Employment Equality Acts
Decision DEC-E2012-016
PARTIES
Peter Gallagher
(Represented by Michael Landers, IMPACT)
-V-
Ryanair Ltd.
(Represented by Martin Hayden, S.C.
instructed by O'Rourke Reid Law Firm)
File reference: EE/2009/224
Date of issue: 14 February 2012
Keywords - Employment Equality Acts - Discriminatory Treatment - Discriminaotry Dismissal - Age - Prima facie case
1. DISPUTE
1.1 This dispute concerns a claim by Mr Peter Gallagher that he was subjected to discriminatory treatment and discriminatory dismissal 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 April 2009 under the Acts. On 18 January 2012, in accordance with his powers under section 75 of the Acts, the Director 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 had been sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 27 January 2012. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. PRELIMINARY MATTERS
2.1 The respondent submitted that it wished to have a stenographer take a note of the proceedings and had engaged a firm of stenographers for that purpose. The Equality Officer considered this request and granted permission for a stenographer to take notes on condition that the provisions of Section 97 of the Acts were adhered to. In addition, the Equality Officer noted that, in the interests of fairness and natural justice, a copy of any such note should be made available to the complainant. The respondent agreed to make a copy available to the complainant on a shared cost basis, but the complainant declined this offer.
2.2 The respondent sought to have a number of further matters determined by way of a preliminary decision. Having considered submissions on these matters from both parties, the Equality Officer informed the parties that he would proceed to hear the evidence of the parties and to deal with any matters that were appropriate as preliminary matters within the context of issuing a final decision. The respondent submitted that under those conditions, it did not wish to have any further involvement in the hearing and, respectfully, would have to withdraw from the hearing of the complaint. As had been advised to the respondent, the Equality Officer then proceeded to hear the complainant's evidence in the absence of the respondent.
2.3 One issue upon which the respondent sought clarification was whether the complainant was in a position to pursue a complainant before the Tribunal given that the employment relationship had ended with the complainant's retirement. Section 77(5)(a) of the Acts provides that
"a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates."
In this instance the complainant is claiming that the act of retirement amounts to discrimination, and I note that his complainant was lodged within 6 months of the date of that retirement. Accordingly, I consider that the Tribunal is intra vires in proceeding to hear this complaint.
2.4 Another issue upon which the respondent sought clarification was whether the Tribunal would determine the applicability of Council Directive 2000/78/EC as a preliminary matter and issue a preliminary decision. This, it was submitted, would enable the respondent to tailor its defence to a particular set of circumstances.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant submitted that he was employed by the respondent as a pilot since 1990. The complainant further submitted that his contract of employment did not specify a normal retirement age, instead requiring him to hold and maintain a Commercial Pilot's Licence (CPL) in order to discharge his contractual duties.
3.2 The complainant submitted that until relatively recently, the CPL was only valid until a pilot reached age 60 but that the situation has now changed and the CPL can be renewed until the pilot reaches age 65.
3.3 The complainant submitted that he reached the age of 60 on 7 October 2008 and that he did not wish to retire and made this clear to the respondent both orally and in writing, however the respondent proceeded to terminate his employment, with effect from 7 October 2008.
3.4 The complainant submitted that he also offered to continue to work for the respondent in other than full-time capacity either directly or on a contract basis through Company X, a contracting organisation used by the respondent. The complainant further submitted that this was refused and that the respondent stated that "having considered your record and performance during your time with us (including your continuing litigation) we would not consider you as a suitable candidate for future employment in this airline".
3.5 The complainant submitted that the respondent's termination of his employment could not or would not have happened to a pilot aged less than 60 years and that this constitutes discrimination on the age ground. The complainant further submitted that 60 is not a mandatory retirement age for pilots in the respondent's employment and that at least 5 other pilots have continued in employment after age 60 either directly or through a contracting agency. The complainant also submitted that the respondent cannot rely on the exclusion contained in Section 34(4) of the Acts.
3.6 The complainant submitted that notwithstanding the foregoing, even if the respondent does have a mandatory retirement age of 60, Section 34(4) of the Acts must be interpreted so as to comply with article 6(1) of Council Directive 2000/78/EC which prohibits age discrimination save for appropriate and necessary means to achieve legitimate aims within the context of national law and that the imposition of a mandatory retirement age by the respondent cannot come within the scope of measures allowed by article 6(1) and is thereby unlawful.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent submitted that the complainant is a former retired former pilot who has been a serial litigant against the airline throughout the course of his employment.
4.2 The respondent submitted that at all times during the complainant's employment it was a term and condition of his employment that the retirement age for pilots was age 60. The respondent further submitted that this was clearly understood by the complainant, by the respondent and by all other pilots in the respondent's employment. The respondent also submitted that it heavily funds the pension scheme it operates on that basis.
4.3 The respondent submitted that during the course of his employment the complainant never stated that he did not wish to retire, either orally or in writing. This was despite having been notified of the date of his retirement on a number of occasions prior to that retirement.
