EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-138
PARTIES
JOHN GOSS
(Represented by Marguerite Bolger SC and Cathy Maguire BL, instructed by Darach Connolly Solicitor)
-V-
RYANAIR LIMITED
(Represented by Martin Hayden SC and Frank Beatty BL, instructed by McDowell Purcell Solicitors)
File References: EE/2013/523 & EE/2014/052
Date of issue: December 2015
HEADNOTES: Employment Equality Acts, Section 6, Discrimination on grounds of Age.
1 DISPUTE
i. The complainant referred his claims to the Director of the Equality Tribunal on 30th September, 2013 and 7th February, 2014 under the Employment Equality Acts. On 20th May, 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Niamh O’ Carroll Kelly, 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 received from both sides and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 3rd June, 2015 and 16th July, 2015.
ii. This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
iii. The complainant alleges that the respondent discriminated against him on grounds of age when they wrote to him on the 3rd April, 2013 informing him that he was to be retired on the 14th October, 2013 upon reaching the age of 60. The respondent’s policy is at variance with the Irish Aviation Authority’s policy known as JAR/FCL060 which came into operation on the 1st July 1999.
iv. The complainant alleges that the respondent discriminated against him on grounds of age in its purported reliance upon a proposed compulsory retirement on the 14th October, 2013 in its letter dated 14th August 2013 and its assertion that the claimant suffered no loss arising from his dismissal because of the payment made representing the complainants pay up to the 14th October, 2013.
v. The respondent denies the complainant’s allegations and states that claim 1 ( EE/2013/523) is statue barred as it was not brought within six months or twelve months from the date of the accrual of the action.
vi. The respondent states that the complainant does not have locus standi in relation to claim 2 (EE 2014/052) as he was not an employee at the material time.
vii. Notwithstanding the above arguments, the respondent further alleges that it is entitled to retain a retirement age of 60 for its Irish based pilots pursuant to Section 34 (4) of the 1998 Act.
2 COMPLAINANTS' SUBMISSION
i. The complainant was employed by the respondent as a First Officer pursuant to a written contract of employment dated the 26th February, 1986. He was promoted to Captain and from 1989 to 2004 held the position of Line Training Captain. From 1991 to 1997 held the position of Safety Officer and from 1999 to 2004 held the position of Instrument Rating and Type Rating Examiner.
ii. The complainant’s contract of employment, letters of appointment and employee handbook are all silent on the issue of retirement age.
iii. The respondent’s pension scheme, of which the complainant was a member, allows him to draw down his pension at the age of 60.
iv. Prior to 1999 commercial pilots could not hold an Airline Transport Pilot Licence past the age of 60.On the 1st July 1999 the Irish Aviation Authority policy known as JAR/FCL060 IAA increased the maximum age for licensed pilots to 65.
v. By letter dated the 3rd April, 2013 the respondent wrote to the complainant informing him that he would be retired on his 60th birthday, which fell on the 14th October, 2013.
vi. By letter dated the 11th May, 2013 the complainant wrote to the respondent stating that he did not wish to retire on the 14th October, 2013 and it was his intention to remain on in his employment with the respondent.
vii. By letter dated the 21st May, 2013 the respondent replied stating the mandatory retirement age of 60 was in line with his terms and conditions of employment together with custom and practice. It is alleged that this letter amounts to the “most recent” occurrence of the act of discrimination.
viii. By letter dated the 14th August, 2013 the complainant was dismissed for gross misconduct. The fact of that dismissal is not contested. The respondent paid the complainant up to the 14th October, 2014 to ensure he would have no financial loss as a result of the dismissal.
ix. Various letters were then exchanged between the parties in relation to the validity of the complainant’s argument that the mandatory retirement age of 60 amounted to discrimination on grounds of age.
3 RESPONDENT'S SUBMISSION.
i. The complainant was dismissed for gross misconduct. He was dismissed on the 14th August, 2014. The fact of that dismissal is not in dispute.
ii. The complainant’s dismissal arose following a series of disparaging and completely unjustified remarks made by the complainant, publicly, about the safety of the respondent’s operation.
iii. The complainant’s actions amount to a breach of his contract and the dismissal in the circumstances was completely justified.
iv. The complainant lodged his first claim in September, 2013. In it he claims that the most recent occurrence of the act of discrimination was the 21st May, 2013. The Respondent contents that the complainant was informed on an annual basis ( by way of pension benefit statement) from 1999 that his retirement age was 60 therefore the first occurrence was in late 1999 and that occurrence was repeated annually until the date of dismissal. On that basis the complainant had six months from the occurrence in 1999 to lodge his claim.
