ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001463

Complaint for Resolution:

Date of Adjudication Hearing: 20th April 2016

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act 2015, and Section 79 of the Employment Equality Act 1998, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

The Complainant was employed by the Respondent for a period of 25 years from 1^st January 1991 to 6^th January 2016 and his weekly rate of pay €591.50c.   The complaint was presented to the WRC on 20^th January 2016.

Summary of Complainant’s Case:

The Trade Union said that at the time his employment was terminated, the Complainant had been employed as a bar worker with the Airport for 25 years, some of this with a named Catering Company, who were for a period contracted by the Airport to provide their catering needs.   The Complainant was provided with a number of contracts of employment over this period.

The Trade Union said that in 2004, part of a collective agreement that provided that the Catering Company employees (who had initially transferred to the Respondent under TUPE) were now to transfer over to the Respondent’s terms and conditions of employment.   In 2006, following acceptance of these proposals, the Complainant and others were issued with new contracts of employment.

As no retirement age was identified in the Catering Company Contract or the post 2006 Contract, the Complainant was not aware of any such term and was quite surprised in February 2015, when he received a letter from the HR Manager informing him of his retirement less than one year later on 6^th January 2016.   The Complainant consulted with his SIPTU Representative and an email was sent to the HR Manager querying the retirement age in the employment.   The HR Manager responded stating that retirement age was 65 years.   The Trade Union then wrote to the HR Manager specifically referring to the Complainant and pointing to the absence of a retirement age in his contract of employment and urging the Respondent not to impose this on the Complainant.   The Trade Union did not receive a response and a meeting with the CEO was requested in order to appeal the decision and attempt to achieve a resolution.   The request for a meeting was rejected and instead the HR Manager sent a copy of a section of the Catering Company contract of employment in support of his decision to impose the retirement age on the Complainant.

The Trade Union said the Complainant had no alternative other than to retire as instructed by the Respondent.

A complaint was then lodged with the WRC, based on the premise that the Respondent were, by their actions, in breach of the Employment Equality Act 1998.

The Trade Union said that in looking at the Complainant’s contracts of employment it can be seen that no retirement age is identified in any of them.   The Respondent has referred to a section of the Catering Company’s Handbook, which they say justifies their position.   The Trade Union said the section referred to states: “The minimum age of employment is 18 years and employment shall not continue beyond their 65^th birthday”.  

The Trade Union said that in April 2015, the Complainant made a request under the Data Protection Act for all data held by the Airport in relation to his employment and when he received this it did not include the section of the Handbook they now rely upon.   The Trade Union said that however even if one were to leave aside the fact that there is no evidence to support the contention of this term being present in the Complainant’s Catering Company’s contract, one has then to consider the variations that later occurred.  

Clearly the Catering Company employees initially transferred to the Respondent on their then existing terms and conditions of employment.   However in 2004, negotiations concluded on an agreement that brought the former Catering Company’s employees in line with the established terms and conditions in place for the established Airport employees.

The Trade Union said following this, new contracts of employment were issued, but despite having the opportunity to fix a retirement age Respondent did not do so.   The Trade Union said therefore on that point no basis exists to support the assertion that a retirement age was part and parcel of the terms in place for the Complainant at the time of his imposed retirement in January 2016.    

The Trade Union said the other argument put forward for the decision was that a custom and practice exists.   The Trade Union said it may well be the case that some employees have retired at 65 years of age; however they would state that there are at least two comparators, who they understand have been retained to 66 years and 69 years (HB 2009 and HB 2014).

The Trade Union said while there is no fixed retirement age in the Complainant’s terms and conditions of employment even if there was it would not in their opinion stand up to scrutiny.

The Trade Union said the Complainant is fit and well and has had no difficulty carrying out the duties associated with his job.   Therefore there is no justification for a mandatory retirement age in this situation.

The Trade Union said the Complainant is in good health and this is confirmed by the Respondent’s letter of 19^th February 2015 which states he was “a loyal and dedicated individual and an asset to the Airport since joining……..”

The Trade Union said that the Complainant is one of only a few who now holds 39 hour per week contract of employment, he believes that new entrants are on less beneficial terms and conditions and that the Respondent is anxious to eliminate these long term contract in favour of more precarious ones.   (This was strongly denied by the Respondent).

