of where . . .

Scott: Die on the job?

Seamus: . . . you know, when they die at the desk type thing. But, you know, those conversations are important. And, equally, sometimes, the employee could shy away from those conversations on the basis that they maybe feel, "Who's going to step in to do my job? There's nobody here to do it. I feel I'm obligated." So it's having those discussions.

But, certainly, there are exceptions there where you can look at enforcing retirement. You always have to have a solid, good reason of justification for it, and it always has to have a legitimate aim. You can look at the workforce planning, but also protecting the dignity of your workers also. You know, so those are the sort of thoughts I have around that.

Scott: There's a number of European court decisions on those types of things, the reasons you can do it. If you're one of those 10% that answered our poll and are pushing through, you still have to justify it. It's still got to be proportionate. The other ones that don't have a set retirement age, if you want to move the person on, you either go through your capability procedures and so on at some stage or you have those discussions.

There's nothing wrong with having a discussion with every single employee and saying, "Where do you see yourself in a year's time, two years' time, three years' time?" You can do that with everybody, not just the older workers being picked on, and you end up with an age discrimination claim because you're only looking at those. But the workforce planning issue's just a sensible thing to do. Nobody's going to hold that against you.

Seamus:  It's a necessity. I suppose one of the big issues a lot of the time for these forced retirements, if you want to put it that way, is your sort of genuine health and safety concerns, as well as maybe the capability issues that might arise. But they don't necessarily always arise.

It could be a genuine health and safety aspect of it, and a lot of the times you might need to look at maybe bringing somebody in to look at health and safety in the workplace, you know, those occupational therapists, or getting medical evidence to say, "Well, this person isn't fit any longer to do the role." Those are the sort of pressures that are on the employer, I find, to get to the justification.

But, ultimately, you know, you're right. The retirement age has to be objectively justified, and the retirement age must have a legitimate aim. Enforcement of the retirement age, there must be a proportionate way of meeting that aim. So that's the general sort of legal ramifications of it.

Rolanda: I suppose, just one point, as you were saying earlier, that you don't try to dress up a capability dismissal as a retirement dismissal.

Seamus: Yeah, exactly.

Rolanda: Because that only creates confusion.

Seamus: No. And if you end up in a tribunal, most of the time, the truth comes out. If the truth doesn’t come out then the tribunal may bring it out instead. But, you know, one of the worst things you can have, I think, sometimes whenever you're going to defend claims in the tribunal, is somebody that just hasn't been straightforward and honest with the employee about the reason for terminating an employment contract.

Often, you find that if they just had have been straightforward, they wouldn't really have been doing anything wrong, provided they follow the fair process and all the rest.

Scott: Okay. You're listening to Scott Alexander and Rolanda Markey from Legal-Island, and we're here with Seamus McGranaghan from O'Reilly Stewart. We're taking your questions. And the third question, Rolanda, is?