ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00017442

Parties:

Complaint(s):

Date of Adjudication Hearing: 08/05/2019

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts 1998-2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complainant commenced employment on a number of fixed terms contract on the 29th October 1999 as a permanent an Information Officer on the 11th November 2008 The Complainant’s contract of employment is incorporated in the Employee Handbook

The facility to request working beyond an employee’s 65th birthday is contained within the employee’s handbook and the complainant had the option to remain in employment until the age of 66.

Summary of Complainants position

The complainant was due to retire on reaching her 65th birthday, in line with the respondent’s retirement policy and express wording of her contract of employment.

By letter dated October 20th, 2015 the complainant stated that she did not intend to retire on her 65th birthday.

On the 9th December 2016 the complainant wrote to the respondent appealing the decision not to allow her to continue working.

The complainant set out the following grounds for her appeal;

1          The respondent as an organisation has a very flat structure and it does not appear that there is a culture of internal promotion as evidenced by the recent appointment over a number of internal candidates of an external candidate to a fixed term purpose contract in the role of a team supervisor.

2          All new positions or opportunities for employment are made equally available both to external and internal candidates via the short-lived panel system that she was discriminated against on the grounds of age.

3          The role of a part time information Officer is an entry level position and as such there is no promotional path for “other employees” to aspire to.

4          The complainant stated it is an additional act of discrimination to require me to retire at an earlier age than my colleagues with whom I work on a daily basis, simply because they happen to be younger than me and who will not, be compelled to retire until they are 68.

5          The complainant further stated in her correspondence and she reference in particular to the report of the Interdepartmental group on Fuller Working Lives(August2016) where one of the key principles in line with the vision set out in the National Positive Ageing Strategy as follows ”As people live longer and healthier there should be an acceptance by workers and employers that longer working is necessary , desirable and possible. A shift in “culture norms” around retirement is therefore needed on all sides.

6          The complaint also made reference to the Dail debate on a report from Age Action

The complainant subsequently requested an extension to her contract and on the 18th January the respondent considered the request and it was decided to offer the complainant a fixed term contract for one year in line with the respondent’s policy.

The complainant accepted the fixed term contract by letter dated the 19th April 2017.

The complainant sought a further extension to her contract which was refused, and her employment was terminated on the 30th April 2018.

The complainant lodged a grievance in accordance with the respondent’s procedures which was not upheld.

Summary of Respondent’s position

The complainants was due to retire on reaching her 65th birthday, in line with the respondent’s retirement policy and the express wording of her contract of employment and in the Employee Handbook.

By letter dated the 20th October 2015, the complainant stated that she did not intend to retire on her 65th birthday.

By letter dated 21st November 2016 the respondent informed the complainant that her request to continue beyond the normal retirement age of 65 had been refused and that “the main reason why this request cannot be accommodated because the purpose of retirement age of 65 or 66 is to allow promotional opportunities to other employees” in the organisation.

On the 18th January 2017, the respondent again considered the complainant's request and it was decided to offer the complainant a one-year fixed term contract

The complainant wrote to the respondent on the 19th April 2017 confirming her acceptance of a one-year fixed-term contract which was subject to certain express conditions including that there will be no alteration or extension of the contract.

The complainant’s employment ceased on the 30th April 2018.

On April 3rd, 2018 the complainant lodged a grievance with the respondent, citing there was no objective justification for use of the fixed term contract (and other related issues).

At around the same time, the retirement policy was considered by the National Employer Union Forum and the retirement age was reset to be in line with government and social welfare in March 2018.

A subsequent report and findings were issued to the complainant on May 31st, 2018 and the reason why her grievance was not upheld was communicated to the complainant.

The respondent accepted that the complainant should have been given a better explanation regarding the decision not to renew her fixed term contract for a further 12 months however the letter dated the 20th April outlined the objective justification i.e. while the original cessation of contract the objective justification given to you was that the respondent were following the Retirement Policy laid down in its Staff Handbook and that the purpose of a retirement age is to allow promotional opportunities to other employees within the organisation. A further explanation of this objective justification for you is that the Board of the respondent espouse the principle of intergenerational fairness to allow for younger workers to gain promotional employment and to ensure that we have a workforce who can fully participate in any succession planning for vacancies that may arise with the respondent as Team Supervisor level and /or Manager level

It was the respondent's view that the termination of the complainant's fixed-term contract will allow either for existing part-time employees to be offered full-time employment or the amalgamation of two-part posts to make a whole-time permanent post to the next person on the panel and these objective justifications are aligned to those included in S.I. 600 of 2017.

