Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

I thank Senator Mary White for bringing forward the Bill and her kind remarks. I also thank Senator John Crown for his contribution and assure him I have been in age denial for at least 20 years. I do not care what he says; as far as I am concerned, I am still 39 and intend to retain this mental approach. I have a great deal of sympathy on this issue and would like 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 Mary White's initiative and intentions in bringing forward the Bill for discussion in this important debate and share her concern that we facilitate the active participation of older workers in the labour market in a manner that benefits society as a whole. It is right on an individual level. We live in a different era in which we have a healthier society, as Senator John Crown correctly said, and people enjoy greater longevity. Many in their 60s and 70s have the alacrity and mental capacity to make a continuing and substantial contribution to their lives and those of others and to remain in the workforce and be innovative. We must address these issues. I am not sure what Senator Mary White has against 80 year old pilots, but I came across someone in the United States who, in his 83rd year, was still piloting a private aeroplane. He does it for his own enjoyment but with great aplomb and expertise. He could not be remotely described as frail.

I have listened carefully to the points made. It is clear to us all that this is a complex issue which involves many aspects of the employment relationship and the relationships between workers and employers with the State. What is not clear, however, is how this is solely an issue of age discrimination. As Minister, my specific remit in this issue is promoting equality of opportunity and combating discrimination against individuals in employment on the grounds of age. Much of this debate, however, rightly revolves around sustainable pensions policy and policies on access to work and retirement. Senator Mary White correctly made reference to both the public and private sectors. Individuals in the public sector welcome the fact that they have reached retirement age because it gives them the opportunity to engage actively in the private sector with the security of the pension they have earned as a financial backdrop. In the private sector people often enter into contractual relationships in their employment which specify a particular age by which they must retire. We have to be legally careful about how we deal with those in circumstances where there are contractual arrangements with which the State cannot arbitrarily interfere.

In addition to the anti-discrimination legislation Senator Mary White has highlighted in her Bill, the matter of encouraging and facilitating longer working lives also involves fundamental aspects of pensions policy and State pension reform, public sector employment and pensions, workplace relations, workforce activation and lifelong 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 European Union. Senators 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. It is important to emphasise that. 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. As I stated, this is frequently a contractual position of individuals in employment but it is not required by legislation. The upper age limit for bringing claims under the unfair dismissals Acts of 1977 to 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.

I have concerns about the concept of a "normal retiring age". It is a very amorphous concept in the context of employment. What might have become by custom a normal retiring age in a particular area of employment and what might have been normal 20 years ago may justifiably be regarded as abnormal today in the context of the substantial improvements to people's health and a broad range of other reasons. I refer not only to the assistance provided through our health service and the health checks that so many people get which offset potential health difficulties, but also to the increased standard of living that a great many people enjoy, even in a time of austerity.

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, which is very recent legislation. There is now a range of mechanisms and protections for older people if an employer simply decides to terminate the employment of an individual on grounds of age. The difficulty arises where there are contractual arrangements and public service regulatory provisions that apply and which specify retirement age limits.

The Government is also ensuring that access to and enforcement of the rights I have described is made easier. As Senators will be aware, the Minister for Jobs, Enterprise and Innovation, Deputy Richard 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 and 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, Deputy Burton. 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 Departments, social partners and other interest groups to 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 co-ordinated approach and that legislating for piecemeal change in one area, as proposed in this Bill, is ill-advised. For that reason alone, I consider the Bill premature. However, I regard this debate to be of great value and importance. I thank Senator White for introducing the Bill.

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 limit 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 No. 2000/78/EC, which prohibits work-related discrimination on various grounds, including age. The European Court of Justice 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 has considered ensuring the dignity of older workers and the promotion of inter-generational fairness to be among the legitimate aims of such measures.

In circumstances where ambiguity arises, the Equality Tribunal, Labour Court and courts are obliged, where possible, to construe national legislation in the light of the obligation under applicable EU law, which includes judgments delivered by the Court of Justice of the European Union.

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 of the European Union 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 for and overall aim of the compulsory retirement age for assistant commissioners within An Garda Síochána. In that case, the applicant or plaintiff was unsuccessful but he was not unsuccessful simply by virtue of the fact that he reached a particular age. The judgment considered the background justifications and why it was considered appropriate to have a specific retirement age within the Garda Síochána in the context of the evidence heard. 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 of the European Union. This is not an unusual set of circumstances 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 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 people 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 European Union 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. Senator White gave an example of an 80-year-old pilot. 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. Further detailed consideration of the matter is required before making a case for further safeguards for the employment of older workers, such as removing the upper limit on recruitment. As I explained, 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. Advocating at this point any particular remedial measure, such as proposed in this Bill, is premature. For this reason, the Government cannot support the Bill. However, this is a genuinely important issue. It affects thousands of people throughout the country and it will affect many more.

Indeed, I should offer a declaration of interest based on Senator Crown's contribution and point out that, at some stage in the future, it could affect me. All of us hope to benefit from the longevity which would result in this being relevant to our lives.

This is a very useful and valuable debate. I want to apologise to the Senator because, due to other commitments, I cannot stay for the entirety of the debate. However, I will certainly follow the transcript with interest and, as I noted, my colleagues in government are undertaking work in this area and will be very interested in what is said in the House this evening.