Equality Officer's Decision No: DEC-E/2011/142
Parties
Saunders
And
CHC Ireland Ltd.
(Represented by IBEC)
File No: EE/2008/356
Date of issue: 19 July, 2011
Headnotes: Employment Equality Acts 1998- 2008 - sections 6,8 & 34 -age -retirement age - Framework Directive - objective justification
1. DISPUTE
This dispute involves a claim by Mr. Robert Saunders that he was discriminated against by CHC Ireland Ltd. ("the respondent") on grounds of age, in terms of section 6(2) of the Employment Equality Acts, 1998-2007 and contrary to section 8 of those Acts when it required him to retire from employment on reaching the age of fifty- five years. The respondent rejects the complainant's allegations that it dismissed him in circumstances amounting to discrimination stating that the operation of retirement ages is permitted under section 34(4) of the Acts.
2. BACKGROUND
2.1 The complainant commenced employment with the respondent as a Winchman/Winch Operator at the respondent's base in Sligo on 1 March, 2005. He states that he signed a contract of employment at that time which provided that he retire from his employment at 55 years' of age. The respondent terminated the complainant's employment with it on 22 August, 2008 in accordance with this provision. The complainant contends that this constitutes less favourable treatment of him on grounds of age as other employees of the respondent, both in Ireland and in the UK, are permitted to work beyond the age of fifty-five years. The respondent accepts that it terminated the complainant's employment on him reaching the age of fifty-five years but states that section 34(4) of the Acts permits the application of compulsory retirement ages and exempts such treatment from the ambit of age discrimination.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998- 2007 to the Equality Tribunal on 29 May, 2008. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 8 July, 2010 - the date the complaint was delegated to me. Submissions were received from both parties and a Hearing on the matter took place on 18 October, 2010. A number of points arose which required further clarification and this gave rise to correspondence between the parties and the Equality Officer.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that he commenced employment with the respondent as a Winchman/Winch Operator on 1 March, 2005. He adds that he had over twenty years' experience of Search and Rescue (SAR) in the Royal Navy and was offered the position by the respondent in 2005 following interview. The complainant further states that he signed a contract of employment with the respondent which contained a provision requiring him to retire at the age of fifty-five years. The complainant adds that the respondent terminated his employment with effect from 22 August, 2008 on him reaching the age of fifty-five years. He submits that this constitutes discriminatory dismissal of him on grounds of age contrary to the Acts. In support of this assertion that complainant states that helicopter pilots with the respondent are not required to retire until they reach the age of fifty-eight years. He adds that there are several employees over fifty-five years at his level who are permitted to work in the respondent's UK operations.
3.2 The complainant states that he performed the range of duties associated with the post during his period of employment. He adds that he was not fully qualified as a Winch Operator and he was not therefore able to perform the full range of duties attached to that element of the job. He states that he therefore spent the majority of the time as a Winchman - that is hanging from the helicopter from the wire. He accepts that this role is a physically demanding one and that risks exist to the Winchman in the course of a rescue operation. The complainant states that he considered himself to be physically and mentally capable for the job and the respondent made no such assessment of him in advance of terminating his employment. He rejects the respondent's assertion that he had a high level of absenteeism during his employment - stating that his "grounding" in February/March, 2007 following his compulsory annual medical check-up where an irregularity in his heart function was detected, was subsequently found to be erroneous and due to a machine malfunction. The complainant states that the respondent operates a process whereby retired staff can apply to return to "fresh employment" until the age of fifty-eight years and he applied for this employment but was unsuccessful.
SUMMARY OF RESPONDENT'S CASE
4.1 The respondent provides the Helicopter SAR service to the Irish Coast Guard on a contract basis. It rejects the complainant's allegation of discriminatory dismissal. It states that the complainant's contract of employment contains an express provision that the complainant is required to retire at fifty-five years' of age. It submits therefore that the complainant had no legitimate expectation to remain in employment after that time. It states that the retirement age of Winchmen/Winch Operators recruited in Ireland has always been 55 years' of age, adding that at the date of the complainant's retirement there were thirty-three employees at that grade in the company and all were subject to this contractual retirement age, without exception. The respondent states that it took over the SAR contract to the Irish Coast Guard from the previous operator (Bond Helicopters) in 2001 under a transfer of undertakings as defined in the European Communities (Protection of Employees upon Transfer of Undertakings) Regulations, 2003 and as such the terms and conditions of those employees, including the retirement age of 55 for Winchmen/Winch Operators, were maintained.
