DEC-E2016-070

DEC-E2016-070

Employment Equality Acts

DECISION NO: DEC-E2016-070

Michael Chrzanowski

V

Transdev Dublin Light Rail Limited.

File Nos. et-150118-ee-14

Date of Issue: 5th May 2016

1. DISPUTE

1.1 This dispute concerns a claim by Mr. Michael Chrzanowski (the complainant) that he was subjected to discriminatory treatment by Transdev Dublin Light Rail Limited (the respondent) on the of the age ground in terms of section 6(2)(f) of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of those Acts when the respondent imposed a mandatory retirement age of 65. The complaint form also indicates discrimination in relation to getting a job, dismissal and dismissal for opposing discrimination.

1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on the 22nd October 2014 under the Acts. On 12th January 2016, in accordance with his powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission referred the case to me, Peter Healy, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. I proceeded to hearing on 24th March 2016. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.

1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83.3 of the Workplace Relations Act 2015.

2. SUMMARY OF THE COMPLAINANT'S SUBMISSION

2.1 The Complainant was employed by the Respondent, as a tram driver up to the termination of his employment on 3rd of October 2014. He submits that he had an exemplary record and carried out his duties professionally and diligently throughout his employment. In July 2014 following discussions with his Union representatives the Complainant raised the matter of his intention to continue to work past his 65th birthday. He believed that the Respondent was enforcing retirement at the age of 65. He approached the Union to ask them to have the matter clarified.

2.2 The Complainant’s representatives formally wrote to the Respondent by way of letter on the 18th of July 2014 and advised the respondent that the Complainant intended to work past his 65th birthday. The Respondent replied to by way of letter on 5th of August 2014. The letter stated inter alia that the Respondent had established a retirement age of 65.

2.3 On the 17th of August the Complainant formally raised the matter of his enforced retirement with Mr X, the HR Manager of the Respondent. Following a negative response the issue was raised formally by the Complainant through the grievance procedures. The matter was progressed through the grievance procedures but the Respondent’s decision was not to deviate from normal retirement age. This was conveyed to the complainant by way of letter on 1st of October 2014, two days before his enforced retirement.

2.4 The Complainant submits that he was subjected to discriminatory treatment by the respondent. The Complainant submits that he engaged grievance procedures which included an appeal to the managing director. Several options were proposed, however the Respondent would not facilitate the Complainant working beyond his 65th birthday. One of the options put to the Respondent was that the Complainant continue working for 2 years only. The Complainant believes that this was a measured and reasonable proposal. The respondent could have availed of Section 6 (3) (c) Employment Equality Act 1998 in this regard. However they would not facilitate the Complainant.

Legal Submissions

2.5 Notwithstanding the Complainant’s position that no retirement age existed in his contract of employment, he submits that the onus for objective justification on having a mandatory retirement age for the Complainant lies entirely with the employer. The complainant has presented jurisprudence on the need for objective justification and a number of cases where the respondents have failed to do so. The complainant submits the decision to retire an employee in circumstances where the decision is influenced by that person's age, constitutes direct discrimination on the grounds of age, as found in Petersen v Berufungsausschuss fur Zahnärzte fur den Bezirk Westfalen-Lippe Case C-341/08 [2010] E.C.R. I-00047.

2.6 The complainant refers to Council Directive 2000/78/EC, where in Article 4 it states:

Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate. In this regard the complainant cites the reasoning set out by McKechnie J in the High Court case of Donnellan v the Minister for Justice, Equality and Law Reform [2008] IEHC 467.

“Before finishing, I must say that comments as to the legitimacy of the measures utilized in this case, as is usual, turn wholly on the specific facts of the case and such comments should not be taken as supporting the general legitimacy of all mandatory retirement or appointment ages. As noted, national measures relating to compulsory retirement ages are not excluded from consideration under Directive 2000/78/EC. 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.”

2.7 The complainant’s representative has requested that I give particular consideration to C.I.E. train drivers as a hypothetical comparator.

2.8 It is the complainant’s contention that the Complainant has established a prima facia case of discrimination; therefore the burden of proof legitimately rests with the Respondent to prove the contrary. It is the complainant’s assertion that the employer in this instance did not have, objective justification and reasonable grounds, in the first instance, to justify a mandatory retirement age for the Complainant. The Complainant made suggestions to the Respondent to work for 2 years only. It is the complainant’s submission that the respondent could have availed of Section 6 (3) (c) of the Acts in this regard. However they would not facilitate the Complainant.

3. SUMMARY OF THE RESPONDENT'S SUBMISSION

3.1 The respondent submits that the complainant’s contract did not expressly provide for a retirement age, but a retirement age of 65 was an implied term of that contract. The respondent states that it had fixed the retirement age at 65 from the very beginning of its operation. The retirement age of 65 is reflected in the respondent's pension scheme, of which the complainant is a member; in the fact that it has been expressly contained in tram drivers' contracts since 2007; and in the respondent’s consistent practice of requiring employees to retire at age 65.

3.2 The respondent submits that section 34(4) of the Acts permits employers to fix retirement ages for different classes of employees.

3.3 The respondent submits that European law creates an obligation on Ireland to provide that, where an employer fixes a retirement age in respect of any particular class of employee, any employer who fixes such a retirement age must be able to objectively justify that retirement age. The Acts do not provide (at section 34(4) or otherwise) for any such requirement to objectively justify a retirement age that has been fixed by an employer.

