Mc Carthy
(represented by Rachel O' Flynn B.L. instructed by Ken Murray & Company Solicitors)
-v-
Calor Teoranta
(represented by IBEC)
1. CLAIM
1.1 The case concerns a claim by Mr. Michael Mc Carthy that Calor Teoranta directly discriminated against him on the age grounds in terms of section 6(2)(f) of the Employment Equality Acts 1998 and 2004 contrary to sections 8 of the Acts in relation to his compulsory retirement.
2. BACKGROUND
2.1 The complainant claims that he was forced to retire on reaching his 60th birthday when colleagues were permitted to continue working until their 65th birthday. The respondent submits that it reduced the normal retirement age from 65 to 60 in 1987 and that a number of the complainant's colleagues remained in employment to their 65th birthday through administrative error. The respondent denies that the complainant was discriminated against on the age ground.
2.2 The complainant referred a complaint under the Employment Equality Acts 1998 and 2004 to the Director of the Equality Tribunal on 23 December 2004. On 20 June 2006, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A submission was received from the complainant on 4 August 2006 and from the respondent on 18 September 2006. A joint hearing of the claim was held on 18 June 2007. Correspondence in relation to the claim concluded on 31 August 2007.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant was retired compulsorily on 31 December 2004. He submits that there was a breach of equality with respect to his employment in relation to other employees carrying on similar occupations in Whitegate who were allowed to work until they reached the age of 65 years and also in a similar gas bottling facility operated by the respondent in Dublin where employees are allowed to work until the age of 65. It is also the case that if a security post is available, they are allowed to work until the age of 70 years plus.
3.2 The complainant commenced work as a lorry helper at the Middleton depot and then progressed to be a charge hand at the Gas Filling Plant which was relocated from Middleton to Whitegate. The complainant submits that in July 1994, he took redundancy. The terms of the redundancy included that he would be reemployed on a casual basis and could work as long as the job was open. As a senior casual, he was given priority for work. In effect, the redundancy was a buyout by Calor Kosangas in respect of bonuses, service pay etc and at the end of one working week, his status changed from being an employee of the company and on the following week, he was a casual doing exactly the same work. He submits that an implicit term of the redundancy package was that casuals, who were formerly full time employees, could work until the age of 65.
3.3 The complainant submits that the precedent of working until the age of 65 was honoured locally in Whitegate in the cases of Mr. F, Mr. A, Mr. B, Mr. O' L and Mr. C. He submits that he first discovered that the agreement would not be honoured when a colleague, Mr. O' L who was working on exactly the same basis as he was after taking redundancy received a letter from management indicating that an error had been made and that he should not have been employed past his 60th birthday. He submits that a work practice exists in the gas filling plant in Dublin port whereby casuals who are formerly full time employees who took redundancy are allowed to work until they attain the age of 65 years and in certain cases if a vacancy arises in security, are allowed to work until 70 years of age subject to health conditions being satisfied.
3.4 The complainant submits that he is being discriminated against on the grounds of age on the basis that he is available and capable of doing work between the ages of 60 and 65 years where local and national precedent and work practice allowed other people with the same employment history in the company to work on a casual basis for the respondent until they reach the age of 65 years.
4. SUMMARY OF THE RESPONDENT'S SUIBMISSION
4.1 The respondent refutes the complainant's suggestion that he was discriminated against on the basis of age.
4.2 In 1987 at the request of the complainant's Union SIPTU, the company reduced the normal retirement from age 65 to 60. Existing employees were given the option to retire at 60 or maintain their previous retirement age of 65. The complainant opted at the time to retire at 60.
4.3 All new employees appointed since 1987 were recruited on the basis of retiring at 60. When the complainant took redundancy in 1994, there was no term either implicit or explicit suggesting that he could remain until aged 65 years. The respondent accepts that there are some exceptions to the norm of retiring at 60. These include individuals who were employed prior to 1987 and did not exercise the opinion to retire at 60 and a limited number of other groups who have arrangements ring fenced to named individuals. The anomalies will all disappear in the fullness of time.
4.4 The respondent also accepts that certain peers of the complainant remained in employment until the age of 65. This happened through administrative error. Once discovered, the error was corrected and the policy of retirement at age 60 was applied to the whole group equally and without any discrimination since then. The complainant acting as a shop steward was a signatory to an agreement in May 2002 confirming that the normal retirement age continues to be 60.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainant alleges that the respondent directly discriminated against him on the age ground in relation to his retirement. I will therefore consider whether the respondent directly discriminated against the complainant on the age ground in terms of section 6(2)(f) of the Employment Equality Acts 1998 and 2004 and in contravention of section 8 of the Acts. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
Direct discrimination on the age ground
5.2 Section 6(1) of the Employment Equality Acts 1998 - 2004 provides that:
...... 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 of the grounds specified in subsection (2) (in this Act referred to as 'the discriminatory grounds'
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(f) that they are of different ages, ...... (in this Act referred to as "the age ground"),
5.3 The respondent submitted that the alleged discriminatory act had not occurred at the time that the complainant referred his complaint to the Tribunal and that the respondent has no case to answer. The complainant referred a complaint of discrimination to the Tribunal on 23 December 2004 in relation to "being forced to retire" on reaching his 60th birthday. On 13 October 2004, the complainant was advised by letter that the retirement age was 60 and that he would reach that age on 1 January 2005. That letter outlines how the complainant would be treated on reaching his 60th birthday and following receipt of the letter, the complainant referred a complaint to the Tribunal and in the circumstances, I consider that I have jurisdiction to investigate the complaint.