The Trade Union said the Complainant is not a member of an occupational pension scheme and will not qualify for the state pension until he reaches 66 years of age.   He is currently on Job Seekers Benefit, after a lengthy working life.

The Trade Union said that when the exercise of alignment in the documents of the conditions of employment of those from the Catering Company to the Respondent’s one there was no mention of a mandatory retirement age and in 2006 when confirming conditions it was not included.

The Trade Union and the Complainant sought a favourable decision; that would see the Complainant reinstated without any loss in pay.

Summary of Respondent’s Position:

The Respondent said that it has been the accepted custom and practice of the Airport since 1986 that employees retire when they reach the age of 65.

The Respondent said they maintain a blanket retirement age to ensure consistency among all of their employees and to create a certainty in succession planning for the Airport.   It is important that the Airport plans ahead to find a suitable replacement for workers who leave or are coming up to retirement age.  

The Respondent said there are a number of departments within the Airport and in particular firefighters and ground services personnel, which require that some of their tasks such as fighting fires, rescuing people, loading, unloading cargo from an aircraft, require exceptionally high physical capabilities.   The Respondent said that according to Regulation EUO No. 216/2008, it is an essential requirement for all aerodrome operators that, “all rescue and firefighting personnel potentially required to act in aviation emergencies shall periodically demonstrate their medical fitness to perform their functions satisfactorily, taking into account the type of activity”   The Respondent said that while other departments do not share the same occupational requirements, it is a legitimate aim of the Airport to ensure cohesion in the workforce that there are no differentials in the ages that workers retire at.   The Respondent said that that all employees in 3 other named and similar airports retire at age 65.   The Respondent said there is a huge variety of roles within the Airport and they cannot have different employees from different departments retiring at different ages, there needs to be a uniform retirement age of 65 at the Airport and they have one such.

The Respondent said that the Complainant was originally employed by a named Catering Company from 1991 to 2003; a transfer of undertakings followed the takeover by the Respondent of the catering outlets.   The Complainant’s terms and conditions of employment transferred over to the Respondent as part of the transfer and all of his original terms and conditions were transferred.   The Respondent said that as part of the Complainant’s terms and conditions of employment with the Catering Company, it is clear that those terms include that employment shall not continue past the 65^th birthday.   The Complainant signed and accepted this at the time. The Respondent do not wish to set a precedent by allowing someone to stay beyond normal retirement age.

The Respondent said that the Complainant was a senior bartender within the Catering Department and the Airport provides a food and beverage service to passengers on airside in the departure area and also landside in the main terminal building, he would have worked primarily in airside in the Departures Bar.

The Respondent said that they would wish to confirm that the Complainant’s service during the period of his employment was excellent.   However, the Complainant was aware that the custom and practice of the Airport is that employees retire at 65.   The Complainant would have attended many of the internal retirement gatherings.   The Respondent submitted that the Complainant would have had first-hand knowledge of the application of the normal retirement age of 65 years to every employee including himself.   The Respondent said that 3 colleagues from the Complainant’s own Department have recently retired and he would have attended their retirement dinners, which are part-funded by both the Respondent and the employees.

The Respondent said they have a well established practice of compulsorily retiring their employees when they reach age 65 years.  

They said that in one exceptional circumstance, an employee who was retired at age 65 was            re-engaged on a fixed-term contract of employment for a stand-alone capital runaway overlay project.   While they were paid by the Respondent for their work on this capital project, their wages were reclaimed through the Department of Transport; in effect the Department of Transport paid their wages; however no such circumstances exist in the Complainant’s case.

The Respondent said there was one exception in the list of retirees.   A named employee who worked in retail retired at 65, she did not retire on her 65^th birthday.   There was an occupational requirement at that time as passengers numbers increased by 73,080 from 2007 to 2008.   The Respondent said that accordingly they did not plan for her retirement and her employment was extended by 11 months, but no such circumstances exist in the Complainant’s case.

The Respondent said that they do not fix different retirement age for employees and do not discriminate between different grades of employees on age grounds for retirement age.

