The Equality Tribunal
Employment Equality Acts
Decision DEC-E2011-257
PARTIES
Leo McPhillips
(Represented by Ciarán McPhillips)
- V -
Monaghan County Council
(Represented by the Local Government Management Services Board)
File reference: EE/2009/286
Date of issue: 22 December 2011
Keywords - Employment Equality Acts - Discriminatory Treatment - Age - Retirement Age - Framework directive - objective justification
1. DISPUTE
1.1 This dispute concerns a claim by Mr Leo McPhillips that he was subjected to discriminatory treatment by the respondent on the grounds of age in terms of section 6(2) of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 6 May 2009 under the Acts. On 23 September 2011, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 16 December 2011. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S SUBMISSION
2.1 The complainant submitted that he was employed by the respondent as a retained firefighter and that he was obliged to retire when he reached his 58th birthday.
2.2 The complainant submitted that he considers this to be discrimination on the age ground, particularly given the fact that he worked with firefighters from north of the border who are allowed to continue in their duties until the age of 65.
3. SUMMARY OF THE RESPONDENT'S SUBMISSION
3.1 The respondent submitted that the complainant was employed by it as a Retained Firefighter from 24 October 2001 until he reached his 58th birthday when he was obliged to retire.
3.2 The respondent submitted that the issue of retirement must be examined in conjunction with the implementation of retirement ages for retained firefighters on a national basis. In that regard, it noted that the issue of the retirement age and the associated gratuity were the subject of a referral to the Labour Court and the court recommended that "the need to maintain a blanket retirement age of 55 from a health and safety perspective should be objectively assessed by the parties with the assistance of suitable experts". The Expert Group met and reached a number of conclusions inter alia that it was essential that there should be a specific retirement age for all firefighters and that the normal retirement age of 55 would remain, however retained firefighters would have the option, subject of a compulsory medical assessment, of an extension to a maximum age of 58 years.
3.3 The respondent submitted that the complainant was advised of this and availed of the opportunity to extend his retirement three times over the three years between his 55th and 58th birthday.
3.4 The respondent submitted that the mere fact that the complainant was required to retire having reached the normal retirement age for his category of employment does not of itself substantiate a case of discrimination by the respondent on the basis of age.
3.5 The respondent submits that the State is entitled as a matter of European Law to have differing retirement ages to those that apply in Northern Ireland and that the difference between the retirement ages in one jurisdiction compared to another does not in itself constitute discrimination.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent discriminated against Mr. McPhillips on grounds of age, in terms of section 6 of the Acts and contrary to section 8 of those Acts.
4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. 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.
4.3 The facts of this case are not in dispute amongst the parties, that the complainant was employed as a retained firefighter, that he passed all his medical assessments and was retained in employment until his 58th birthday and that the respondent followed the procedures laid down by the Expert Group.
4.4 The respondent stated that there are genuine operational reasons for the mandatory retirement age of 58 in that the job is physically demanding and the council has a duty to maintain the operation capacity of its emergency service. The respondent stated that the physical capacity of a person required for fighting fires diminishes from about 50 years onwards and that it is guided in this by the report of the Expert Group, a copy of which was submitted to the Tribunal.
4.5 The respondent stated that its rationale was justified, that its stance reflected a genuine and determining occupational need, and that this issue was considered in the recent decision of the European Court of Justice in January 2010 in the Wolf case (C-229/08), which deals with similar matters (although from the standpoint of a maximum recruitment age).
4.6 The European Court of Justice in Wolf v Stadt Frankfurt am Main (C-229/08) stated, inter alia that:
38 In this respect, it must be pointed out that the professional fire service forms part of the emergency services. Recital 18 in the preamble to the Directive states that the Directive does not require those services to recruit persons who do not have the required capacity to carry out the range of functions that they may be called upon to perform with regard to the legitimate objective of preserving the operational capacity of those services.
39 It is thus apparent that the concern to ensure the operational capacity and proper functioning of the professional fire service constitutes a legitimate objective within the meaning of Article 4(1) of the Directive.
40 As regards, second, the genuine and determining occupational requirement for the activities of the fire service or for carrying them out, it follows from the uncontradicted information provided by the German Government that persons in the intermediate career of the fire service perform tasks of professional firefighters on the ground. In contrast to the management duties of persons in the higher careers of the fire service, the activities of persons in the intermediate career are characterised by their physical nature. Those persons take part in fighting fires, rescuing persons, environment protection tasks, helping animals and dealing with dangerous animals, as well as supporting tasks such as the maintenance and control of protective equipment and vehicles. It follows that the possession of especially high physical capacities may be regarded as a genuine and determining occupational requirement within the meaning of Article 4(1) of the Directive for carrying on the occupation of a person in the intermediate career of the fire service.
4.7 In the foregoing case the Court held that "that the possession of especially high physical capacities may be regarded as a genuine and determining occupational requirement within the meaning of Article 4(1) of the Directive." The respondent in the instant case put forward a similar argument. The complainant did not challenge the respondent's assertions that the retained firefighter position is such that it requires a high level of physical capacity and that, on a general basis, this standard of capacity diminishes with age.
4.8 Article 4(1) of the Directive is transposed into Irish law by section 37(2) of the Employment Equality Acts, 1998-2007. Section 37(2) of the Acts states that
(2) For the purposes of this Part a difference of treatment which is based on a characteristic related to any of the discriminatory grounds (except the gender ground) shall not constitute discrimination where, by reason of the particular occupational activities concerned or of the context in which they are carried out --
(a) the characteristic constitutes a genuine and determining occupational requirement, and
(b) the objective is legitimate and the requirement proportionate.
4.9 In light of the foregoing I find that the respondent is entitled to rely on the exemption at that provision. In addition, as the fire service falls within the scope of the State's emergency services, the respondent is also entitled to rely on section 37(3) of the Acts also. This section states that
(3) It is an occupational requirement for employment in the Garda Síochana, prison service or any emergency service that persons employed therein are fully competent and available to undertake, and fully capable of undertaking, the range of functions that they may be called upon to perform so that the operational capacity of the Garda Síochana or the service concerned may be preserved.
4.10 Having regard to the foregoing, I am satisfied that the complainant is not entitled to succeed in this complaint.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that the complainant is not entitled to succeed in his complaint and this complaint fails.
Conor Stokes
Equality Officer
22 December 2011