Leahy (Represented by SIPTU) v Limerick City Council
1. DISPUTE
This dispute involves a claim by Mr. Leahy that he was discriminated against on grounds of age, within the meaning of section 6(2)(f) of the Employment Equality Act, 1998 and in
contravention of section 8 of that Act, when he was required to retire at fifty-five years of age from his position as firefighter with the respondent, in January, 2003.
2. BACKGROUND
2.1 The complainant commenced employment with the respondent as an auxiliary firefighter in June, 1977 and was appointed on a permanent basis to the City Fire Brigade in November, 1981. The respondent operates a mandatory retirement age of fifty-five years for firefighters and the complainant was obliged to retire from his position on reaching that age in January, 2003. He states that fire officers employed by the respondent are not required to retire until they are sixty-five years old. In addition, he contends that firefighters employed by the respondent have previously remained in service after they had reached the age of fifty-five years. He further contends that firefighters employed by other local authorities are not required to retire at fifty-five years of age. In summary, the complainant submits that the respondent's treatment of him constitutes discrimination on grounds of age contrary to the Employment Equality Act, 1998. The respondent rejects the complainant's allegations stating that the complainant has been treated in the same way as every other firefighter in the local authority and submits that the operation of different retirement ages for firefighters and fire officers is permitted by section 34(4) of the Employment Equality Act, 1998.
2.2 The complainant referred a complaint under the Employment Equality Act, 1998 to the Office of the Director of Equality Investigations on 16 December, 2002. In accordance with her powers under the Act, the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Act. Written submissions were received from both parties and a hearing of the complaint took place on 28 March, 2003. A number of issues emerged at the hearing which required clarification and gave rise to further correspondence with the parties subsequent to the hearing. Final confirmation was received from the parties that the Equality Officer was in possession of all the relevant material from their perspective on 26 June, 2003.
3. SUMMARY OF COMPLAINANT'S SUBMISSION
3.1 The complainant commenced employment with the respondent an auxiliary firefighter on 25 June, 1977 and was appointed on a permanent basis as a member of the City Fire Brigade on 12 November, 1981. He was obliged to retire from his position on 30 January, 2003 when he reached the age of fifty-five years as Limerick City Council operates a mandatory retirement age of fifty-five for firefighters. At the time of his retirement he had accrued 25.5 years of reckonable service. Representations to the respondent by the complainant's trade union seeking permission for him to remain in service beyond his fifty-fifth birthday were unsuccessful.
3.2 The complainant's trade union states that the respondent unilaterally introduced the mandatory retirement age of fifty-five years for firefighters in 1974. However, this requirement age does not apply to fire officers, who have the option of remaining in service until they are sixty-five years old. It adds that since the respondent introduced the mandatory retirement age for firefighters, two firefighters have remained in the service beyond the age of fifty-five. One, Mr. A, was a Station Officer and remained until he was aged fifty-seven and the second, Mr. B, remained in the service for 14 months following his expected retirement date to enable him acquire full service requirements for pension purposes. This latter example was on foot of a Labour Court Recommendation under the Industrial Relations Acts, 1946 - 19901. The complainant submits this supports his contention that he was discriminated against.
3.3 The complainant's trade union also states that there are firefighters in other local authorities who are older than fifty-five years of age and cites Galway County Council and Dublin City Council in particular. It draws the Equality Officer's attention to a situation in the former where two firefighters with considerable periods of service were appointed to the position of Sub-Officer and had their retirement ages reduced to fifty-five years as a consequence. The matter was the subject of a Recommendation by the Labour Court under the Industrial Relations Acts, 1946 - 19902 which resulted in both employees not being required to retire until they were sixty years old. It argues that there is disparity among local authorities in the treatment of firefighters and retirement ages, and consequently, this inconsistent approach supports the complainant's contention that he has been discriminated against because of his age.
3.4 The complainant's trade union submits that the EU Directive establishing a general framework for equal treatment in employment3 is relevant to this case. It argues that the Directive, inter alia, outlaws direct discrimination on grounds of age in relation to a broad range of issues concerning employment, including conditions of employment. In conclusion, the complainant contends that no formal contract of employment exists between him and the respondent. In support of this assertion he furnished a letter from the respondent dated 11 February, 2003, which confirms this point.