The respondent further submitted that the complainant did not provide a comparator which is required under legislation.

The Respondent stated that the Retirement Age for the Complainant was clearly set out in the terms of employment contract (contained in the associated handbook). The Respondent referenced a number of Decisions – the High Court in Donnellan v The Minister for Justice, Equality and Law Reform (2008) – a number of cases of the Court of Justice of the European Union from 2005 to 2010 which all addressed the issue of age discrimination and objective justification.

The Respondent stated they have operated a compulsory retirement age of 65 for promotional opportunities in 2016 there were 2, 9 in 2017 and 4 in 2018.

Findings

It is submitted whether the complainant was discriminatorily dismissed on grounds of age in terms of Section 6(2)(f) of the Acts, contrary to Section 8(6) (section 6(1) of the Acts provides that discrimination shall be taken to occur where, on any of the grounds mentioned in subsection 2 one person is treated less favourably than another is, has been or would be treated

Section 85(a) of the Acts sets out the burden of proof that applies to claims of discrimination. It requires the complainant to establish the burden, in the first instance, facts upon which she can rely in asserting that she suffered discrimination treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.

Prima facie evidence has been described as “evidence which in the absence of any credible contradictory evidence by the respondent would lead any reasonable person to conclude that discrimination has probably occurred.

Section 4 of the new Act amends S. 6(3)(c) of the Employment Equality Act and deals with offers of fixed term contracts to persons over the compulsory retirement age. The new provisions state that such offers will not constitute age discrimination only if the offer is (a) objectively justified by a legitimate aim, and (b) the means of achieving this aim are appropriate and necessary. These safeguards bring Irish legislation closer to the framework agreement on fixed term work of Directive 1990/70/EC and are in line with case law from the European Court of Justice such as Mangold v Helm (2005) C-144/04, where it was held that national legislation that takes the age of an employee as the only criterion for the application of a fixed-term contract should be struck down where the differential treatment based on age has not been shown to be objectively necessary for the attainment of a legitimate objective.

Section 10 of the Act amends S. 34(4) of the Employment Equality Act by providing that the fixing of different retirement ages must be objectively justified if it is to avoid being considered age discrimination. Such measures must be justified by a legitimate aim and the means of achieving this aim must be appropriate and necessary. Again, this brings Irish law closer to the EU position as outlined in Directive 2000/78/EC. As recognised in Palacios de la Villa v Cortefiel Servicios SA (2007) C-411/05, this position still permits broad discretion in setting national policy on compulsory retirement ages as the encouragement of recruitment is undoubtedly a legitimate aim given the demands of the labour market and the aims of the EU and EC. However, if an employer wants to include a compulsory retirement clause in an employment contract they are now explicitly obliged to justify this or else be open to charges of age discrimination.

34(4) Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees.

Accepted – succession planning & intergenerational fairness, prospect of promotion, must be able to demonstrate

• Amendment of section 6 of the Employment Equality Acts
• “Offering a fixed term contract to a person over the compulsory retirement age for that employment or to a particular class or description of employees in that employment shall not be taken as constituting discrimination on the age ground if—

(i)         it is objectively and reasonably justified by a legitimate aim, and

(ii)        the means of achieving that aim are appropriate and necessary.”

I have examined in detail the Staff Manual version 5 2013 and Under retirement Policy

It states “it is the policy of the organisation that normal retirement age for its employees is 65 years. However, employees have the option to remain in the employ of the organisation until they reach 66 years. Should an employee choose to remain until s/he reaches 66 years of age s/he should notify their employer 6 months in advance of their 65th Birthday “

I further note that the Staff Manual does provide for what is described as “Working after Normal retirement date” and does provide for a once only fixed-term contract to be given to an employee after the age of 65 years – for one year only. I find that the complainant took up this option

The Respondent has also confirmed that the issue of the Respondent’s Retirement Policy was considered by the National Employer Union Forum and the retirement age was reset to be in line with government and social welfare

Section 6(1) of the Employment Equality Acts, 1998 -2015 provides as follows; -

(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring circumstances, discrimination shall be taken to occur where – (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any grounds specified in subsection (2) in this Act referred to as the ’discriminatory ground’

Article 6(1) of Directive 2000/78 provides as follows – Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary”.

