Mr. Sean Reilly vs Irish Aviation Authority
1. DISPUTE
1.1 The dispute concerns a claim by Mr. Reilly that he was directly and indirectly discriminated against by the Irish Aviation Authority on the grounds of age in terms of Sections 6(1), 6(2)(f) and 31 of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act when he was not deemed eligible to avail of the respondent's Voluntary Early Retirement Scheme which was based on employees having served for 35 years in the organisation.
2. BACKGROUND
2.1 The complainant commenced employment as a Technical Officer in the Department of Transport and Power on 2nd September, 1969 at the age of 29. He transferred into the respondent organisation on the vesting of that body on 1st January, 1994 and his grade was subsequently titled Engineer. As a result of the transfer the complainant did not break his service. The respondent advertised a Voluntary Early Retirement Scheme and set the qualifying criteria as 35 years service to the organisation. The complainant had in excess of 34 years service but not 35 years and was 63 years old at the time the Scheme was advertised. It is his contention that the respondent discriminated against him by not setting age as opposed to length of service as the qualifying criteria. The respondent has denied that allegation that it discriminated against the complainant on the grounds of age.
2.2 Consequently the complainant referred a complaint under Section 7 of the Employment Equality Act, 1998 to the Director of Equality Investigations on 29th October, 2003. In accordance with her powers under Section 75 of that Act the Director then delegated the claim to Gerardine Coyle, Equality Officer on 26th January, 2004 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A joint hearing took place on 14th September, 2004.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant states that the respondent proposed a voluntary early retirement scheme on 26th August, 2003. Applications had to be made by 19th September, 2003. According to the complainant staff with 35 years pensionable service at 31st October, 2003 could avail of the scheme. The complainant notes that up until now voluntary early retirement schemes invited applications from people over a certain age but on this occasion age was not stated as it was thought to be discriminatory. It is the complainant's submission that the scheme, because of its requirement of 35 years pensionable service, prevents him (who is close to retirement age) from availing of the package. The complainant notes that younger men are able to take full advantage of this offer because they carry with them years of service gained in the Irish Army or the Post Office where they were able to join these bodies at a young age. The complainant alleges that this is indirectly discriminatory.
3.2 The complainant states that people (like him) who entered the service from outside agencies e.g. USA or UK with the training and experience required for entry at that time were not allowed any credit for the years spent obtaining the experience. These officers, the complainant says, are unable to avail of this voluntary early redundancy scheme because they could not reach the age of 35 years pensionable service in October, 2003. The complainant says that he had 34 years pensionable service in October, 2003 and is therefore excluded from the offer. According to the complainant Air Traffic Controllers who are recruited from school are able to meet the 35 pensionable service requirement. Engineers who entered the service from the Irish Army or the Post Office were credited with pensionable years service thus placing them in an advantaged position to avail of the voluntary early retirement scheme. By contrast people who are closer to retirement age are excluded from making an application by the 35 years pensionable service requirement.
3.3 The complainant notes that there is in existence in the respondent organisation a voluntary early retirement scheme which is open to officers over 57 years of age and says that this does not appear to be a problem here. The complainant names another organisation which he says has offered a retirement scheme to employees over 50 years of age. According to the complainant by not specifying age as a requirement to qualify for this voluntary early retirement scheme the respondent has discriminated against him because he could not gain the required number of pensionable years service specified due to the entry requirements of experience required when he joined the Department of Transport and Power. The complainant notes that staff about to retire at the full retirement age with 35 years pensionable service before 31st October, 2003 were able to avail of the scheme and therefore he states that closeness to retirement does not appear to be an issue.
3.4 The complainant states that this exclusion on the grounds of pensionable years service would further discriminate against him had he taken up an offer of technical assistant to ICAO some years back. Furthermore it would discriminate against women who have taken time out on extended maternity leave thus reducing their pensionable years and this discrimination comes intoplay in job-sharing schemes. According to the complainant mature officers who have recently joined the service fully qualified would never reach the required number of years of pensionable service to avail of any voluntary early retirement scheme like this in the future.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent notes that the complainant, an engineer in the respondent organisation, contends that the service requirement in the respondent's voluntary early retirement scheme as advertised on 26th August, 2003 under Office Notice 10/2003 discriminates against some older engineers like himself and while some younger staff could qualify, older staff could not. The respondent states that at the closing date for receipt of applications for voluntary early retirement (19th September, 2003) the complainant did not meet the condition of 35 years service at 31st October, 2003.