v. The complainant has not identified a comparator or relevant comparator as is required by law.
vi. The complaint has no locus standi in relation to his second complaint lodged on the 7th February, 2014 alleging discrimination on grounds of his age as he was not in employment at the material time. The complainant was dismissed on the 14th August, 2014 with immediate effect.
vii. Furthermore, it is the respondent’s belief that claim no. 2 was only advanced to facilitate an Unfair Dismissal’s claim being made in the Employment Appeals Tribunal. If this tribunal finds in favour of the complainant i.e. that the mandatory retirement age of 60 does amount to discrimination in law, that finding will extended the Employment Appeal Tribunal’s jurisdiction in relation to any award from a maximum of 4 weeks to 104 weeks.
viii. In addition to the argument advanced in relation to the complainant’s failure to identify a comparator, the respondent alleges that that act allows the respondent, if it so desires, to fix different retirement ages for employees or any class or description of employee.
ix. The respondent seeks to rely on Section 101 (2) (b) of the Act in relation to the complainant Unfair Dismissal claim.
4. LEGAL SUBMISSIONS ON THE PRELIMINARY POINTS.
Claim EE/2013/523
(a) The Respondent states that the complainant, pursuant to Section 77 (5) had six months to file his claim with this Tribunal or in certain circumstances that period could have been extended to 12 months pursuant to the provision of section 77 (7) . It is submitted that the complaint filed does not come within either time period.
(b) On the 1st July 1999 the IAA increased the maximum age for licensed pilots to 65. Notwithstanding that, the respondent still maintains a mandatory retirement age of 60. That is company policy and every pilot, without exception, is retired at 60.
(c) Every pilot who participates in the occupational retirement scheme receives an annual statement which identifies the date of retirement as 60. It is accepted that the complainant participated in the Respondent’s occupational retirement benefit scheme and actively engaged with them in relation to the drawing down of his pension.
Ryanair Limited V Peter Gallagher EDA 1320 the Labour Court found:
“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 other 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 60th birthday. “
(d) The Respondent states that the relevant date for the purpose of the determining whether the matter is statute barred is the date of accrual of the action and not the date of knowledge.
HSE v Whelehan the Labour Court found:
“A time limited of the type in issue is analogous to a limitation period for the bringing of actions in civil law. It is settled law that limitation periods run from the time a cause of action accrues and not from the date of knowledge of the material facts grounding the cause of action unless there is an express statutory provision to the contrary”
Hegarty v O’ Loughlin 1990 (1) IR 148 Finlay C.J. stated:
“it is that the time limit commenced to run at the time when a provable personal injury, capable of attracting compensation, occurred to the plaintiff which was the completion of the tort alleged to be committed against her.”
(e) The Complainant alleges that the respondent’s letter dated the 3rd April and 21st May,2013 amount to the “latest occurrence” of the act of discrimination within the meaning of Section77(5). In the letter dated the 3rd April, 2013 the Respondent stated:
“We would like to confirm that your retirement date is 14th October, 2013 and confirm that this is your last day of employment with Ryanair”
In the letter dated 21st May, 2013 it states:
“As you know the retirement age for Ryanair Pilots is age 60. In common with all Dublin based pilots and in accordance with the terms and conditions of your employment and the custom and practice in place since your engagement, you will retire when you reach age 60 on 14th October, 2013”
Furthermore, I note, even though it was not put forward in submission in relation to the 1st claim, the letter of dismissal, 14th August, 2013 also repeats the respondent’s intention to retire the complainant on his 60th Birthday had it not been for the dismissal.
(f) As is stated inHSE V Whelahan and I agree with the findings therein that it is settled law that limitation periods run from the time a cause of action accrues and not from the date of knowledge of the material facts grounding the cause of action unless there is an express statutory provision to the contrary. Within Section 77 (5) there is such a statute provision “the most recent occurrence of the act of discrimination or victimisation to which the case relates”. However if the act of discrimination is simply one act, as it is in this case, that is repeated annually, then each repetitions cannot be categorised as a fresh or new occurrence. It is nothing more than a repetition of the original occurrence. Therefore, it is the date of the original occurrence in 1999 that is relevant date in this case for the purpose of establishing whether or not the claim was commenced within the statutory period.
(g) Furthermore, there is a nexus between the “most recent occurrence” and the actual “act of
discrimination”. One must first determine what the act of discrimination is before one can determine the date of its most recent occurrence.