3.4 The respondent submits that Equality officers have consistently held, since the decision of the CJEU in Palacios de la Villa v Cortefiel (Case C-411/2005), that section 34(4) of the Act of 1998 must be read as if it imposed an obligation on an employer to objectively justify a retirement age. The respondent submits that this position should be reconsidered in light of the recent decision of the Labour Court in the case of Seclusion Properties v O’Donovan DWT14114. In that case, the Labour Court clearly identified the limitations on its ability to interpret national legislation in a way that achieves a conforming interpretation with a directive. Similar limitations apply in this case.

3.5 In the event that the Tribunal does not accept the respondent’s above submissions, the respondent submits that it is in any event able to objectively justify the retirement age that it has fixed in respect of tram drivers. Tram drivers are “safety critical workers” within the meaning of the Railway Safety Act 2005. Because of the nature of their work, it is very important that they are in a position to perform their roles safely.

3.6 The respondent submits that it provides a range of measures to protect the health and safety of tram drivers, passengers and other people who come in contact with Luas. The respondent submits that these measures include a retirement age of 65 and that this retirement age is supported by the expert medical opinion of the respondent’s occupational health adviser and empirical evidence. The respondent submits that Tram drivers aged between 60 and 65 are more than 5 times as likely to be absent (due to illness or injury) than drivers age under 50. This level of absence illustrates the medial challenges posed to tram drivers by advancing age, and thus justifies the retirement age on grounds identified at Article 2(5) and 4(1) of the Directive.

3.7 The retirement age in question is objectively justified by legitimate aims within the meaning of Article 6(1) of the Directive. The age facilitates good workforce planning and equitable distribution of employment opportunities between generations. The retirement age coincides with the normal retirement age provided by the respondent’s occupational pension scheme.

4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER

4.1 The issue for decision by me is whether or not the respondent discriminated against the complainant on grounds of age, in terms of section 6 of the Acts and contrary to section 8 of those Acts in relation to dismissal and victimisation.

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 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.

4.3 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 ...".

4.4 Having heard the evidence from both parties, I am satisfied that the respondent had established a retirement age for tram drivers and the complainant was subject to it. It was established at the hearing of this complaint that the complainant logged on to a company website on a regular basis and was aware of regular correspondence relating to his pension and the established retirement age. Ultimately the Complainant wrote to the respondent requesting that he be allowed to work beyond 65. Having heard all of the details of this complaint I am satisfied that the complainant was at all relevant times aware of the established retirement age. Therefore, the Complainant has established a prima facia case of discrimination

4.5 I have considered all of the legal arguments put forward by both parties in regard to the application section 34(4) of the Acts and I find nothing in those arguments including an examination of Seclusion Properties v O’Donovan DWT14114 which would allow me to depart fromthe consistent interpretation that the section must be read as if it imposed an obligation on an employer to objectively justify a retirement age.

Objective Justification.

4.10 In the instant case the respondent has sought to objectively justify a retirement age for health and safety reasons and workforce planning reasons.

Health and Safety

Tram drivers are “safety critical workers” and the established retirement age is supported by the expert medical opinion of the respondent’s occupational health adviser. The occupational health advisor attended the hearing of this complaint and gave uncontested detailed evidence of the risks arising related to the age of tram drivers. I must accept his expert and independent opinion in this regard and I note his submission regarding the safety risks arising with advancing age including such issues a deterioration in reaction times. For this reason alone I find the respondents retirement policy serves a legitimate purpose and is proportionate. In addition it is submitted that tram drivers aged between 60 and 65 are more than 5 times as likely to be absent (due to illness or injury) than drivers age under 50.

In regards to the complainant’s submission that the respondent could have availed of Section 6 (3) (c) of the Acts. I note that on one occasion the respondent (inexplicably) ignored their own medical advice and allowed a driver to continue past the retirement age that the driver had medical issues and was unable to finish his contract. I find that it is reasonable that this one instance simply enforced the respondent’s decision not to deviate from a policy based on medical opinion.

Workforce Planning.

The Health and Safety argument overshadows the workforce planning arguments made by the respondent. While I accept the account put forward by Mr X at the hearing regarding the informal manner in which the respondent plans to replace retiring drivers, the respondent was unable to offer any documentation in this regard. However as I have already found that the respondent must have an established retirement age following medical advice, it follows that the workforce planning process is as informal as the respondent has indicated.

4.11 Hypothetical comparator.

The complainant’s representative has requested that I give particular consideration to C.I.E. train drivers as a hypothetical comparator when considering the respondents treatment of the complainant. It is clear that there are very significant differences between train and tram drivers duties and I find that as the independent and qualified medical advice used by the respondent pertained to LUAS drivers only and their specific duties, I do not think it appropriate to use such a comparator.

4.12 I find that the respondent has objectively justified the established retirement age, primarily on the basis of medical advice but also for work planning reasons. Therefor all aspects of the complainant including discrimination in relation to getting a job, dismissal and dismissal for opposing discrimination must fail. I find no evidence to support the claim of victimisation as set out under the Acts.

5. DECISION

5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the age ground has been established, and that the respondent has rebutted that presumption. In the circumstances outlined above, this complaint fails.

__________________
Peter Healy
Adjudication Officer

5th May 2016