4.2 The respondent states that the complainant was recruited as a Technical Officer in the Department of Transport and Power on 2nd September, 1969 at 29 years of age. He transferred to the respondent organisation on the vesting of that body on 1st January, 1994. His grade was subsequently retitled Engineer. According to the respondent the transfer of staff to the respondent organisation did not break their service. In August, 2003 the respondent introduced a voluntary early retirement scheme designed to reduce employee numbers and as a consequence costs. A voluntary severance scheme was offered to those staff with 30 to 35 years service and for those staff with less than 30 years service. The respondent notes that the complainant met the qualifying criteria for voluntary severance but did not apply for release under the scheme.
4.3 The respondent rejects the complainant's allegations and states that no discrimination (direct or indirect) has taken place. The respondent notes that the youngest successful candidate from the same competition as the complainant was recruited at 21 year of age. This candidate could not meet the service requirements for voluntary early retirement, not because of his age but simply due to the date of recruitment. In any event the respondent is satisfied that the technical requirements for the post could have been met at the age of 19. The respondent says that the fact that the complainant did not enter into employment with the Department of Transport and Power until he was 29 year old was a personal matter. The respondent states that it is likely that he would have been eligible to sit the 1968 and earlier competitions for Technical Officers and if successful, at that stage, he would have qualified for voluntary early retirement - age not being an issue. The respondent states that it has no evidence that the complainant did compete for earlier competitions.
4.4 The respondent states that the complainant's suggestion that Air Traffic Controllers recruited from school could meet the service requirements is incorrect as a serving Air Traffic Controller recruited at the same time as the complainant in May, 1969 could not meet the 35 years service criterion at 19th September, 2003 irrespective of age. According to the respondent it is a fact that the 35 years service requirement could be met by some staff and could not be met by others. The simple criterion was the date of entry and not the age of the staff member at the date of recruitment.
4.5 The respondent states that the transfer of service from outside the current employment for pension purposes is accommodated under its pension scheme arrangements (and was similarly accommodated under the Civil Service pension scheme in 1969) and has no regard to the age of the person transferring service. According to the respondent there is no record of attempts by the complainant to transfer service into the Department of Transport and Power or the respondent organisation. On this basis the respondent states that it must be assumed that the complainant's previous service was not transferable under the transfer of service arrangements.
4.6 It is the respondent's submission that the complainant is incorrect in stating that there is a voluntary early retirement scheme within its organisation open to staff aged 57 years and over. The respondent states that it operated a voluntary early retirement scheme principally for Engineers which provided for early retirement for those at 50 years of age and over. This scheme was withdrawn. When the scheme was in place the complainant was asked on 20th November, 2002 to indicate by 5th December, 2002 if he was interested in it or to give a definitive commitment that he wished to avail of it and to specify the date on which he wished to retire. It is the respondent's submission that the complainant did not respond and was, therefore, not considered for voluntary early retirement. On 4th February, 2003 he did respond stating that he would avail of voluntary early retirement in January, 2004. This was considered a late application and the complainant was advised that there was an oversubscription and those who had met the deadline of 5th December, 2002 would take precedence over late applicants. The respondent states that there were no additions to the number to be released under that scheme.
4.7 In conclusion the respondent asks the Equality Officer to reject the complainant's complaint on the grounds that the voluntary early retirement scheme does not discriminate against him on the grounds of age and the entry requirements for Technical Officers did not discriminate against him as he could have joined the Department of Transport and Power earlier than 1969 thereby giving him 35 years service in 2003.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision in this claim is whether or not the respondent directly or indirectly discriminated against the complainant on the grounds of age within the meaning of Sections 6(1), 6(2)(f) and 31 of the Employment Equality Act, 1998 when it introduced a voluntary early retirement scheme citing 35 years pensionable service as a requirement. In making my decision in this claim I have taken into account all of the information, both written and oral, made to me by the parties.
5.2 The complainant alleges that he was discriminated against by the respondent on the grounds of his age when the Voluntary Early Retirement Scheme was offered to employees on the basis of service as opposed to their age. Employees wishing to avail of the Voluntary Early Retirement Scheme were required to have 35 years service. The complainant had in excess of 34 years service but he did not have the required 35 years service. He stated that the reason he did not have the required service was because he required certain qualifications and experience before he could apply for a position as Engineer. However other colleagues (who were not engineers) were able to commence employment with the respondent organisation at a much earlier age because they did not require these qualifications and experience. Hence other employees who were younger than him were able to avail of the Voluntary Early Retirement Scheme whereas he was not and the complainant contends that this was discriminatory. In terms of his allegation of victimisation the complainant withdrew this at the hearing.