5.4 On 18 November 1987, the complainant signed a document authorising deductions from his salary in respect of pension contributions which acknowledged that from 1 April 1991, the normal retirement age was age 60. At the hearing, he submitted that whilst he accepted that he signed the document in 1987, he signed it with the intention of working until 60 and retiring on full pension at that stage. He submitted that he took redundancy in 1994 and returned to work as a 'casual worker'. He submits that following redundancy and re-employment on a casual basis, he believed that he could work until 65 years of age. The complainant submitted that at the time that he elected for the voluntary redundancy scheme, he was advised and given to understand that retirement age would remain at 65 and that he "relied on this promise and inducement." The complainant was first advised of the new retirement age in 1987 and he signed a letter consenting to revised pension contributions arising from the earlier compulsory retirement age. He then took voluntary redundancy in 1994 and he submitted that he was given to "understand that he could continue to work to age 65 in 1994 and in 2002." Based on the oral evidence given at hearing by the complainant and a number of his colleagues, it appears that there was a general belief that the retirement age was 65. However, no evidence was adduced to substantiate the statement that the respondent made such a representation to the complainant.
5.5 The complainant in his capacity as shop steward was signatory to a letter dated 10 May 2002 dealing with a number of issues including holidays, sick pay scheme, death cover and VHI contributions for casual staff. The letter states:
"The company has announced the following for the casual production staff in Whitegate. .... The normal retirement age will continue to be 60 but the participants in the Defined Contribution scheme may opt with the company's agreement to stay until 65....."
I was informed by the respondent that the statement in relation to retirement was made in recognition of the fact that with the new retirement age, people might not have enough time in employment to build up a better pension and a deviation from the normal retirement age was therefore possible for those in the Defined Contribution Scheme. At the hearing, I sought to clarify whether the complainant was in the Defined Contribution Scheme. The respondent subsequently confirmed that the complainant was a member of the Defined Contribution Scheme. It submitted, however, that the complainant was not allowed to continue to work beyond the age of 60 years as that was the normal retirement age and while the company did have the discretion to allow a person to work beyond that age, that would only apply if the skills of the person were required in the company and could not be replaced by simply increasing the hours of existing employees. It submitted that there would have been no need to keep the complainant in employment as there were other employees employed in the same capacity who would simply have increased their hours. It appears to be the case therefore that even if the complainant considered that the latter retirement age was applicable to him arising from the change in his employment status from permanent to causal in 1994, the letter of May 2002 which was signed by him should have clarified the matter or at least alerted him to the revised retirement age.
5.6 The complainant refers to a number of co-workers who were permitted to continue working until they reached 65 years of age. The respondent submitted that there were varying reasons for people being permitted to work until their 65th birthday. In any case, section 34 of the Employment Equality Acts 1998 and 2004 provides for savings and exceptions related to the family, age or disability. Specifically, section 34(4) 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.
It is therefore the case that it is not discrimination on the age ground to fix different ages for the compulsory retirement of employees and in the circumstances, I find that the respondent did not discriminate against the complainant on the age ground in relation to his compulsory retirement.
Dismissal
5.7 The complainant also alleged that the termination of his employment was a discriminatory dismissal and submitted that the sole reason for the termination of his employment was his reaching 60 years of age. The Equality Acts afford protection against dismissal on any of the discriminatory grounds and an employer must offer or afford to an employee the same treatment in relation to dismissals as the employer offers or affords to another person where the circumstances in which both persons are employed are not materially different - section 8(6)(c) In all cases of discriminatory treatment, the burden of proof is initially on the complainant. The Labour Court stated in a case concerning discrimination on the age ground in relation to access to employment.
It is accepted that if the claimants make out a prima facie case of discrimination the burden of proving the absence of discrimination shifts to the respondent. The appropriate test for determining if that burden has shifted is that formulated by this court in Mitchell v Southern Health Board [2001] E.L.R. 201. This test places the initial burden on the claimant to establish as a matter of probability, the primary facts upon which they rely. If those facts are proved on that standard, and if they are considered as having sufficient significance to raise a presumption of discrimination, the burden of proving that the principle of equal treatment has not been infringed rests on the respondent1.
Whilst the complainant's employment was terminated by the respondent, it was terminated by reason of retirement. The letter of 10 May 2002 clearly stated the normal retirement age for casual staff and my finding in relation to the compulsory retirement of the complainant is set out at paragraph 5.6 above. Furthermore, I do not find that there is any basis for issuing a direction under section 101(2)(b) to refer a claim under the Unfair Dismissals legislation as requested by the complainant.
6. DECISION
6.1 On the basis of the foregoing, in accordance with section 34(3) of the Employment Equality Acts 1998 and 2004, I find that it did not amount to discrimination by the respondent on the age ground to fix different ages for the retirement of employees. I find, therefore, that the respondent did not discriminate against the complainant on the age ground in relation to his compulsory retirement.
__________________
Mary Rogerson
Equality Officer
12 September 2007
1. Nevins, Murphy, Flood v. Portroe Stevedores EDA051 [2005] 16 E.L.R. 282