DEC-E2013-197

DEC-E2013-197

John Roche

(represented by Sullivan Waters & Co. Solicitors)

versus

Complete Bar Solutions

(represented by Noonan, Linehan Carroll Coffey Solicitors)

File reference: EE/2011/630

Date of issue: 30th December 2013

Keywords: Employment Equality Acts, Discrimination, Age, Retirement Age, Objective and reasonable justification

Dispute

1.1 This case concerns a complaint by John Roche against his former employer Complete Bar Solutions Ltd that he was discriminated against on the grounds of age in terms of 6 (2)(f) of the Employment Equality Acts 1998-2011 [hereinafter referred to as 'the Acts'] regarding being forced to retire.

1.2 Through his legal representative, the complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 5th September 2011. In accordance with his powers under Section 75 of that Acts, the Director delegated the case on 18th June 2013 to Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Acts. Submissions were received from both parties and a Hearing was held on 3rd July 2013. The final correspondence received in relation to information sought by the Equality Officer was on 25th October 2013. In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties.

Summary of the complainant’s case

2.1 Mr Roche was originally employed by Celtic Technical Ltd on 1st March 1996. A transfer of undertakings following a Management Buy Out occurred on 31st of October 2005 when it became Complete Bar Solutions ltd.

2.2 Mr Roche was the manager of approximately 16 people. The respondent company engaged in contract work on behalf of various breweries in servicing the equipment in various licensed premises e.g cleaning the pumps etc. Mr Roche submits that his employment was terminated simply because he reached the age of 65 on 7th March 2011. A letter sent on 2nd march read:

Dear Johnny,

I am following up from our meeting on Monday last as I would very much like to try to resolve this issue without falling out with you. Unfortunately, the retirement age of the company is 65 years and I cannot offer a redundancy payment to you.

What I can offer you is a further period of employment under a fixed term contract beyond the retirement date. I mentioned this to you on Monday and I suggested to you a six month contract.

Please consider this and telephone or meet with me again to discuss

 

____________

Mr A

The complainant submits that his written terms and conditions of employment are silent on the issue retirement age.

Summary of the Respondent’s case

3.1 The respondent states that Mr. Roche’s service during the period of his employment was excellent and Mr A [Managing Director] regarded the complainant as a personal friend i.e. they occasionally socialised together. The respondent accepts that his written statement of terms and conditions was silent on the retirement age but that it was an implied term. However, Mr Roche was aware of the custom and practice of the company that people retired at 65. As an example Mr B retired the previous year. As one of three trustees of the company pension scheme, Mr Roche would have been well aware of this. The Trust identified all member of the scheme by their salary, ages and intended retirement date to the Trustees. Therefore the respondent submits that the complainant had ongoing firsthand knowledge for the applicability of the normal retirement age of 65 to every employee including Mr Roche himself.

3.2 The respondent submits that it was because Mr Roche was aware of this custom and practice that he approached Mr B on 5th January 2011 with a proposal that the respondent give him redundancy or remained employed. The complainant felt the redundancy payment could be claimed back from the Exchequer. Mr A explained that was not possible as his position was not being made redundant. Mr A said he intended promoting a more junior employee. This theme was continued at meetings on 18th January and 28th January 2011. Letters reiterating the company’s position were sent on 18th January and 23rd February as well as 2nd March (see above). Following retirement, the complainant sought a reference and a favourable one was supplied.

3.3 In direct evidence, Mr A also submitted that he did not wish to create a precedent by allowing somebody to stay beyond the normal retirement age. He said that he was anxious to create promotional opportunities for more junior staff. His preference was always to promote internally as it was a technical job He said internal promotion was good for staff morale.

3.4 Mr A said he was in the process of an internal recruitment competition to fill Mr Roche’s vacancy but the respondent lost a major contract and all 73 employees were the subject of a transfer of undertaking to CPM Ireland Ltd on 30th June 2011. The respondent company is in voluntary liquidation.

Conclusions of the Equality Officer

4.1 The issue for me to decide is whether or not Mr Roche was discriminatorily dismissed on the grounds of age in terms of Section 6 2 (f) of the Acts contrary to 8(6)(c). Section 6 (1) of the Acts provides that discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated.

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 upon which he can rely in asserting that he suffered discriminatory treatment. 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. Prima facie evidence has been described as ‘evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.’[1]

Dismissal

4.3 There is no dispute that Mr Roche was compulsorily retired when he reached the age of 65.

4.4 The respondent initially stated that it does not have to objectively justify its retirement age because of Section 34(4) of the Acts:

Without prejudice to subsection (3) it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntary or compulsory) of employees or any class or description of employees.