4.2 The respondent states that Winchmen/Winch Operators employed by it are required to undertake both roles attached to the post - (i) Winchman: who descends on the hoist to recover the casualty and thereafter are the primary medical care provider to the casualty and (ii) Winch Operator : who remains inside the helicopter during missions and, inter alia, guides the pilot over cliffs, mountains and vessels at sea in order to deliver a Winchman to a casualty and recover both back to the aircraft safely by operating the winch. It adds that the complainant was not fully trained as a Winch Operator and therefore was not permitted to operate the winch in certain circumstances, adding that he operated mostly as a Winchman. The respondent accepts that at the time of the complainant's retirement there were seven employees in the UK operation over the age of fifty-five. The respondent states that (i) all of these employees are Winch Operators only and are therefore materially different to the complainant and (ii) these employees had been employed by the previous holder of the relevant SAR contract in the UK (Bristows) and the contractual retirement age for them was fifty-eight years. It adds that Bristows had made a number of exceptions to that retirement age and allowed those employees to continue until the UK State retirement age - sixty-five years - on the basis that they were operating as Winch Operators only. The respondent adds that whilst there was no formal TUPE arrangements operated on the transfer of the UK contract to it, the respondent applied the spirit of the regulations and honoured the commitment given to employees by Bristows. It submits therefore that a comparison between the Irish and UK operations is not a valid one.
4.3 The respondent accepts that the retirement age for the helicopter pilots it employs is fifty-eight years. It adds that around 2004 it began to experience a shortage of trained helicopter pilots. It adds that the pilots' trade union (IALPA) approached the respondent and suggested that the retirement age for pilots should be increased from fifty-five years to fifty-eight years in an effort to address the problem by retaining highly skilled SAR pilots in the company. The respondent states that agreement was reached between it and IALPA to increase the retirement age for pilots in 2005. It adds that it engaged with the Winchmen/Winch Operators' trade union (IMPACT) during 2008/09 on a range of employment issues concerning the terms and conditions for those staff and the issue of increasing the retirement age was never mentioned. Consequently the fifty-five years requirement remained for those staff.
4.4 The respondent accepts that the complainant's contract of employment provides for the possibility of "fresh employment" of an employee post retirement, although it points out that this is at the discretion of the respondent's Managing Director. The respondent states that the arrangement was intended to cover new employment in a different ground based role - not in any operational capacity. It adds that the complainant's request for "fresh employment" could not be facilitated at the time because there were no suitable vacancies in the organisation. It adds that two other Winchmen/Winch Operators (details supplied) had also had requests for "fresh employment" rejected in the 9 months preceding the complainant's retirement.
4.5 The respondent states that the physical and psychological demands of the position of Winchman/Winch Operator are such that many of them do not continue in active employment until the age of fifty-five. It states that prior to the complainant's retirement, it had five Winchmen/Winch Operators who either reached the contractual retirement age or would have reached it had they not been placed on permanent health insurance. It further states that one of these employees was absent on six separate occasions (comprising twenty-two days) in the period immediately prior to his retirement. It adds that another has been on permanent health insurance from the age of fifty-three years and had a high rate of absenteeism between fifty to fifty-three years of age, including a single six month absence for a knee injury sustained at work. The respondent states that another (who was fifty-four at the date of the Hearing) has been absent on permanent health insurance with stress related illness since 2007. It adds that the complainant had eight days absence due to illness (over eight separate absences) in the two and a half year period before his retirement. In the course of the Hearing the respondent produced data which showed that the average rate of absence due to sick leave (during 2010) in respect of all Winchmen/Winch Operators was just over 4.5 days and the corresponding average for those in that role over fifty years of age was 8.25 days. It states that such a level of absence has significant impact on its ability to roster staff in accordance with regulations.
4.6 The respondent states that a compulsory retirement age of fifty-five applies to all Winchmen/Winch Operators employed by it in Ireland. It adds that the complainant's employment was terminated on him reaching that age. It submits that its actions in this regard do not constitute discrimination of the complainant by virtue of the exemption provided at section 34(4) of the Employment Equality Act, 1998-2007. The respondent further submits that this provision does not require it to objectively justify the retirement age operated. The respondent notes the approach of the Labour Court in McCarthy v Calor Teoranta wherein it reserved its position on whether or not section 34(4) of the Acts is compatible with EU Directive 2000/78/EC, noting the European Court of Justice (ECJ) judgement in Palacios de la Villa v Cortefiel Servicios SA that the operation of mandatory retirement ages may amount to age discrimination contrary to the Directive unless justified by reference to Article 6 of the Directive, on the basis that the Labour Court could decide the McCarthy case on other grounds. The respondent argues that this Tribunal cannot exceed its jurisdiction by in effect, rewriting section 34(4) of the Acts, by testing it by reference to Article 6 of the Directive and relies on the judgement of Charlton J in Minister for Justice, Equality and Law Reform v Equality Tribunal in this regard.
