Mandatory retirement in the spotlight in Rotary Club lecture
Government must move quickly to address the issue of mandatory retirement and age discrimination, according to lawyer Jennifer Haworth.
However, Mrs Haworth told the Hamilton Rotary Club yesterday that Government must also strike a very delicate balance to protect the rights of older Bermudians while ensuring opportunities for those entering the workforce.
“Clearly, this issue is not going to go away,” she said. “It’s clear that we have an increasing number of individuals reaching the age of 65 who are not ready or are not financially able to retire.
“It’s clear that we also have a pension system that’s straining under the pressure of having more people drawing from it than contributing to it.
“Something is going to have to be done here in Bermuda to address this issue. It’ll need to be something that protects generally against age discrimination but while recognising that there are some circumstances in which it may be legitimate for individuals to retire for the aims of the employer.
“In any sense, a delicate balance is going to have to be struck, and it’s going to have to be struck soon to address this issue.”
Mrs Haworth, an Associate at MJM Ltd, said that the question of a mandatory retirement age has become an international issue in recent years due to increasing life expectancies and falling birth rates causing a “demographic disaster”.
She noted the recent SAGE report, which described the current civil service pension scheme in Bermuda was unsustainable, recommending that the mandatory retirement age be increased to relieve the pressure on the system.
And, given the current economic situation, many seniors simply cannot afford to retire, but at the same time seniors remaining in the workforce longer could limit employment opportunities for younger people trying to enter the workforce.
“That’s what I mean when I say there’s a delicate balance that needs to be struck,” she said. “In some sense, we need people to work longer, to be contributing, but we need to allow opportunities for those coming up as well.”
Mrs Haworth said that other jurisdictions have approached the issue in different ways.
The US has ruled that compulsory retirement is unlawful outside of certain circumstances, while in France employers can request employees retire at 65, but the employee can refuse and continue to work until 70.
And in the UK, the retirement age of 65 was abolished in 2011 on the grounds of discrimination except if it is a “proportionate as a means of achieving a legitimate aim” — which is determined on a case-by-case basis.
Mrs Haworth noted that there had been amendments to Bermuda’s Human Rights Act to prevent discrimination on the grounds of age, but those amendments do not cover the workplace and the Employment Act offers only limited protection for seniors in the workforce.
“There is a section in the Employment Act that states that age is not a valid reason to terminate one’s employment,” she said. “Sure, if you feel you have been terminated solely on the basis of your age, you have open to you the idea of launching an unfair dismissal claim with an employment tribunal.
“You can seek damages of up to 26 weeks wages and you can even seek to be reinstated, but the fact is that reinstatement is rarely awarded, particularly in circumstances where matters have become rather contentious between the parties.
“That doesn’t help us in cases of people who aren’t employed yet, for example people over 65 who are looking for employment and feel they have been discriminated against trying to seek employment.”
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