What differentiates this case from the better known authorities is that the complainant did not retire. He was dismissed for gross misconduct two months prior to his retirement. What is certain is that if there was no intervening event, the complainant would have retired on his 60th birthday. Does that intervening event break the link between the act of discrimination and the most recent occurrence?
Donnellan V The Minister for Justice, Equlaity and Law Reform & Ors 2008 IEHC 467 . The assistant commissioner was retired from the force having reached the age of 60 pursuant to the Garda Siochana ( Retirement) Regulations 1996. The retirement itself being the “act of discrimination” as far as the Employment Equality Act is concerned.
Keane V National University of Ireland Maynooth. EDA 158 The complainant retired from her position upon reaching the age of 65.
Peter Gallagher v Ryan EDA 1320. The complainant retired from his position upon reaching the age of 60.
In all of the above authorities the “act of discrimination” was the retirement itself and not the notice of pending retirement. In the present case the complainant did not make it to his retirement date as he was dismissed two months prior therefore the ‘act of discrimination’ could never have occurred. The complainant argues that the act allows for an “ is or has been or would be treated “ scenario in relation to the act of discrimination. That is correct. However, there has to be some reality to the actual occurrence of the act. There was no reality to that prospect in this case as the dismissal removed any chance of the respondent’s retirement policy being invoked.
3. Claim EE/2014/052.
(a)The complainant alleges that the Respondent discriminated against him on the grounds of age in the following circumstances where the letter of dismissal (with immediate effect) dated 14th August, 2013 stated that as the complainant was due to be retired on the 14th October, 2013 and as a gesture of goodwill it would pay the complainant up to the date of retirement.
“ Since you have only two months to run to your retirement date ( 14th October) we have decided as a gesture of good will to ensure you suffer no financial loss as a result of this termination by paying you up to an including your retirement date on the 14th October next ( inclusive of your annual leave entitlements) and I enclose a cheque......”
(b)The complainant states that the respondent discriminated against him on ground of age in its purported reliance upon the proposed compulsory retirement age in his letter of 14th August, and its assertion that the claimant suffered no loss arising from his dismissal because the respondent enclosed a cheque representing his pay up to the date of the proposed retirement.
(c)The complainant argues that if the respondents are found to have discriminated against him when they invoked their retirement policy then he would have been entitled to work until the age of 65. That actual loss would amount to five years salary.
(d)The Respondent states that the argument put forward by the complainant that his gratuitous payment should been larger to reflect the fact that he did not have to retire at 60 had he not been dismiss is a nonsense in view of the fact that he was dismissed two months earlier.
(e)The fact of the matter, not contested, is that he was dismissed for gross misconduct on the 14th August, 2013.
(f) The respondent was under no obligation legal or otherwise to make a ‘good will’ gesture to the complainant. In circumstances where the employment relationship was terminated for reasons other than those envisaged under the Equality Acts then the complainant simply cannot argue that his gratuitous payment should have been larger to reflect the fact that he says he could have worked until the age of 65 had he not been dismissed.
HSE V Whelan EDA 0923
“The Act prohibits discrimination in relation to employment. The only form of actionable discrimination of which the complainant could complain is in relation to the conditions of his employment. Logically such discrimination could only arise when the complainant is actually in employment. In this case the complainant ceased to be employed by the respondent on the 23rd February, 2003 and any discrimination upon which he could ground a claim for redress under the Act could have occurred before that date.”
(g)The argument as to whether he should have been allowed to work until the age of 65 is moot. From the date of his dismissal he was no longer an employee of the respondent and from that point onwards the employer had no obligation or duties, statutory or otherwise for the complainant. Copymore Limited & Ors v The Commissioner for Public Works in Ireland [2015] IECA 199.” It is well established that the Court will not determine issues which have become moot unless there are special or exceptional circumstances to justify it”
4. DECISION AND FINDINGS
(a) Claim EE/2013/523 is statute barred. The relevant date for determining when time starts to run is 1999, when the complainant was first put on notice that it was a term and condition of his employment (in relation to his occupational benefit scheme) with the respondent that the mandatory retire age for all pilots was 60. Every annual notification thereafter was merely a repetition of the original utterance. Therefore, it is the date of the original occurrence in 1999 that is relevant date in this case for the purpose of establishing whether or not the claim was commenced within the statutory period.
(b) Claim EE/2014/052. The complainant has no locus standi in relation to this claim. In circumstances where the complainant’s employment was termination for gross misconduct and not pursuant to the respondents’ mandatory retirement policy, therefore he was not in an employment relationship with the respondent at the material time. On that basis he has no locus standi in relation to the claim.
