The British physician and philologist, Peter Mark Roget, was 69 when he was forced to retire from the elite Royal Society. It might have rankled Roget to lose membership of an association that to this day describes itself as “a fellowship of many of the world’s most eminent scientists and the oldest scientific academy in continuous existence.”

But I bet he wasn’t perturbed at all. After all, he spent his ‘retirement’ as he did his earlier years: Fruitfully. Achieving more of his objectively worthwhile goals, including the compilation and publication of the world’s first thesaurus.

Roget is proof that we can thrive on our own steam after retirement. But that isn’t to suggest that everyone can. After all, we live in a world that’s inherently unfair. One in which some are physically and mentally robust and others are not.

One in which many must work as long as they can, so as to continue paying rent for the room that keeps them off the streets. We aren’t born equal. Privilege is unfairly dispersed.

They’re just a couple of reasons why we push for equality, law reform and what’s right, whenever we can. And why Irish people are increasingly pursuing legal advice about MR.

In Ireland, 2018 legislation increased the compulsory retirement age for most public servants, from 65 to 70. For private sector workers wanting to stay longer in their jobs, their options include accepting their fate or battling to change it. Increasingly they are arguing that discrimination is at the heart of their being forced to retire.

The statistics are telling. The Workplace Relations Commission (WRC) is the body that generally adjudicates disputes on MR. Its latest Annual Report, published in 2023, shows a 176 per cent increase in age-related discrimination complaints: 514 in 2022 up from 186 cases in 2021.

One who knows more about MR than most, is Louise Harrison, partner in the employment team at William Fry. Asked whether employers are currently permitted to impose a MR age in Ireland, she replies: “For the time being, yes, an employer in Ireland can lawfully fix and enforce a MR age. This is subject to certain conditions; the MR age must be justified by a business case and be an appropriate means of meeting the business need(s) in question.

“A Bill concerning MR is currently on the legislative agenda for Autumn,” she continues. “If the Bill is enacted, an employee would have a statutory right to object to the enforcement of MR against them before they reach the statutory pensionable age (currently 66). However, based on the published Scheme of the Bill, the right to object would be a qualified right which could be trumped by an employer’s business case if applicable to the objecting employee.”

Many view MR as unfair, but as for whether it breaches equality legislation, Harrison says: “We have equality legislation which generally prohibits discrimination on specified grounds, including age. However, the legislation specifically says that it is not discriminatory for an employer to apply a MR age, provided there is an objective justification (in other words, a business case) for the employer’s MR policy.”

Asked how employers justify imposing MR ages, she replies: “Examples of “objective justification” recognised at law include occupational safety and the ability to retain and incentivise employees, or “intergenerational fairness.”

Noting that recent decisions by the WRC against employers, have attracted commentary heralding the death knell for MR, Harrison says: “This is perhaps an oversimplification of the law. These decisions simply show that an employer will struggle to justify MR with a “one size fits all” business case which does not translate to a given employee’s situation. It will also generally be difficult to stand over a business case that is only devised retrospectively when a legal challenge arises.

“The WRC has also been critical of employers who have failed to engage meaningfully with employees who request to work beyond MR age. Employers intending to maintain a MR framework are therefore best advised to keep their underlying business factors under review on an evolving basis and build in flexible principles and processes for dealing with requests to work beyond the given MR age.”

On the topic of whether the imposition of a MR age tends to be for the benefit of the employer or the employee, Harrison says: “That will depend on the perspective from which the MR age is seen. Increasingly, it is the employees who are in generally good health and who may not have adequate retirement savings and/or who are unable to immediately access statutory retirement benefit, who see MR as a crude, objectionable measure.

“With the move away from the defined benefit pension model of pension provision to a defined contribution model in the private sector, the problem of retirement savings inadequacy is expected to worsen in the years ahead.

“This might be expected to drive increased resistance to enforcement of MR.

“From an employer’s perspective, MR can be seen as a framework which supports retaining a dynamic, motivated workforce where talent feels encouraged to “stay the course”, and so employers can argue that an MR policy is of benefit to employees collectively and to HR culture.”

There are, of course, clear positives to MR. Citing one, Harrison says: “The benefits include certainty (which supports transitional planning) and mitigation against talent attrition.”

As for the sometimes-unwelcome HR and personal impact of enforcement, she says this can be mitigated by employers implementing the principles in the Statutory Code on “Longer Working”, to avoid the ambush factor and facilitate a dignified transition. It is often possible — and is lawful in principle — to retain the institutional memory and acquired skills of older workers by way of fixed-term contracts or consulting or other transitional arrangements beyond the given MR age.

Of the numerous WRC decisions in recent years that went against employers who sought to stand over MR ages, Harrison says: “These decisions very much turned on their facts. The decisions show that the WRC will not simply take an employer’s stated business case at face value but will interrogate it as it applies in the particular employee’s situation. In the Doolin -v- Eir case — decided late in 2023-the complainant challenged his MR at 65 under equality legislation.

“Eir put forward intergenerational fairness and health and safety, as grounds of objective justification for the MR. The WRC did not accept either of these grounds. It was noted that if Doolin (an IT worker in a relatively junior role) had been permitted by Eir to continue working as requested, he would not be depriving younger colleagues of opportunities to progress and that the health and safety argument lacked validity for a desk-based IT role. The WRC decided that Eir had failed to objectively justify the MR and ordered that Doolin be reinstated in his role.”