The Respondent said that the setting of the retirement age at 65 is appropriate and necessary in the circumstances of the job role and duties required.   As part of the Complainant’s duties there is substantial manual handling involved.   The Respondent also has a policy on performance management and resolution mechanism.   The Respondent wishes to avoid the need to terminate an employee’s employment in situations that are humiliating for employees by reason of their advanced age, thus preserving their dignity and avoiding the need for costly disputes about capacity or underperformance.

The Respondent said that in parallel with this is the need to free up positions so that younger workers can enter the employment and have a defined career path where their ambitions can be realised.   The lack of new young entrants to the Airport would have an adverse effect, not only on the Catering Department, but on all departments, especially critical ones like the fire service, security ground services and customer service.   This would not only have an affect on productivity, but also on health and safety.

The Respondent fully believes in creating promotional opportunities for more junior staff and their preference is always to promote from within and job vacancies have always been posted internally first.   Internal promotion is good for employee morale.   The Respondent provided some examples of promotional opportunities directly related to retirements.

The Respondent said they are the main employer within the local area, they endeavour to establish an age balanced workforce to ensure that motivation and dynamism is at the cores of each department.   This can be increased with the prospect of promotion within each department.   The Respondent said that there are 16 employees within the Catering Department that are under the age of 40 and there has to be opportunities for employees to grow and progress within the employment.   The employee turnover rate of permanent employees is very low; from 2013 to the present the average turnover rate is 2.7%.

The Respondent said they have demonstrated that it is necessary and proportionate to retire employees at the age of 65 in the interests of the business to provide promotional opportunities, to encourage staff morale and to create certainty in succession planning.

The Respondent said the Complainant is alleging that he has been discriminated on the grounds of age regarding the issues described above and that he was discriminatorily dismissed from employment on 6^th January 2016, as a result of the Respondent applying their retirement age and also retiring other employees who had reached their 65^th birthday.   His final day of work was 22^nd December and he was on annual leave until his retirement on 4^th January 2016, which was his 65^th birthday.

The Respondent said the Employment Equality Act 1998 defines the term “age” and also what is meant by “discrimination”.   The Respondent quoted the definition of both ‘Direct Discrimination’ and ‘Indirect Discrimination’.

The Respondent said that it has been the well established practice of the Equality Tribunal and the Labour Court to require a Complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably than another person is, has or would be treated, on the basis of the discriminatory ground cited.   It is only when he has discharged this burden to the satisfaction of the Equality Officer/Adjudication Officer, that the burden shifts to the Respondent to rebut the inference of discrimination raised.   As such the Respondent would argue in the strongest terms possible that the Complainant has failed to discharge this burden of proof because he had failed to provide objective evidence demonstrating he was treated differently and discriminated against on the basis of age, not sanctioned under the law in Ireland.

The Respondent said the Equality Tribunal and the Labour Court have consistently found that they must first decide whether the Complainant has established a prima facie case in accordance with Section 85A of the Employment Equality Act.   The Labour Court has consistently held that the facts from which the occurrence of discrimination may be inferred must be of sufficient significance before a prima facie case is established and the burden of proof shifts to the Respondent.   Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which inference discrimination can be drawn.   The Labour Court elaborated on the interpretation of Section 85A in Melbury -v- Valpeters EDA/0917, where they stated that Section 85A “places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

The Respondent said that furthermore the Complainant was aware of the retirement age contained in his contract of employment.   The Respondent said the Complainant made absolutely no representations whatsoever, either formal or informal, in relation to the inclusion of a retirement age within his contract of employment.   The Complainant was issued with terms and conditions of employment that clearly stated that he would be retiring on his 65^th birthday and furthermore all employees retire at 65 years of age.

The Respondent referred the case of Sweeney -v- Aer Lingus Teo DEC-E2012-135 which states: “I also note that no age was explicitly set out in the Complainant’s contract of employment, but that it was common practice for those employees who reached the age of 65 to retire……. However, I am satisfied that the Complainant was aware, or reasonably ought to have been aware, that 65 was the retirement age.”    

