Pension experts believe that workers now both expect and hope to work beyond the age of 65.

But as the state pension age is pushed out to 66 in 2021, and 68 in 2028 and beyond, a pension funding crisis is looming with attendant legal dilemmas.

Expert speakers at a recent Mason Hayes Curran pensions seminar told listeners that they have had a spike in queries about the legality of existing pension arrangements and in particular, about obligatory retirement ages.

Ireland is out of step with most other European countries in having a contractual retirement age, the seminar heard.  A commission on the future abolition of mandatory retirement ages has described a set pension age as “outmoded” and comparable to the historic marriage bar.

Hunger

MHC partner Liz Ryan also cited a hunger among workers for more diverse working arrangements, where people carry on working for longer but with built-in flexibility.

She said many employees will simply not be able to afford to retire as the gap in state pension provision is extended beyond the current year with a retirement age of 65 and the state pension starting at 66.

Until now, employers have had a retirement age of 65 because it correlated with the previous state pension age. And pensioners didn’t necessarily expect to live thirty years past their retirement, now a definite possibility as life expectations lengthen on the back of improved health and nutrition.

Liz Ryan explained the legal framework: while an employer in Ireland can have a contractual retirement age, that specification is persuasive but it’s not determinative.

In other words an employer can no longer fully rely on the contractual retirement age because a body of case law from the EU Court of Justice effectively says that any such determination must pass two tests:

• That it is objectively and reasonably justified by a legitimate aim
• That the measures of achieving that aim are appropriate and necessary

If an employer’s retirement age doesn’t pass these tests then it is at risk of being deemed discriminatory, the seminar was told.