This has been given effect by S.I. 610 of 2015, Equality (Miscellaneous Provisions) Act, 2015, which amends the Employment Equality Act, 1998 at Section 34(4) as follows –

“Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees if – (a) it is objectively and reasonably justified by a legitimate aim, and (b) the means of achieving that aim are appropriate and necessary”.

Section 85 A (1) of the Act provides as follows:

Where in any proceeding’s facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.

Decision:

I find that the Complainant has met the burden of proof test and she has established facts from which it is presumed there has been discrimination in relation to her. The burden of proof now passes to the Respondent for a rebuttal.

The Framework Directive (which the Act of 2015 implements), prohibits any direct or indirect discrimination on the grounds of age under Article 2(2) of the Directive. However, Employers can fix different ages for the retirement of employees (which would otherwise constitute age discrimination) provided they satisfy both elements of the Framework Directive’s derogation to the general prohibition of Article 2(2). The derogation entails two distinct criteria which are set out at Section 34(4) of the Act of 2015 being – the retirement age must be objectively and reasonably justified by a legitimate aim of the employer and the means of achieving that are both appropriate and necessary.

The Respondent argued at the Hearing, in relation to objective justification as follows – The Respondent has operated a compulsory retirement age of 65. On the basis of the evidence, written submissions from both Parties at the Hearing I find as follows: The Complainant was provided with a written statement of Terms and Conditions of Employment in relation to the Fixed Terms Contracts from 29th October 1999 and a permanent contract from 11th November 2008. This Contract of Employment makes a provision for a compulsory retirement age of 65 years. This was designed to encourage a high retention rate by creating opportunities for promotion – it creates intergenerational fairness – it ensures the renewal of the employment teams –

These issues have been addressed in a number of key Decision of the Court of Justice of the European Union, commencing with the decision of the Court in 1986 in the Bilka Kaufhaus v Weber von Hartz Case where the Court set down a three tier test as follows – the discrimination must be for the purpose of pursuing a legitimate objective – the means chosen must be appropriate to achieve the stated objective and the means must be proportionate to the stated objective. The following decisions of the Court of Justice of the European Union addressed this issue of age discrimination in the context of a compulsory retirement age. However, it must be stated there is no mandatory retirement age at a national level in this jurisdiction. These cases which I have considered in reaching my Decision are – Felix Palacios de La Villa and Contrefiel Servicios SA (C -411/05) – Rosenbladt v Oellerking Gebaudereinigungsges (C-45/09) – Georgiev v Technicheski Universite Sofia (C-250/09) – Joined cases in Fuchs and Kohler v Land Hessen (C-159/10 and C-160/10)   - Hornfeldt v Posten Meddelande AB (C-141/11).

In all these cases the CJEU did not hold that a Collective Agreement or a national law permitting automatic termination of an employment contract infringed the age discrimination provisions of the Directive as the provisions could be objectively justified in relation to employment policy and the labour market. However, the decision of the CJEU in Case C-447/09 Prigge v Deutsche Lufthansa held that a compulsory retirement age for Pilots was not justified. But in Case C-190/16, Werner Fries v Lufthansa Cityline GmbH, of July 2017, the CJEU held that the Respondent had acted proportionately based on the circumstances of that case and the imposition of the retirement age was not discriminatory.

There have been a number of Decisions of the Labour Court, which I have also considered in making my Decision, as follows – Irish Ferries Ltd v McDermott EDA 31/2016 – Transdev Light Rail Ltd v Chrzanowski EDA 32/2016 and Connaught Airport Development Ltd v Glavey EDA 10/2017.

My findings facts –

There is a reference to a compulsory retirement age of 65 years in both the Complainant’s Contract of Employment and in the Staff Manual (as I have quoted above).

Furthermore, the Staff Manual does provide for employees to work beyond the normal retirement age of 65 years by the provision of a Fixed-Term Contract of Employment –for one year only.

Section 6 (3) (c) of the Act (as amended) provides as follows – “Offering a fixed term contract to a person over the compulsory retirement age for that employment or to a particular class or description of employees in that employment shall not be taken as constituting discrimination on the age ground if – (i) it is objectively justified by a legitimate aim and (ii) the means of achieving that aim are appropriate and necessary”.

I find that the respondent has satisfied the criteria of (34)(4) of the 2015 Act.

The Complainant accepted the fixed term contract and the conditions that were included.

Decision.

In accordance with Section 79(6) of the Act, I declare this complaint is not well founded and fails.

Dated:   06.08.2019

Workplace Relations Commission Adjudication Officer: Jim O’Connell