(c ) Any argument in relation to level of gratuitous amounts is moot. Regardless of the whether or not the respondent’s retirement policy is in breach of the Equality Acts, the complainant did not attempt to bring an action at the appropriate time, ie 1999. After the date of dismissal the argument becomes moot.
5. DECISION
(a) I have investigated the above complaints and make the following decisions in accordance
with section 79 of the Acts that:
· The complainant’s claim EE/2013/523 is statute barred.
· The complainant has no locus standi in relation to claim EE/2014/052
· The complaint fails.
6. SECTION 101 (2)(b)
“Where an individual has referred a case to the Director under Section 77 (1) and either a settlement has been reached by mediation of the Director has begun an investigation under Section 79, the individual....... (b) if he or she was dismissed before so referring the case, shall not be entitled to seek redress under the Unfair Dismissals Acts 1977 to 2007 in respect of the dismissal, unless the Director, having completed the investigation and in an appropriate case, directs otherwise and so notifies the complainant and the respondent.”
The complainant’s claim under the Unfair Dismissals Acts, which is currently adjourned before the Employment Appeals Tribunal, requires the authority of the Director of this Tribunal to proceed. On 20th May, 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Niamh O’ Carroll Kelly, 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. According the Director has delegated to me the jurisdiction to in relation to the direction.
I refuse the complainant permission to proceed with his claim in the Employment Appeals Tribunal in the following circumstances:
i) In order for the claimant to establish loss, he must establish that the respondent unfairly dismissed him and that the respondent was legally obliged to keep him on in employment until the age of 65.
ii) I only have jurisdiction in relation to the latter. In the absence of the dismissal, was the respondent obliged to continue the employment relationship until the complainant reached the age of 65? It is only in circumstances where I find that the respondent was legally obliged pursuant to the Equality Acts to continue his employment until his 65th birthday that the issue of loss becomes important. Otherwise the claim before the Employment Appeals Tribunal is limited to a maximum of four weeks remuneration.
iii)Section 34 (4)
“Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees”
iv) Section 34 (4) is clear and unambiguous. Even though the respondent has a fix mandatory retirement age for all of its pilots, without exception, the respondent argues as Section 34 (4) allows it, if it so wishes to fix different retirement ages for different employees or class or description of employee. They argue that their retirement policy, whilst at odds with the aviation authority retirement age policy is in compliance with their national statutory obligations.
v) Irish national legislation is silent on the obligations address in Article 6 of Council Directive 2000/78/EC i.e. objective justification.
“Article 6
Justification of differences of treatment on grounds of age
1. Notwithstanding Article 2(2), Member States may provide that 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.
Such differences of treatment may include, among others:
(a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;
(b) the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment;
(c)the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.
2. Notwithstanding Article 2(2), Member States may provide that the fixing for occupational social security schemes of ages for admission or entitlement to retirement or invalidity benefits, including the fixing under those schemes of different ages for employees or groups or categories of employees, and the use, in the context of such schemes, of age criteria in actuarial calculations, does not constitute discrimination on the grounds of age, provided this does not result in discrimination on the grounds of sex.”
vi) The question for this Tribunal is whether or not there is an obligation to interpret Section 34(4) in a manner consistent with Article 6 of the directive?
The respondent argues that the principle of harmonious interpretation cannot be used to cause a contra legem interpretation of a statutory provision.
Fennelly J. In Albatros Feeds Limited V Minister for Agricultue and Food [2007] 1. I.R. 221 states :
“at the same time, perfectly clear that the court is under an obligation to interpret national law, so far as possible , in the light of the Community law provisions it is designed to implement. The important qualification is: so far as possible. The European Court of Justice does not interpret national law.
It is a fundamental principle that the Community law respects national procedural autonomy. The national court is subject to the obligation of "conforming interpretation," as the court described it in its judgment in Criminal proceedings against Pupino (Case C-105/03) [2005] E.C.R. I-5285. There are, however, limits to that obligation. Most recently, the European Court of Justice in its judgment in Adeneler v. Ellinkos Organismos Galaktos (Case C-212/04) [2006] I.R.L.R. 716 repeated at para. 110 that "the obligation on a national court to refer to the content of a directive when interpreting and applying the relevant rules of domestic law is limited by general principles of law, particularly those of legal certainty and non-retroactivity, and that obligation cannot serve as the basis for an interpretation of national law contra legem ."