However, it has been the practice of the Equality Tribunal to interpret Section 34 (4) in a harmonious way with Article 6 (1) of the Equal Treatment Directive:

Notwithstanding Article 2(2), Member States may provide

those differences of treatment on grounds of age shall not

constitute discrimination, if, within the context of national law,

they are objectively and reasonably justified by a legitimate

aim, including legitimate employment policy, labour market

and vocational training objectives, and if the means of

achieving that aim are appropriate and necessary.[2]

4.5 Authority for this is Donnellan v The Minister for Justice, Equality and Law Reform where McKechnie, J. states:

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 must be appropriate and should go no further than is necessary, i.e. they should be proportionate.[3]

4.6 This has been followed in Saunders v CHC[4], Paul Doyle v ESB International[5], Rosanna Nolan v Quality Hotel[6] Patrick Dunican and Thomas Spain v Offaly Civil Defence[7] and McPhillips v ISS Facility Services[8]. This instant decision differs from the Labour Court case Hospira and Roper, Needham, Bryson, Ward and Dunnion as that dealt with redundancy payments under Section 34 (3) (d) of the Acts rather than Section 34(4) here..

4.7 Therefore, I am satisfied that the complainant has established a prima facie case of discriminatory dismissal and the respondent (even as a private actor) must provide me with objective justification. When the Heyday case was returned from the Court of Justice of European Union to the United Kingdom High Court, Blake J stated that:

I consider that examining the legislative context as a whole, there is a distinction between the social aim of confidence in the labour market and the application of that aim in the particular Regulations that permit employers to discriminate where they can show it is necessary and proportionate to do so in the interests of their business. The private employer is not afforded the wider margin of discretion in the application of the regulation that the State is. The flexibility shown to the employer in permitting it to endeavour to justify discriminatory treatment is not an aim in itself, but a means of advancing the social policy aim of confidence in the labour market. There is no reason to believe that in the special context of age discrimination, the kind of business practice reasons that can justify indirect discrimination are fundamentally different from those that can justify direct discrimination.[9] [my emphasis]

4.8 The reasons given by the respondent was that it was the custom and practice to retire people at 65 to create certainty in business planning and to encourage staff morale by using the consequential vacancy as an internal promotional opportunity. Mr A emphasised that because of the technical nature of their work a ‘man off the street’ could not be employed as it took years of experience to build up the technical expertise. This is in line with the Petersen case where the CJEU heldthat ‘in view of development in the employment situation in the sector concerned it does not appear unreasonable for the authorities of Member States to consider that the application of an age limit, leading to the withdrawal from the labour market of older practitioners, may make it possible to promote the employment of younger ones’[10] The Court goes on to say that ‘ Article 6 (1) of the Directive must be interpreted as not precluding such a measure where its aim is to share out employment opportunities among the generations in the profession of panel dentists, if, taking into account the situation in the labour market concerned the measure is appropriate and necessary for achieving that aim’.[11]

4.9 I find this is a legitimate aim of the respondent. It is also appropriate in that the respondent provided access (and contributed towards) to a defined contribution pension to be drawn down at age 65 so the employee had access to two income streams – an occupational pension and the State pension. This is similar to Fuchs and Kohler v Landhessen, where the CJEU found it relevant that the complainants were entitled to a reasonable pension.[12] I also find the aim to be necessary as the respondent could lose valuable staff if there were no promotional opportunities provided. Like Georgiev[13] Mr Roche was also offered a fixed-term contract of employment after he turned 65. Unlike Mr Georgiev he turned it down. It also differs from Mangold where the age at issue is much higher – that is 65 rather than 52.[14] In the circumstances of this case, I am satisfied that, cumulatively, these reasons objectively justify the compulsory retirement at 65. Therefore the respondent has successfully rebutted the case.

Decision

I have concluded my investigation of John Roche’s complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Acts, that the complainant was not discriminatorily dismissed on the grounds of age.

_______________

Orlaith Mannion

Equality Officer

Footnotes:

[1] Gibney v Dublin Corporation EE5/1986

[2]COUNCIL DIRECTIVE 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation

[3] [2008] IECHC 467 Paragraph 126.

[4] DEC E2011-142

[5] DEC E2012-086

[6] DEC E2012-042

[7] DEC E2013-027

[8] DEC E2013-042

[9] UK High Court Case No: CO/4585/06 National Council on Aging (Age concern England) v Secretary of State for Business, Enterprise and Regulatory Reform [2009]EWHC 2336

[10] Paragraph 70 Case C-341/08 Domnica Petersen v Berufungsausschuss fur Zahnarte fur den Bezirk Westfalen-Lipp

[11] Ibid Paragraph 78

[12] C-159/10 and C-160/10

[13] C-250/09 and C-268/09 Vasil Ivanov Georgiev v Tehnickheski unviersitet – sofia filial Plovdiv

[14] Wermer Mangold v Rudiger Helm Case C-144/04