4.7 The respondent states, notwithstanding its argument in the preceding paragraph, that the application of a mandatory retirement age is reasonable and objectively justified in terms of EU Directive 2000/78/EC. It states that the setting of the retirement age was made by reference to the following aims - (i) to protect the health and safety of the Winchmen/Winch Operator, (ii) to protect the health and safety of the people who require rescue by the Winchmen/Winch Operator and (iii) to ensure the operational capacity and proper functioning of the professional SAR service. It further submits that these constitute legitimate aims within Article 6(1) of the Directive and that the means of achieving those aims - the setting of the retirement age at fifty-five years - is appropriate and necessary in terms of that Article. It states that given the nature of the duties which Winchmen/Winch Operators are required to perform on a regular basis, the physically demanding conditions under which those tasks are performed and the fact it has furnished evidence of a higher incidence of medical impairment of Winchmen/Winch Operators, it has demonstrated that the operation of a retirement age of fifty-five is objectively and reasonably justified. The respondent refers to the European Court of Justice judgement in Wolf v Stadt Frankfurt am Main where the Court accepted that a person's physical capacity to perform physically demanding tasks diminishes with age.
4.8 The respondent also submits that the possession of a high physical capacity is a genuine and determining occupational requirement for the role of Winchman/Winch Operator within the meaning of Article 4(1) of the Directive. It states that such employees are required to rescue people in highly dangerous and physically demanding situations and draws an analogy with personnel in the fire service who are called on to perform similar tasks. It refers to the judgement in Wolf v Stadt Frankfurt am Main where the ECJ held "that the possession of especially high physical capabilities 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 fire service.". The respondent states that the Court was satisfied in that case that the national legislation in question, which set a maximum recruitment age for fire-fighters, was justified by reference to Article 4(1) of the Directive as those employees would no longer have the physical capacity to perform fire-fighting duties after the age of forty-five years and rescue duties after the age of fifty. In particular the respondent notes that Court's acceptance (of the data advanced by the German Government in that case) that a person's "respiratory capacity, musculature and endurance diminish with age". The respondent states that it cannot compromise in any way on the health and safety of both the Winchman and the person being rescued and it must ensure that these factors are preserved.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issue for decision by me are whether or not the respondent dismissed the complainant in circumstances amounting to discrimination on grounds of age, in terms of section 6(2) of the Employment Equality Acts, 1998-2007 and contrary to section 8 of those Acts when it terminated his employment in August, 2008 when he reached the age of fifty-five years. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.
5.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires a complainant to establish, in the first instance, facts upon which s/he can rely in asserting that s/he suffered discriminatory treatment on the grounds specified. 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. If the complainant does not discharge the initial probative burden required his case cannot succeed. In Donnellan v The Minister for Justice, Equality and Law Reform & Others McKechnie J held that the termination of an employee's employment solely on reaching a particular age (in that case sixty years old) constituted direct discrimination on grounds of age contrary to the Acts. It follows therefore, in the instant case, that the complainant has discharged the initial burden of proof required and the respondent must therefore satisfy the Tribunal that there are factors which justify the treatment of the complainant.
5.3 The first argument advanced by the respondent is that it can rely on the exemption provided at section 34(4) of the Acts. The respondent is correct in its assertion that this provision does not place any statutory obligation on the respondent to objectively justify the operation of a mandatory retirement age for Winchmen/Winch Operators. It further argues that this Tribunal cannot exceed its jurisdiction by in effect, rewriting section 34(4) of the Acts, through testing it by reference to Article 6 of the Directive and relies on the judgement of Charlton J in Minister for Justice, Equality and Law Reform v Equality Tribunal in this regard. In Donnellan v The Minister for Justice, Equality and Law Reform& Others. McKechnie J stated, in looking at the regulations governing the application of compulsory retirement ages of senior members of an Garda Síochána, that "national measures relating to retirement ages are not excluded from consideration under Directive 2000/78/EC. Any discrimination with regards to age must, as put by that Directive, serve a legitimate aim or purpose and the means taken to achieve that purpose be appropriate.". I am satisfied that McKechnie J's comments are authority for the proposition that I can construe section 34(4) of the Acts in light of Article 6(1) Directive 2000/78/EC. Consequently, it falls to the respondent to satisfy me that the approach it adopted is "objectively and reasonably justified by a legitimate aim ... and the means of achieving that aim are appropriate and necessary".