The national court is not obliged so to interpret its national law in a way which would be incompatible with the relevant national legislation”
The complainant argues that many cases that have come before the tribunal and the Courts both in this jurisdiction and in European have applied the ‘objective justification’ test in line with the Directive. In that regard the complainant relies onDonnellan V Minister for Justice 2008 IEHC 467. However, it is noted that the case was brought against the State which is an entirely different matter than a claim against a private company. (referred to later in this decision)
S.C.
The complainant also relies on the decision Prigge, Fromm & Lambach –v- Deutsche Lufthansa..wherein it found that where both national and international law permitted pilots to fly until the age of 65 and a compulsory retirement age of 60 cannot be objectively justified on public safety grounds.
Prigge emanated from a jurisdiction that did have a national statutory retirement age and had transposed Article 6 into its national law. This jurisdiction differs on both.
In the Von Colson and Kamann V Land Nordrhein Westafalan 1994 case the German court which submitted the case for a ruling asked whether it was acceptable that a woman who applied for a job and was refused because she was a woman, contrary to the intent of the Equal Treatment Directive, was only entitled under the German domestic law prohibiting such discrimination to the recovery of her expenses (if any) of her application. The German Government in making representations to the European court expressed the view that under German law compensation for discrimination could include general damages for the loss of the job or of the opportunity to take up the job. The ruling of the European Court of Justice did not constrain the national court to construe German law in accordance with Community law but ruled that if under German law the German court possessed the power to award damages which were adequate and which fulfilled the objective of the Equal Treatment Directive then it was the duty of the German court to act accordingly.
The 1998 Act itself was passed in order to give effect to the Directive. Since then it has been amended on several occasions however Section 34 (4) has never formed part of those amendments. The Act and all of its amendments are silent on the issue of objective justification. It is beyond the jurisdiction of this Tribunal to rectify any perceived failings on the part of the Legislator or the State. However, there is an obligation to ensure the objective of the directive is not ignored.
Minister for Justice v Director of the Equality Tribunal 2010 2 IR 455. “there is no principle of European law which allows an administrative body or a court of limited jurisdiction to exceed its own authority in order to achieve a result , whereby it is of the view that European legislation has not been properly implemented at national level and that situation is to be remedied by the re- ordering in ideal form of national legislation. The limit on jurisdiction is of primary importance to the exercise of authority, whether the court be on established as an administrative body, or is one of the courts under the Constitution.”
It is further argued by the respondent that directives do not have horizontal direct effect and cannot impose obligations on a non state body. In that regard it relies on Marshall V Southhampton & South West Hampshire AHA 1986 Q.B.
“with regard to the argument that a directive may not be relied upon against an individual, it must be emphasised that according to Article 189 of the E.E.C. treaty the binding nature of a directive , which constitutes the basis for the possibility of relying on the directive before a national court, exists only in relation to each member state to which it is addressed. It follows that a directive may not of itself impose obligation on an individual and that a provision of a directive may not be relied upon as such against such a person.
Also in Duke v GEC Reliance Ltd [1988] A.C. 618 Lord Templeman held “It would be most unfair to the respondent to distort the construction of the 1975 Sex Discrimination Act in order to accommodate the 1976 Equal Treatment Directive as construed by the European Court of Justice in the 1986 Marshall case. As between the appellant and the respondent the Equal Treatment Directive did not have direct effect and the respondent could not reasonably be expected to reduce to precision the opaque language which constitutes both the strength and the difficulty of some Community legislation. The respondent could not reasonably be expected to appreciate the logic of Community legislators in permitting differential retirement pension ages but prohibiting differential retirement ages. The respondent is not liable to the appellant under Community law. I decline to hold that liability under British law attaches to the respondent or any other private employer to pay damages based on wages which women over 60 and under 65 did not earn before the amending Sex Discrimination Act 1986 for the first time and without retrospective effect introduced the statutory tort of operating differential retirement ages”
In Smith v Meade 2009 3.IR Peart J held “direct effect does not provide a remedy as against an individual such as FBD but rather against the State or any emanation of the State.
I must conclude that in light of the fact that Section 34 (4) specifically provides for the setting of different retirement ages and despite many amendments, the Act is still silent in relation to the requirements as set out in Article 6, that the respondent, in the case of the complainant, was entitled to set a mandatory retirement age of 60 without the need to objectively justify that decision. I further conclude that even if the Directive places an obligation on State bodies to objectively justify its decision to set mandatory retirement ages the directive does not place any such obligation on a private company.
_____________________________
Niamh O’ Carroll Kelly BL
Adjudication Officer/Equality Officer
December 2015