4. SUMMARY OF RESPONDENT'S SUBMISSION
4.1 The respondent accepts that no formal contract of employment was signed by the complainant when he commenced employment as a firefighter in a permanent capacity. It submits however, that the complainant accepted the qualifications for and conditions of employment of firefighting personnel when he accepted the post on 12 November, 1981. The respondent points out that this document clearly states the retirement age for the post to be fifty-five years. It argues therefore that the complainant made a decision to accept the post in the full knowledge he would be required to retire at that age and the respondent did not subsequently alter or change his conditions of employment in any way. The respondent adds that it has been its custom and practice for firefighters to retire at the age of fifty-five years and that it had merely sought to regularise this situation in 1974. In support of this it furnished details of fifty-one firefighters who retired from the Fire Service. It points out that of this number only five had service beyond the age of fifty-five years. The extension of employment in four of these cases was exceptional and was only sanctioned for operational reasons during the 1970's when the respondent was experiencing manpower shortages. This complement includes Mr. A and the respondent furnished, as evidence of the particular difficulties it was experiencing at that time, a copy of the recommendation of the Chief Fire Officer to extend the service of Mr. A and the approval of the City Manager to the course of action in the circumstances. The fifth person whose service was extended beyond fifty-five years was Mr. B. The respondent accepts that this was on foot of a Labour Court Recommendation but submits that the Court expressly recognised the exceptional circumstances of the case, in that Mr. B had commenced employment with the respondent before the introduction of the mandatory retirement age and that no stipulation he was required to retire at fifty-five years of age had ever been incorporated in his conditions of employment.
4.2 The respondent states that the two firefighters in Galway County Council were permitted to remain in service until they were sixty years old because their retirement age was changed from sixty-five years to fifty-five years following their promotion in 1985 and a question arose as to whether or not they were aware of this change. The respondent points out that the Court, in making its Recommendation, recognised "the unique situation" concerning both firefighters. The respondent acknowledges that Dublin City Council only introduced a mandatory retirement age of fifty-five years for its firefighters in 1996. It accepts that firefighters who joined the Dublin Fire Service before that date may remain in the service until sixty-five years of age but that staff recruited after 1996 are subject to the mandatory retirement age of fifty-five. The respondent accepts therefore that there may be a disparity in Dublin City Council in the treatment of firefighters as regards retirement age.
4.3 The respondent set out the rationale underpinning the introduction and operation of the retirement age of fifty-five for firefighters. It also refers to some research and reports which recommend the retention of that retirement age. It accepts that fire officers are not required to retire at the age of fifty-five and rejects the comparison between fire officers and firefighters made by the complainant. It argues that the duties of both posts are different, in particular fire officers do not have the same level of physical activity in the context of attendance at incidents. In addition, fire officers have responsibility for staff issues and are required to have an appropriate professional qualification on joining the service. The respondent submits therefore, that firefighters and fire officers are two distinct categories of employees, each with their own conditions of employment, that such arrangements are standard and are not unlawful contrary to the Employment Equality Act, 1998.
5. SUMMARY OF THE HEARING
5.1 The complainant argued that he had never signed a formal contract of employment with the respondent but confirmed that he had signed a document setting out the qualifications and conditions of employment attached to the post, when he commenced as a permanent firefighter in November, 1981.
5.2 The complainant stated that, at the time of the hearing, a Working Group established under the auspices of the Labour Relations Commission was looking into the conditions of
employment of retained firefighters. Retained firefighters are paid a financial retainer and are then paid an agreed fee for each occasion they are called out to an incident. Consequently, he submitted these staff are part-time employees. The complainant's trade union stated that a possible recommendation from the Working Group was the retirement age for retained firefighters would be raised to sixty years of age. It stated that the Protection of Employees (Part-Time Work) Act, 20014 required part-time employees not to have less favourable conditions of employment or to be treated in a less favourable manner than comparable fulltime employees. It submitted that conversely, this legislation required full-time employees not to be less favourably treated than part-time counterparts. It further submitted that this was the position in the instant case because retained firefighters did not have to retire at fifty-five years of age, although this was de facto what occurred. The respondent disputed the contention that retained firefighters are part-time employees. It accepted the complainant's description of how they are remunerated and added that they do not accrue pension entitlements at present, although this was being explored. It added that in any event, there are no retained firefighters in Limerick City Council.
5.3 The respondent stated that section 34(4) of the Act provided that employers could set different retirement ages for employees, or a class or description of employees, without such action constituting discrimination on the age ground. It submitted therefore, that its actions in the instant case were permissible in accordance with that provision. The complainant's trade union representative argued that section 34(4) must be interpreted in the context of relevant caselaw. He re-iterated the Recommendations of the Labour Court mentioned above which he stated, clearly permitted other firefighters to remain in the service after they were fifty-five years old. In addition, he cited the judgement in Donegal County Council v Porter and Ors5.
