Feargal Quinn (Independent)

I support the comments of Senators Tuffy and Terry in respect of this amendment and that in my name. As with amendment No. 3, amendment No. 6 arises on foot of a concern I raised on Second Stage. I hope the Minister of State will make a little history by accepting it. I read an article some years ago which asserted that the Americans had found that if one wished to detect future trends, reading local newspapers was very effective. It was very interesting. The article said that local newspapers are very much stuck for space and have to find things to exclude. If one looks up the word "discrimination" in the newspapers of the 1950s, it will refer to discrimination based on colour. In the 1960s, the word was used to refer to discrimination based on racial grounds. In the 1990s, however, the word discrimination occurred most often in local newspapers in the context of discrimination on the basis of age. Right around the United States of America in the early 1990s laws and rules were introduced at local level to prevent discrimination on the basis of age. We have not taken that first step yet, although Senator Tuffy's amendment is an attempt to do so.

I spoke about the Minister of State making history. Provisions will be made in this area and it is a question now of whether the Minister of State decides to take the first step. As I said on Second Stage, while our population is getting steadily older, we show very few signs of having come to terms with the fact. One symptom of this failure is that there is no provision in this Bill or the entire corpus of equality legislation which sets out to attack the concept of compulsory retirement. My amendment seeks to correct this position.

I must make my position clear on this matter. I do not wish to raise the age of retirement as does the Society of Actuaries. While the Government is poised to introduce a measure to raise the retirement age in the public service, that is a separate matter from the one I am raising. I have no wish to force anybody to work beyond the accepted retirement age and my amendment makes that quite clear in paragraph (c). It states: "Nothing in this subsection shall be construed as interfering with the right of an employee to retire at a particular age, when such a right exists by way of contract, regulation or custom." I am not talking about forcing anybody to work up to or beyond a certain age. I am talking about circumstances in which a person is willing and able to continue to work, but is prevented from doing so by a compulsory retirement age.

People vary greatly in their wishes in this area which is precisely why I am against compulsion to regulate it. Some people cannot wait to move on to a life of retirement while others are greatly distressed at the thought of stopping work and argue that they are fully capable of continuing. Others would like to work part-time or in a reduced capacity. Senator Terry has spoken of the United States of America where it is so interesting to see the number of people who have retired from one job and are happy to work part-time in various others.

Those who wish to work in a reduced capacity find that taxation and pension arrangements make that more difficult to achieve than it should be. Amendment No. 6 arises from my belief that the time has come to outlaw the concept of compulsory retirement at an arbitrary age. The key word is "arbitrary" as that is where the discrimination arises. No one would argue that older people are as physically capable as younger people. No one would argue that some extremely old people do not begin to lose some of their mental faculties. For such people, an honourable retirement is an appropriate way in which to spend their last days. No one would dispute that and my amendment provides specifically for such circumstances in paragraph (d). It states:

Nothing in this subsection shall be construed as requiring any person to retain an individual in a position if the individual—

(i) will not continue to undertake the duties attached to that position or will not continue to accept the conditions under which those duties are, or may be, required to be performed, or

(ii) is no longer fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

I am sorry to have gone through it in such detail, but I have taken some pains to make sure those areas are covered. To argue that at a particular age, usually 65, all people without exception become incapable of further employment is simply wrong. More to the point, it is flagrant discrimination. As such, it should feature in equality legislation which purports to remove all discrimination on any of the nine grounds. I am not arguing that abolishing the concept of compulsory retirement would achieve what is necessary to restructure our society to cope with the significant challenge of an ageing population. While making compulsory retirement illegal would be a small dot on a very large canvas, it would be a start. Its importance would be in signalling our alertness to the issue and our concern for the interests of the older members of our population.

Making compulsory retirement illegal would have considerable benefits and almost no cost. At a personal level, nobody would be forced to work beyond whatever was the normal retirement age in his or her particular occupation. At a business level, no one would be forced to continue to employ a person who was incapable of performing the essential functions of a particular job. The EU directive is quite clear on this point and the wording of my amendment underlines it. To those who prefer to continue to work, this change would be a great boon. In most cases, there would be a clear benefit to the companies for which they work. To the wider economy, the benefits of having someone continue to be economically active are too obvious to require spelling out.

There may be some exceptional employments in which compulsory retirement is appropriate such as those in the Defence Forces and the Garda. Senator Terry has mentioned that there has been some movement in that direction. This is why the final paragraph of my amendment specifically identifies both the Defence Forces and the Garda and excludes them from the scope of my proposals. In making these exclusions, I am trying to side-step some obvious objections to my amendment. As I said on Second Stage as well as at the outset of my remarks on these amendments, the Minister of State has an opportunity to make a little history by accepting my proposals. I hope he takes it.