5.3 The respondent denies that it discriminated against the complainant on the grounds of age when it set the criteria for availing of the Voluntary Early Retirement Scheme as length of service as opposed to age. The respondent noted that the criteria was based on pensionable service and pensions relate to the amount of service. For example a person who has served for 20 years will receive a lower pension than a person who has served for 30 years. In relation to the complainant's contention the respondent notes that staff join the organisation at all ages. Air Traffic Controllers tend to join the organisation at a younger age and receive on-the-job training whereas professional people e.g. accountants, marketing professionals, etc. join the organisation after obtaining relevant qualifications and experience. According to the respondent joining the organisation at the age of 28 or 29 years is not unique to engineers. The respondent notes that the eligibility for the Voluntary Early Retirement Scheme related to the time the employee joined the organisation and it noted that, while the complainant did not qualify for the Scheme, other engineers did so qualify.
5.4 I note that it is the complainant's position that the respondent should have offered the Voluntary Early Retirement Scheme on the basis of 35 years service and/or to persons having reached the age of 57 years. Had the respondent advertised its Voluntary Early Retirement Scheme on this basis it was open to an allegation of discrimination on the grounds of age under the Employment Equality Act, 1998. A person who did not qualify on service and was under the age of 57 could argue that he/she was discriminated against in relation to a colleague who also did not meet the service requirement but who was over the age of 57 and could avail of the Scheme. Under the provisions of the Employment Equality Act, 1998 it is discriminatory to treat a person less favourably than another where they are of different ages.
5.5 The next issue to address is whether or not it is indirectly discriminatory on the age ground to make access to a Voluntary Early Retirement Scheme conditional on having 35 years service. To establish a prima facie case of indirect discrimination in accordance with the provisions of Section 31 of the Employment Equality Act, 1998 the complainant must produce sufficient evidence to conclude that requiring employees to have at least 35 years service before they can access the Voluntary Early Retirement Scheme is a criterion which "in practice can be complied with by a substantially smaller proportion" of employees his age than of employees of a different age. I note that the complainant did not produce any such statistical evidence.
5.6 In the absence of meaningful statistical evidence the Labour Court in the case of NBK Designs Limited v Marie Inoue2 held:
"It would be alien to the ethos of this Court to oblige parties to undertake the inconvenience and expense involved in producing elaborate statistical evidence to prove matters which are obvious to the members of this Court by drawing on their knowledge and
experience. Whilst there are many cases in which the unequal effect of a provision can be seriously put in issue and the true position can only be established by elaborate statistical evidence, the Court is satisfied that this is not such a case."
In this case I am not satisfied that, in the absence of meaningful statistics, it is clear that the criterion of 35 years service particularly disadvantages the complainant and people of his age (i.e. 63 years old) at the time the Voluntary Early Retirement Scheme was advertised. I am, therefore, satisfied that the complainant has failed to establish a prima facie claim of indirect discrimination on the grounds of age.
5.7 In conclusion I am satisfied that the criteria adopted by the respondent of length of service in relation to its Voluntary Early Retirement Scheme was not directly or indirectly discriminatory under the provisions of the Employment Equality Act, 1998.
5.8 The complainant, in his submission, argued that he should have received credit for the years he spent gaining experience which enabled him to apply for this job. He noted that younger employees were able to avail of the Scheme because they carried with them years of service gained in the Irish Army or in the Post Office. The respondent has noted that there was no evidence of the complainant having attempted to transfer service into the Department of Transport and Power or the respondent organisation. Hence the respondent assumes that his previous service was not transferable under the transfer of service arrangements. I find that the respondent cannot be held to be accountable where the complainant could not transfer service.
6. DECISION
6.1 In view of the foregoing I find that the Irish Aviation Authority did not discriminate against Mr. Sean Reilly on the grounds of age in terms of Sections 6 and 31 of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act when he was not deemed eligible to avail of the Voluntary Early Retirement Scheme based on his length of service with the respondent organisation.
______________________
Gerardine Coyle
Equality Officer
7th October, 2004
2 Labour Court Determination - EED0212 - 25th November, 2002