He said that in this case Flood J held that an attempt on the part of the respondent to force the claimants to retire at fifty-five years old was a unilateral attempt to alter their terms and
conditions of employment. The complainant's representative submitted that Limerick City Council had adopted such an approach in 1974 and the case cited was therefore relevant. The respondent rejected this assertion and re-iterated the point that the Council had always operated a retirement age of fifty-five for firefighters, it merely sought to formalise this arrangement in 1974. It accepted that there was disparity among local authorities on the issue of retirement ages but this arose because each local authority made its own decision in this regard. It confirmed that it had the necessary delegated authority from the Department of the Environment and Local Government to determine such matters itself. A copy of an e-mail from an official in that Department confirming this was subsequently furnished to the Equality Officer and the complainant's trade union representative.
5.4 The respondent argues that firefighters and fire officers are two distinct categories of employees. In support of this contention it states that fire officers are required to hold an appropriate third level qualification (e.g. Architecture or Engineering) before they can apply for such a post, there is no such requirement on a firefighter. Whilst fire officers attend incidents they do so in a supervisory role, taking command of the situation if necessary, and they do not physically fight fires. They make a decision whether or not their presence is necessary at an incident and do not attend in every instance. In addition, they have significant management functions. The respondent furnished the Equality Officer with job profiles for the posts of Assistant Fire Officer (Prevention) and Assistant Fire Officer (Operational). It added that fire officers are "officers" of the local authority and may be transferred, if necessary, to other professional or technical areas of the local authority as a result of their professional qualifications - firefighters do not have this mobility. Firefighters have no automatic promotional access to fire officer - the promotional outlet is to Sub-Officer and Station Officer. Firefighters can however become fire officers once they hold the necessary third level qualifications and secure the post through competition. In such circumstances the firefighter would be issued with new terms and conditions of employment in respect of the post, including a retirement age of sixty-five years. The complainant argues that firefighters and fire officers are part of the same class of employee. In support of this contention it states that certain terms of the Local Government (Superannuation) (Consolidation) Scheme, 19986 apply equally to firefighters and fire officers.
6. CONCLUSIONS OF THE EQUALITY OFFICER
6.1 The issue for decision by me is whether or not Limerick City Council discriminated against Mr. Leahy on grounds of age, within the meaning of 6(2)(f) of the Employment Equality Act, 1998 and in contravention of section 8 of that Act, when it required him to retire from the position of firefighter with the Council, when he reached the age of fifty-five years in January, 2003. In reaching my decision I have taken into account all of the written and oral submissions made by both parties.
6.2 Section 6(1) of the Employment Equality Act, 1998 provides:
"For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated." .
Section 6(2) of the Act defines the discriminatory grounds, which includes, inter alia, (f) that they are of different ages, but subject to subsection (3) (in this Act referred to as "the age ground"),.
6.3 The complainant's case is that the respondent operates different retirement ages for firefighters and fire officers, which he submits are part of the same class of employees, and that this practice constitutes less favourable treatment of him, as is a firefighter, on grounds of age. His representative cites caselaw from the Labour Court and the High Court which, it submits, supports this contention. The respondent's case is that its practice of applying different retirement ages to firefighters and fire officers is not unlawful in that it is permitted by section 34(4) of the Employment Equality Act, 1998. The core element of its contention in this regard is that firefighters and fire officers are two distinct categories of employees. Notwithstanding this argument, the respondent submits that the caselaw cited by the respondent is not relevant to the instant case as it relates to circumstances which were exceptional and unique to those matters.
6.4 It has long been the case in this jurisdiction in respect of complaints of discrimination on grounds of sex, that the complainant must first present facts from which it may be presumed less favourable treatment has occurred. Once such a prima facie case has been established by the complainant, the burden of proof shifts to the respondent to rebut the presumption of discrimination by producing evidence as to the existence of an objective, non-discriminatory reason (or reasons) for its actions. Such an approach is now part of Irish law in respect of gender discrimination case through the European Communities (Burden of Proof in Gender Discrimination Cases) Regulation, 20017. This has become the standard approach of Equality Officers in respect of complaints of discrimination on the non-gender grounds of the Employment Equality Act, 19988 and it has also been applied by the Labour Court9. In light of the foregoing I intend to apply this approach in the instant case.
6.5 The complainant raises the issue that the respondent did not have the necessary authority to introduce the mandatory retirement age of fifty-five years for firefighters in 1974. I do not concur with this view. An e-mail from an official in the Local Government Personnel Section of the Department of the Environment and Local Government states that matters relating to recruitment, terms and conditions of employment etc. in respect of non-officers, were a matter for the local authority. The complainant has adduced no evidence to the contrary. In addition, the respondent was perfectly entitled to act in that manner as it did not breach any employment legislation in existence at that time.