4.4 The respondent submitted that the first indication it received of the complainant's wish to return to work was in a letter dated 25 November 2008 which was the same date as he signed the form of discharge confirming that he had received his tax free retirement lump sum.
4.5 The respondent submitted that by his actions, the complainant showed that he was at all times fully aware of his normal contractual retirement age, that he wished to retire as he was entitled to at the age of 60 and that he elected to receive a tax free lump sum together with a monthly pension commencing on his retirement date.
4.6 The respondent submitted that the complainant was inaccurate in referring to his offer to continue to work for it in a full time basis or on a contract basis though 'Company X' in that since he was already retired he could not continue in employment. His request to the respondent was to ask it to review the decision to retire him and reactivate his employment.
4.7 The respondent submitted that it had previously written to all of its pilots in September 2008 outlining a number of reasons, and notifying them that accordingly a pilot recruitment freeze had been implemented.
4.8 The respondent submitted that the complainant's assertion that 60 is not the mandatory retirement age for its pilots is false. All of the respondent's pilots who retire under its pension scheme in Ireland have an agreed retirement age of 60 and it makes substantial contributions to the Irish Pilots pension fund in order to meet these early retirement obligations. Without prejudice to the provisions of Section 34(4) of the 1998 Act, the respondent relies on the complainant's action over many years in the run up to his voluntary retirement at the age of 60 on 7 October 2008, which allowed the complainant to receive substantial tax free , lump sum retirement payments as well as monthly payments from its pilot pension scheme. The respondent further submitted that the complainant was not "forced" to retire as he falsely claims but retired as normal in accordance with his contract of employment and the rules of the pension shceme.
4.9 The respondent disputes the complainant's submission that section 34(4) of the Acts must be interpreted so as to comply with article 6(1) of Council directive 2000/78/EC.
4.10 The respondent submitted that the complainant's claim that there are no lawful grounds not related to age which it could have made the decision to terminate his employment is false and that the complainant is not entitled to redress under the Acts or otherwise.
5. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
Preliminary Issues
5.1 In relation to the request for a preliminary decision, I am informed by two decisions, one a High Court Decision (which was upheld by the Supreme Court, (unreported, March 20, 1990)), the second a decision of the Supreme Court itself.
5.2 In Aer Lingus v the Labour Court (unreported, Carroll J. February 26th 1988) the High Court was dealing with a similar jurisdictional objection. Carroll, J held, inter alia, that
It is not conducive to the speedy resolution of disputes if there has to be a multitude of separate decisions each of which is open to appeal to the High Court on a point of law and then to the Supreme Court. I refer to the dictum of Lord Pearson in Pearlberg v Varty [1972] 2 All ER 6 at p.17.
"Fairness however does not necessarily require a plurality of hearings or representations and counter-representations. If there were too much elaboration of procedural safeguards nothing could be done simply and quickly and cheaply."
5.3 In the decision of B.T.F. and the Director of Public Prosecutions [2005] IESC 37 Hardiman J states, inter alia, that
Preliminary issue.
In the present case the question of the applicant's delay was considered as a preliminary issue, and therefore (as the quotation above from the judgment of the learned trial judge makes clear) in isolation. It is often a difficult and delicate decision as to whether to try a particular issue as a preliminary matter. In a case where a point is raised which in and of itself and without regard to anything else may terminate the whole proceedings, clearly a strong case can be made for its trial as a preliminary issue. The classic example is where the statute of limitations is pleaded. In other cases, however, the position may be much less clear. In Tara Exploration and Development Company and Tara Mines Ltd. v. The Minister for Industry and Commerce [1975] IR 242, this Court considered an application in complex litigation to deal with certain matters of law as preliminary issues, before any evidence was given in relation to matters of fact.
O'Higgins C.J., in considering the criteria applicable to such application said:
"In addition, it must appear to the Court to be convenient to try such question of law before any evidence is given. This will involve a consideration of the effect on other issues in the case and whether its resolution will reduce these significantly, or shorten the hearing. Convenience in this respect must also be considered in the light of what appears fair proper and just in the circumstances."
The Supreme Court in that case upheld the High Court's refusal to try the issues of law in a preliminary manner. In the High Court, Kenny J. had cited with approval the decision of Lord Evershed M.R. in Windsor Refrigeration Company Ltd. v. Branch Nominees Ltd. [1961] Ch 375 to this effect:
"The course which this matter has taken emphasises as clearly as any case in my experience has emphasised the extreme unwisdom - save in very exceptional cases - of adopting this procedure of preliminary issues. My experience has taught me (and this case emphasises the teaching) that the shortest cut so attempted inevitably turns out to be the longest way round.
Application of principles.
It appears to me that the learned trial judge erred in considering the applicant's delay in initiating the judicial proceedings in isolation from the facts of the case as a whole, and in particular from the apparent prosecutorial delay, including the delay in providing a trial date in anything like a reasonable time. It is clear from the decision of this Court in De Róiste that, for example, the conduct of the respondents is one of the things which falls to be considered on an application such as the present, and this the learned trial judge has expressly declined to do.