The Respondent said that Section 34(4) of the Act has been amended by the Equality Act 2015, S.10 and in effect put on a statutory basis what had become the interpreted case law in practice and what was considered to be in line with the Directive.   The Respondent said that that this Section is based on Article 6 of the Equal Treatment Framework Directive, which allows Member States to provide that differences of treatment on grounds of age are not discriminatory if, under national law, they are objectively justified by a legitimate aim, which may include employment policy and labour market and vocational training objectives, provided that the means of achieving that aim are appropriate and necessary.

The Respondent said the authorities provided through ECJ judgements and other higher courts on the matter of retirement age mainly concern that age as it relates to various national social policies, as defined, and the connected eligibility and benefits of a pension payment.   The Respondent said that this is clearly seen in Palacious de la Villa -v- Cortefiel Services SA and Age Concern -v- Secretary of State for Business Enterprise and Regulatory Reform.   The Respondent said that these judgements, and the more recent judgement in Torsten Hórnfeldt -v- Posten Meddalande AB largely examine the modalities of employees and state social policy aims, and it is presumed employers have to act in a like manner.   The Respondent said that this is not necessarily so; in Seldon -v- Clarkson, Wright and Jakes, the United Kingdom Supreme Court , in April 2012, said although states have to justify their laws by reference to social policy aims, that was not the same as saying that private employers must also only have a “social or employment policy” aim.   That Court held that while a compulsory retirement age was potentially a directly discriminatory measure, it was capable of justification where it was based on various legitimate aims.   Unlike other forms of direct discrimination, direct age discrimination can be objectively justified by a legitimate aim, including legitimate employment policy objectives, if the means of achieving that legitimate aim are appropriate and necessary.   The ECJ have made clear that legislation can give some discretionary powers or a degree of flexibility to employers.   Therefore an employer could have slightly mixed motives, as long as their actions were consistent with the government’s overall social policy aim.

The Respondent said the retirement of persons at 65 years of age was justifiable on the basis of the health and safety and the physicality of the work involved.   Bar staff are required to load and unload beer barrels and stock on a daily basis and carry a number of boxes of bottles for the Airport Bar.

The Respondent denies direct or indirect discrimination arises in the instant case.   The Respondent said that further, the Complainant has not provided any evidence to meet the legal tests to support the complainant.

The Respondent said that as the Complainant has not established a prima facie case of discrimination on the grounds of age, the Respondent submitted that the Adjudication Officer should reject the complaint under the Act.

Findings and Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Section 82 of the Act.

I have carefully considered the evidence and the submissions made and I have concluded as follows.

The issue for decision by me is whether or not the Respondent discriminated against the Complainant on the grounds of age in terms of Section 6(2) of the Employment Equality Acts 1998 – 2008 and contrary to Section 8 of those Acts, in terminating his employment by reason of enforced retirement on his 65^th birthday on 6^th January 2016.

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.

It is well established that it is for the Complainant to establish facts of significance, by way of evidence; facts from which it can be inferred or presumed that he has been unlawfully discriminated against on the discriminatory grounds (the age ground) cited (a prima facie case be established).

In this respect I note the following:

• I note that in the written contract of employment between the parties, dated 11^th October 2006 and signed and dated both by the Complainant and on behalf of the Respondent, there is no reference or mention of a retirement age.   This is the contract that was in force at the time of the termination of the Complainant’s employment with the Respondent and it is silent on the question of retirement.   Thus it cannot be said that the termination of the Complainant’s employment by the Respondent was provided for in his contract of employment.
• It is not in dispute that the Complainant’s employment was terminated by the Respondent solely on the grounds that he had reached 65 years of age and that he would not otherwise have had his employment terminated by the Respondent.

I note that in Donnellan -v- Minister for Justice, Equality and Law Reform [2008] IEHC the High Court found that terminating an employee’s employment solely on reaching a particular age constituted direct discrimination and that therefore it was for the Respondent to rebut the inference of discrimination raised in that case.