6.6 The complainant states that two firefighters, Mr. A who was a Station Officer and Mr. B, who was a firefighter, remained in the service after they had reached the age of 55 years. The respondent accepts that this was the case and indeed, states that there were three other firefighters afforded this treatment. I have examined the data furnished by the respondent setting out the retirement details of fifty-one firefighting staff and I am satisfied that this is the case. The respondent states that Mr. A and three other staff were granted extensions of service after the age of fifty-five years because of the difficulties it was experiencing at the time recruiting staff. It furnished an internal memorandum in relation to the circumstances concerning Mr. A in support of this contention. I am satisfied, on balance, that there were extenuating circumstances prevailing at the time which prompted the Council's response to extend the service of those employees. In any event, all of these extensions were granted between 1972 and 1978 when discrimination on grounds of age was not unlawful. The respondent states that Mr. B was permitted to remain beyond the age of fifty-five years on foot of a Labour Court Recommendation. It submits that the Court expressly recognised the exceptional circumstances of the case, in that Mr. B had commenced employment with the respondent before the introduction of the mandatory retirement age and that no stipulation he was required to retire at fifty-five years had been incorporated into his contract of employment. I have examined the Court's Recommendation and I am satisfied that this is the case. In addition, I note the Court's comment that SIPTU had given a firm assurance to the Court not to regard the case as having precedent value. In light of the foregoing, I am satisfied that the case cited has no precedent value to the instant one. Before leaving this point I feel I must address one further issue. I have examined the retirement details mentioned above and note that of the remaining forty-six staff, twenty-three of them retired at the age of fifty-five years. The remainder either retired at younger ages due to ill health, resigned or died in service. In my opinion, this demonstrates that the respondent has consistently applied a retirement age of fifty-five years for firefighters since 1974 and the complainant has adduced no evidence to the contrary.
6.7 The complainant states that two firefighters in Galway County Council were permitted to remain in service after they had reached fifty-five years of age, on foot of a Labour Court Recommendation. It also states that firefighters in Dublin City Council were only required to retire at fifty-five years from 1996. As regards the latter point I note the respondent accepts this as accurate. However, in light of the confirmation from the Department of Environment and Local Government that local authorities could set terms and conditions of employment for firefighters, it appears to me that such an approach was entirely consistent with that power and the respondent cannot be held responsible for the actions of another local authority. As regards the situation regarding Galway City Council, I have examined the Labour Court Recommendation in that case and note that the basis for the Court's decision to extend the retirement age of the two employees in question to sixty years was the "unique" situation they found themselves in. Both had joined the Fire Service at a time when the retirement age applicable to them was sixty-five years. As a result of promotion in 1985 this retirement age was amended to fifty-five years. However, neither employee was advised that this was the case and they had an expectation to work until sixty-five years of age. I cannot accept that the complainant's circumstances in the instant case are similar to those which pertained to those two employees. The complainant confirmed at the hearing that he had signed a document setting out the qualifications and conditions of employment attached to the post of firefighter with the respondent when he commenced as a permanent firefighter in November, 1981. I have examined a copy of this document and it clearly states that the retirement age is fiftyfive years. I am satisfied therefore, that the complainant was fully informed of the retirement age at that time and accepted all of the terms attached to the post, including the mandatory retirement age of fifty-five years, notwithstanding that no formal contract of employment had been signed by him. A similar approach was adopted by the Employment Appeals Tribunal in the case of two named employees (who were firefighters) against Roscommon County Council under the Unfair Dismissals Acts, 1977-200110 ,when it held the dismissal of one of the firefighters, having reached the age of fifty-five years, not to be unfair in circumstances where he was aware he was required to retire at that age under revised conditions of employment.