5.4 The respondent states that the setting of the retirement age was made by reference to the following aims - (i) to protect the health and safety of the Winchmen/Winch Operator, (ii) to protect the health and safety of the people who require rescue by the Winchmen/Winch Operator and (iii) to ensure the operational capacity and proper functioning of the professional SAR service. It further submits that these constitute legitimate aims within Article 6(1) of the Directive and that the means of achieving those aims - the setting of the retirement age at fifty-five years - is appropriate and necessary in terms of that Article. The nature of the service provided by the respondent is the safe recovery/rescue of persons who find themselves in life threatening emergency situations at sea or on dangerous terrain, sometimes in the most challenging circumstances. In Ireland, it provides these services on behalf of the State. Having carefully considered the evidence submitted by the parties in the course of my investigation I am satisfied that the aims set out at (i)-(iii) above constitute legitimate aims in terms of Article 6 of the Directive.
5.5 However, the respondent must also satisfy the Tribunal that that the means of achieving those aims - the setting of the retirement age at fifty-five years - is appropriate and necessary in the circumstances. In the course of the Hearing the complainant confirmed that the range of duties submitted by the respondent as those required of Winchmen/Winch Operators accurately reflected the duties attached to the post. He also accepted that the role was a physically demanding one and that there was significant risk of injury. The respondent submitted details of Winchmen/Winch Operators who had experienced considerable absence from work between the ages of fifty and fifty-five years, much of which arose as a result of the job itself. The respondent submits, in essence, that a person's capacity to perform physically demanding aspects of his/her job diminishes with age and refers to the ECJ judgement in Wolf v Stadt Frankfurt am Main in this regard. That case involved the application of a maximum recruitment age for appointment to the Fire Service in Frankfurt and the Court held that the operation of the upper age limit was not precluded in the circumstances of that case. I note from that judgement that the Court accepted the data derived from research in the fields of industrial and sports medicine furnished by the German Government which indicated that a person's "respiratory capacity, musculature and endurance diminish with age". The Court further noted that the need for an employee in that Fire Service - who duties included the rescue of people in dangerous and physically demanding environments - to possess the full physical capability to carry on that role, was related to the age of the person concerned. In light of the foregoing I am satisfied that the operation of a mandatory retirement age of fifty-five years by the respondent is an appropriate and necessary response to achieve the aims set out above.
5.6 Whilst my finding in the preceding paragraph is sufficient to provide the respondent with a defence to the practice it adopts, in the interests of completeness I will address the second argument advanced by it - that the possession of a high physical capacity is a genuine and determining occupational requirement for the role of Winchman/Winch Operator within the meaning of Article 4(1) of the Directive. In Wolf v Stadt Frankfurt am Main the ECJ held "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.". I am satisfied that the nature of the tasks involved with the role of Winchman/Winch Operator with the respondent requires a high level of physical capacity and that this standard of capacity diminishes with age, as stated above. Article 4(1) of the Directive is transposed into Irish law by section 37(2) of the Employment Equality Acts, 1998-2007. In light of the foregoing I find that the respondent is entitled to rely on the exemption at that provision. Moreover, I am satisfied that the services provided by the respondent falls within the scope of the State's emergency services and it can rely on section 37(3) of the Acts also.
5.7 I also feel it necessary to address two other points raised by the complainant. The first of these is the failure of the respondent to offer him "fresh employment" when he requested same. The respondent furnished details of two employees in similar circumstances to the complainant at the base in Sligo who were treated in the same manner as him. I therefore find that the complainant was not treated less favourably on grounds of age on this issue. The second matter concerns the treatment by the respondent of helicopter pilots employed in Ireland and other employees engaged at the respondent's UK operation. Having carefully considered the evidence adduced by the parties I find that the circumstances surrounding the retirement age of the complainant and those of the other employees to be materially different and not a "comparable situation" as required by section 6 of the Acts. It follows therefore that the treatment of the complainant does not amount to discrimination contrary to the Employment Equality Acts, 1998-2007.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998 - 2008 I issue the following decision. I find that the respondent did not dismiss the complainant in circumstances amounting to discrimination on grounds of age, in terms of section 6(2) of the Employment Equality Acts, 1998-2007 and contrary to section 8 of those Acts when it terminated his employment in August, 2008 on him reaching the age of fifty-five years.
_______________________________________
Vivian Jackson
Equality Officer
19 July, 2011