I also note that in the High Court case of Porter -v- Donegal County Council on 23^rd March 1993 the High Court stated where: “an attempt to force them into retirement by dismissal at a certain age was an attempt to unilaterally alter their contractual situation and would be in breach of contract unless it can be justified in some other lawful way”

Based on the above I am satisfied that the Complainant has established, on a prima facie basis, facts of sufficient significance to raise an inference of presumption of discrimination and accordingly the burden shifts to the Respondent to rebut the inference.   Accordingly it is for the Respondent to prove or demonstrate that their approach to enforced retirement is reasonably and objectively justified ….. and that the means of achieving that aim are appropriate and necessary”

The Respondent submits that it was common, almost universal practice, with very few exceptions, and none of these reasons of these exceptions apply in the Complainant’s case, for all employees to retire at age 65 and they provided persuasive evidence (with considerable detail) that this was the case.   They further submitted that the Complainant would have been fully aware of this practice.   The evidence in this respect is credible and consistent and it accepted by me.

Accordingly, I accept that the Complainant was aware, or reasonably ought to have been aware, that age 65 was the normal retirement age.

Article 6(1) of Council Directive 2000/78/EC states: “Notwithstanding Article 2(2), Member States may provide that difference 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 are appropriate and necessary.”

In this respect the Respondent submits that the retirement of employees, including the Complainant was objectively necessarily and reasonably required or justified to:

• ensure consistency among all employees in relation to retirement
• to create certainty in succession planning
• for heath and safety reasons as some tasks performed by employees require exceptionally high physical capabilities
• to ensue cohesion in the workforce
• to ensure a uniform retirement age
• to ensure that there is an age balance in the workforce
• to free up jobs so that younger workers can enter to the workforce and younger workers have an opportunity for advancement/promotion
• to avoid the possible dispute and humiliation of having to terminate the employment of employees by reasons of advanced age.

I accept that the above are legitimate and justified aims and objectives. I must consider if the means adopted by the Respondent to achieve these aims and objectives are appropriate and necessary.

I note that no occupational pension for the Complainant exists in the Respondent employment.   Accordingly the only pension income that the Complainant has to rely upon in retirement is the State Pension and obviously this is a fact known to the Respondent.   The Respondent states the custom and practice in respect of compulsory retirement has been in place since 1986.   At that time employees such at the Complainant could have availed of a State Retirement Pension at age 65, which was paid until they reached age 66 when they would qualify for the State Old Age Pension.   It was on that basis that the majority of employees in most private sector employments retired at age 65 and was the basis of the 65 year of age retirement age applied.   However that has changed in recent years with the State Retirement Pension being abolished and no State Pension applying until age 66.   Despite this fact the Respondent did not amend their retirement age to Age 66 to take this fact into account.   Apparently the Respondent expects employees such as the Complainant to manage for a period of one year with neither wages nor pension - and even if such employees were to qualify for Jobseekers Benefit (which is by no means certain) that payment is both less than the State Pension and only lasts of 9 months, leaving a gap of 3 months with no benefits/income.

I cannot accept that to place the Complainant in such a position is either “appropriate or necessary” to achieve the legitimate aim or objectives of the Respondent, which could readily be achieved by having a retirement age of 66 years of age (or older) without the adverse effects described above.

In addition I note that the Respondent in their own submissions correctly refer to ECJ and other higher courts judgements on the matter relates to and refers to various national social policies, as defined and the connected eligibility and benefits of a pension payment (my emphasis) but fails to draw the obvious and logical conclusion and analogy with the position the Complainant finds himself in.   Plainly the only national social policy that could be intended by the withdrawal of the State Retirement Pension is that employees would now work until at least 66 years of age before retiring.

Based on the foregoing findings I issue the following decision.

In accordance with Section 79(6) of the Employment Equality Acts I find and declare that the complaint of discrimination is well founded and it is upheld.

In considering the appropriate redress I am guided by Article 25 of the recast Directive which provides that redress and penalties must be effective, proportionate and dissuasive.

I require the Respondent to reinstate the Complainant in his employment with effect from the date of the termination of that employment of 6^th January 2016, on the same pay and conditions of employment as he enjoyed immediately prior to that date, this will mean that there is no breach in the continuity of the Complainant’s employment with the Respondent; in addition I require the Respondent to pay the Complainant compensation in the sum of €6,500.00c for the effects of the acts of discrimination, this figure represents compensation for the infringement of his right under the equality legislation and is not wages or arrears of wages.

Dated:        6 July 2016