EDA1320

In this Determination the parties are referred to as they were at first instance. Hence, Ryanair Limited is referred to as the Respondent and Mr Gallagher is referred to as the Complainant.

Background

The Complainant was employed by the Respondent in his capacity as an airline pilot between 23^rdNovember 1989 and 7^thOctober 2008, on which date he reached his 60^thbirthday. The issue arising in the case was whether the Complainant’s employment ended in circumstances amounting to a termination of his contract of employment by the Respondent on grounds of his age or whether it ended by agreement on the Complainant reaching the age at which he became entitled to an occupational pension.

It was a condition of the Complainant’s employment that he held a commercial pilot’s licence. Historically, such a licence could not be held by a person over the age of 60. That position later changed and at the time the Complainant’s employment came to an end the upper age limit for the holding of a commercial pilot’s licence was 65.

Position of the parties

In the circumstances outlined above the Complainant contends that he was forced to retire on reaching age 60 and that this amounted to a dismissal on grounds of his age. He contends that other pilots were allowed to continue in employment, in either a full-time or a part-time capacity, beyond their 60^thbirthday.

The Respondent contends that the agreed retirement age for all pilots, including the Complainant was 60. It contends that the Complainant at all times accepted that he would retire at age 60. It further contends that the Complainant actively arranged to retire and draw down his pension and retirement lump sum. According to the Respondent, the Complainant first complained, after his retirement, when he was refused employment with an organisation which supplied pilots to the Respondent on a contract basis.

Management of the case

The Court arranged a case management conference with the parties on 12^thOctober 2012 in order to discuss the parameters of the case. At this case management conference significant questions of national and European law were identified as potentially arising if it was found that the Respondent had unilaterally terminated the Complainant’s employment by the imposition of a compulsory retirement age.

Since the circumstances in which the Complainant’s employment came to an end were hotly contested between the parties the Court determined, by agreement between the parties, that it would take evidence and issue its findings of fact on this question. It was further agreed that if the Court concluded that the Complainant’s employment came to an end by agreement that finding would be dispositive of the whole case. Conversely, if the Court found that the Complainant’s employment ended in circumstances amounting to a unilateral termination by the Respondent, a further hearing would be convened to consider the legal implications of that finding.

The Court held a hearing for the purpose of taking evidence on 30^thApril 2013, the earliest date on which the parties were available.

Findings of fact

The Court heard evidence from the Complainant and from Mr Darrell Hughes, who is Deputy Director of Personnel with the Respondent. Based on the evidence adduced the Court has reached the following findings of fact.

The Court is satisfied that the Complainant’s contract of employment did not stipulate a retirement age. Nevertheless the Court is satisfied that at all material times the Complainant knew and accepted that he, in common with all pilots, would retire at age 60. The Court is further satisfied that the Complainant never demurred from this understanding during the currency of his employment with the Respondent. It is also clear from the evidence that the Complainant actively engaged with the Respondent or its agents in arranging to draw the occupational pension to which he became entitled on retirement as he approached his 60^thbirthday.

The Court accepts that other pilots who retired at age 60 returned to work with the Respondent after their retirement but that they did so through a separate legal entity used by the Respondent to engage pilots on contract. The Court does not accept that any pilots were retained in the direct employment of the Respondent beyond their agreed retirement age. The Court is satisfied that the Complainant had an expectation that on his retirement he would return to work with the Respondent on the same basis as others who had returned. He was refused further engagement for reasons which were stated by the Respondent as involving his record and performance, which the Court believes to relate to litigation and complaints to statutory bodies concerning his employment with the Respondent.

Conclusion

It is clear from the decision of the High Court inDonnellan v Minister for Justice Equality and Law ReformIEHC 467 that where an employee is forced to retire at a particular age there is prima facie discrimination within the meaning of Article 2 of Directive 2000/78/EC. The doctrine of direct effect does not arise in this case although the Court remains obliged to interpret our domestic law, as far as possible, in light of the wording and purpose of the Directive so as to produce the result envisaged by the Directive. However, the Court is satisfied that it is unnecessary to consider the scope or effect of the doctrine of conforming interpretation in this case.

A decision by an employer to force an employee to retire at a particular age may give rise to prima facie discrimination amounting to a dismissal on grounds of age. But the law does not prevent parties from freely entering into an agreement on retirement and for the payment of a pension in consideration of retirement at a mutually agreed age.

In this case the Court is satisfied on the evidence that the Complainant freely entered into an agreement with the Respondent to retire at age 60 and that agreement was supported by the payment to him of an occupational pension at that age. The Complainant never sought to resile from that understanding until after his employment came to an end in accordance with that agreement. In these circumstances his employment came to an end by agreement and not by unilateral termination at the instigation of the Respondent. The Court cannot speculate as to what the response of the Respondent might have been had the Complainant refused to voluntarily retire at the material time.

The Court is further satisfied that the gravamen of the complaint now pursued by the Complainant is that he was refused re-engagement with the Respondent following his retirement in like manner to that of other pilots who had retired. However, it is clear from the evidence that the reason for this refusal was wholly unrelated to his age.

Determination

As the Court has found that the Complainant’s employment came to an end by agreement his claim under the Act cannot succeed. The appeal is disallowed and the decision of the Equality Tribunal is affirmed.

Signed on behalf of the Labour Court



Kevin Duffy
21st June 2013______________________
AHChairman



NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.