6.8 The complainant also cites the High Court case of Donegal County Council v Porter and Ors11. I note this case relates to a situation where a number of firefighters with long service were dismissed by the Council on the ground that they had reached fifty-five years of age. At the time the claimants commenced employment there were no written contracts of employment and there was no reference to a specific date of retirement. There was an expectation on their part that they would remain in employment until they were sixty years old and the Council applied a mandatory retirement age of fifty-five years to them, following receipt of a Circular from the Department of the Environment and Local Government recommending such a course. In the High Court Flood J held "the claimants were employed on the basis of an expectation that, while fit and capable, they would continue in the fire brigade service up to age 60; nothing had occurred since then which could be said to have altered that state by consent and the attempt to force them into retirement at age 55 was an attempt to unilaterally alter that contractual situation ....."12 In assessing the precedent value of this judgement on the instant case I note that the decision to reduce the retirement age to fifty-five years was a unilateral one taken by Donegal County Council and the claimants did not at any time consent to such a change, nor indeed were they given any prior notice of it. Their expectation was that they were not required to retire until they were sixty years old. As I have indicated in the previous paragraph, Mr. Leahy accepted his position of permanent firefighter with the respondent in the full knowledge that he would be required to retire at fifty-five years of age and did not have any expectation to remain in service beyond that time. Therefore, I do not consider the judgement of Flood J to have precedent value in the instant case.
6.9 The complainant submits that the Equality Officer should have regard to EU Directive stablishing a general framework for equal treatment in employment13 in reaching any decision on this case. It is correct to state that the national courts, or any forum operating a judicial or quasi-judicial function in a Member State, must interpret national legislation in the context of any EU legislation and jurisprudence. The EU Directive cited by the complainant is not yet in force in Ireland and is not required to be transposed until December, 2003. It follows therefore that the complainant cannot rely on it. In addition, the complainant should note that recital 14 of the Directive provides that it is without prejudice to national provision laying down retirement ages.
6.10 The complainant argues that he received less favourable treatment as a full-time firefighter than retained firefighters, whom he submits are part-time firefighters in the context of Protection of Employees (Part-Time Work) Act, 200114. I offer no comment on this other than a claim for redress in respect of an alleged breach of that legislation is not a matter for consideration by this Tribunal and should be directed to the appropriate forum.
6.11 The respondent submits that it is permitted to set different retirement ages for firefighters and fire officers in its employ by virtue of section 34(4) of the Employment Equality Act, 1998. This section provides:
"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.".
In support of its contention the respondent submitted a job specification of the role of fire officers and elaborated on it with specific comments at the hearing. The complainant rejects this assertion stating that both firefighters and fire officers are part of the same class of employee in that they carry out some of the same duties and that certain terms of the Local Government (Superannuation) (Consolidation) Scheme, 199815 apply equally to both. I have examined the material submitted by both parties on this point. I note in particular, the following -
(i) that fire officers are required to have a relevant third level qualification before they are considered for the post. No such requirement applies to firefighters;
(ii) fire officers have discretion whether or not to attend an incident. No such discretion applies to a firefighter. When on duty they must attend;
(iii) in the event that a fire officer attends an incident, s/he usually takes command of the situation. Firefighters are therefore obliged to act on any instructions received from a fire officer in those circumstances, whether received directly or indirectly through a chain of command;
(iv) there is no automatic promotion access by firefighters to the post of fire officer. Firefighters must first attain an appropriate third level qualification and then compete for the post in the normal way;
(v) fire officers are interchangeable with other professional staff in the local authority. No such mobility applies to firefighters;
(vi) fire officers have staff supervision and other management functions which are not applicable to firefighters.
I accept that there may be some overlap in the duties performed by firefighters and fire officers e.g. Station Officers have staff supervision functions. However, I do not consider these to be significant on the basis of the evidence presented by both parties. In addition, I do not consider the fact that both firefighters and fire officers are treated in similar fashion under the Local Authority Superannuation Code to outweigh the differences I have detailed above. I find therefore, that firefighters and fire officers are distinct categories of employees and consequently, it is not unlawful for the respondent to set different mandatory retirement ages for each category, in accordance with section 34(4) of the Act.
7. EQUALITY OFFICER DECISION
7.1 I find that the complainant has failed to establish a prima facie case of discrimination in respect of the respondent's requirement that he retire from his position of firefighter when he reached fifty-five years of age. I further find that the application of different retirement ages by the respondent to firefighters and fire officers comes within the parameters of section 34(4) of the Employment Equality Act, 1998.
Vivian Jackson
Equality Officer
11 September, 2003
1 LCR 16262
2 LCR 16319
3Council Directive 2000/78/EC of 27/11/2000
4No. 45 of 2001
5High Court [1993] ELR 101
6 S.I. 455 of 1998
7 S.I. 337 of 2001
8 DEC-E2002/46; DEC-E2002/47; DEC-E2002/49; DEC-E2002/50
9 Revenue Commissioners v O'Mahoney & Ors EDA 033
10 UD344/2002 and UD345/2002
11 High Court [1993] ELR 101
12 High Court [1993] ELR 101
13 Council Directive 2000/78/EC of 27/11/2000
14 No. 45 of 2001
15 S.I. 455 of 1998