This error, in turn, was I think caused by the prior decision to treat the question of the applicant's delay as a preliminary issue. Having regard to the range of matters which fall to be considered under this heading - and the six specific factors mentioned in De Róiste are expressly stated not to be exhaustive of the matters to be considered - I doubt whether it will normally be useful to deal with alleged applicant delay as a preliminary issue. Except perhaps in the very plainest of cases, the necessity to enquire into other matters such as those listed by Denham J. will render it inappropriate to deal with the matter by way of preliminary issue. Indeed, the case is analogous to the situation in Tara Exploration in that it is not possible to dispose of the issue simply by a consideration of the applicant's delay: a much broader approach is required. In Tara, it was not possible to resolve the legal issues without reference to the facts, as yet not found: that rendered the legal issues unsuitable for preliminary resolution.
5.4 In the instant case, I consider that in relation to some of the preliminary issues, it is not possible to resolve the legal issues without reference to the facts, and that in relation to the remainder of the preliminary issues, the rendering of a preliminary decision would not terminate the whole proceedings, but merely serve to provide guidance to one party or another as to how to proceed in mounting their case. In these circumstances, I conclude that it is not appropriate for me to deliver a preliminary decision in this case.
Substantive case:
5.5 The issue for decision by me is whether or not the respondent subjected the complainant to discriminatory treatment or discriminatory dismissal on grounds of age, in terms of section 6 of the Acts and contrary to section 8 of those Acts.
5.4 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.
5.6 In his evidence, the complainant confirmed that he was informed of his impending retirement date on at least two occasions prior to the date of his retirement, namely 19 May 2008 and 4 September 2008. The complainant clarified that at no time during his employment did he seek to challenge his proposed retirement or indicate to the respondent that he was not prepared to retire on the date indicated. He stated that he retired, availed of his pension and of his lump sum.
5.7 The complainant stated that a number of weeks after his retirement, he sought to work with another company who provide the respondent with piloting services on a contract basis (Company X). Company X indicated to the complainant that they had no openings for him. Thereafter, when almost six weeks had elapsed following his retirement, the complainant contacted the respondent to indicate that he had expected to receive a work offer from Company X to work on a part-time or full-time basis as a contract pilot for the respondent. He then indicated that it had just been confirmed that no such contract was available and asked that the respondent review the decision to retire him, and reactivate his employment.
5.8 The respondent wrote to the complainant and indicated that recruitment with Company X was a matter for that company but also indicated to the complainant that on the basis of his previous employment record, it would not be prepared to accept the complainant to undertake work for them on a contract basis, but that Company X operated for other airlines as well and that they may take him on for those roles.
5.9 In evidence, the complainant stated that prior to his retirement, he had not raised any issue with his retirement nor sought to be retained in any capacity with the respondent. He stated that the respondent had stopped him from flying at age 60, that his contract is silent as to a retirement age but rather indicated that he had to be in possession of a CPL. The complainant indicated that there was a recent change in the law which enabled a pilot to continue flying until the age of 65. The complainant stated, and confirmed to the Equality Officer, that the respondent has pilots who fly for it beyond the age of 60 either directly or through an agency (Company X) but that, given the lack of transparency on the part of the respondent in their Human Resources dealings with staff, he could not say with any certainty whether these pilots flew directly for the respondent or were provided through that agency.
5.10 The complainant stated that he had expected to continue flying beyond his 60th birthday, and in support of this indicated that he was provided with ongoing training as recently as two weeks before his retirement. He also indicated that he thought that the majority of pilots employed by the respondent did continue to fly beyond the age of 60 in some capacity. The complainant stated that it was his own belief that he was treated in the way in which he was because of his membership of a union.
5.11 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ...".
5.12 Having regard to the foregoing, I note from the respondent's written submissions that they indicate that the normal retirement age for pilots is 60. However I also note that the complainant gave uncontested oral evidence that pilot's continue to fly for the respondent after reaching the age of 60. The complainant further confirmed this evidence to the Equality Officer when the matter was queried, clarifying that he could not be certain of the employment relationship of such pilots. In addition, the complainant stated that it was his opinion that he was treated differently due to his union membership. I found the complainant's evidence to be credible.
5.13 Whilst the documentary evidence would appear to lead to the conclusion that a prima facia case has been established, when taken together with the oral evidence presented at the hearing, I am not satisfied that the complainant has established facts from which discrimination may be inferred. Accordingly no onus shifts onto the respondent to rebut an inference of discrimination and this complaint fails.
5.14 Having considered the evidence put before the Tribunal in its totality, and the foregoing conclusion, I consider that any further issues raised for clarification on a preliminary basis are no longer relevant to the determination of this case and accordingly will not be considered in this decision.
6. DECISION
6.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment or discriminatory dismissal on the basis of the age ground has not been established and this complaint fails.
Conor Stokes
Equality Officer
14 February 2012