DEC-E2016-071

Employment Equality Acts

DECISION NO:  DEC-E2016-071

Martin McDermott (Represented by SIPTU)

V Irish Ferries Limited.  (Represented by Ms Rosemary Malllon B.L. Instructed by Arthur Cox)

Date of Issue: 6th  May 2016

1. DISPUTE 1.1 This dispute concerns a claim by Mr. Martin McDermott  (the complainant) that he was subjected to discriminatory treatment by Irish Ferries 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  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 6th March 2015 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 31st 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 Docker up to the termination of his employment on 31 January 2015. He submits that he had an exemplary record and carried out his duties professionally and diligently throughout his employment.   The complainant submits that during his employment he raised the issue of retirement with the Respondent on several occasions.   In January 2014 the Respondent wrote to the Complainant advising him that he was being retired in January 2014. 2.2. The complainant emailed the Respondent requesting that he should not be retired.  In August 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 his Union to ask them to have the matter clarified and they contacted the Respondent by telephone on the 25th of August 2014 and advised that the Complainant intended to work past his 65th birthday. 2.3 The Respondent replied by way of letter on 28th of August 2014. The letter stated inter alia that the Respondent had established a retirement date established by custom and practice and that the rules of the pension fund the “latest retirement age” is 65.  The complainant made further representations to the Respondent in October 2014 and early December 2014. The Respondent replied by letter on the 8th of December 2014 refusing the Complainant’s appeal to continue to work beyond the age of 65, the letter failed to provide objective justification for the decision. 2.4 The Complainant submits that he was subjected to discriminatory treatment by the respondent.   He submits that there was no contractual retirement age and no written contract was ever signed.  The complainant accepted that payments into the Pension scheme would cease on the anniversary of his 65th Birthday. The complainant does not accept that it implied a term into his contract. Legal Submissions 2.5 Notwithstanding the Complainants 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 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.   It is the complainant’s submission that the respondent could have availed of Section 6 (3) (c) of the Acts to facilitate the Complainant but they failed to do so. 3. SUMMARY OF THE RESPONDENT'S SUBMISSION 3.1 The Respondent submits that the Complainant does not have an individual contract of employment due to the fact that when he commenced employment with B&I Line Limited in 1984, as a Docker, his terms and conditions of employment were governed by collective agreements, initially, with the Irish Transport & General Workers Union and subsequently by SIPTU. The Complainant joined the British & Irish Steampacket Company General Pension Fund Association pension scheme on 1 June 1990.  The Respondent submits that  a copy of the explanatory booklet for the pension scheme provides that “Normal Retirement date is the last day of the month in which Member’s 65th birthday falls”. The pension scheme was subsumed into the Irish Ferries Limited Pension Scheme in January 2000.   3.2 The respondent submits that 65 is the standard retirement age for employees of the Respondent. Some employees have an option of early retirement from age 59. In the Complainant’s case, he had the option to take early retirement from age 61. 3.3 The respondent submits that on 8 January 2014, the Complainant sent an email to his manager, in which he stated “I wish to submit a request not to retire and to continue working beyond 16th January, 2015”. The respondent submitted that in January 2014, the Human Resources Manager informed the Complainant that “the Company’s ‘latest retirement age’ has not changed and therefore we cannot facilitate your request to work beyond your 65th birthday”. The letter further explained that “in line with longstanding custom and practice and under the Rules of the Pension Fund ‘latest retirement age’ is 65”. 3.4  On 23 October 2014, the complainant wrote to the respondent stating that he did not sign any form accepting or acknowledging his insertion into the Pension Plan” and that “he disagrees with being forced out of [his] employment due to reaching a certain age”. However, the Respondent submits that from 2008 onwards, the Complainant received personalised benefit statements from the Irish Ferries Limited Pension Scheme which refer to age 65 as the “Normal Pension Age” or the latest pension age. 3.5  The Respondent is not contesting that there is an implied retirement age or a retirement age long established by custom and practice.  The respondent submits that there is a substantial body of case law including McCarthy v HSE [2009 No. 1104 JR] and  Molloy v Connaught Gold UD891/2009 supporting  the position that the fact an employee’s contract of employment does not contain an express mandatory retirement age is not determinative that the employee was not subject to a mandatory retirement age.  3.6 The respondent submits that McCarthy and Molloy are highly relevant authorities for a number of reasons. Firstly, the pension scheme documentation referred to above constitutes strong evidence that the Respondent’s employees retire at age 65. Secondly, the Respondent’s employees have retired over the years upon reaching the age of 65 at the latest and such is its consistency that it constitutes a term of the Complainant’s employment. The Responden submits that a review of the last five years (2011-2015) shows that a total of 18 staff retired with 9 staff exercised their option to avail of their earliest retirement date i.e., between ages 59-63, and a total of 6 staff retired at their normal retirement date (age 65).  There were 3 exceptions during this period i.e. three employees who continued on for a period of six months maximum after their retirement age of 65 in order to complete specific projects and handovers.   The Respondent submits that they have no knowledge of any employee within any category employed by the Respondent or its predecessors, who continued in employment beyond age 65. 3.7 The respondent submits that it is of crucial significance in this case, that it was the Complainant who initiated discussions/correspondence in relation to his retirement by his email of 8 January 2014. In this email, the Complainant stated “I wish to submit a request not to retire and to continue working beyond 16th January, 2015”. It Is the Respondents contention  that if the Complainant was not aware of, or did not accept that he was subject to, a retirement age of 65, then why did he send an email requesting permission to work beyond 65?  3.8 The respondent submits that validity of Section 34(4) of the Acts has been upheld in numerous domestic and European cases. In particular, the decision of the European Court of Justice in Palacios de la Villa v. Cortefiel Servicios SA (Case C-411/05)  The respondent submits that I may not assume a legal entitlement to overrule a statutory provision.  Accordingly, it is respectfully submitted that I am bound by Section 34(4) of the Employment Equality Acts to dismiss the Complainant’s discrimination claim.

Objective Justification. 3.9 The respondent submits that the Court of Justice of the European Union and the Irish High Court have expressly addressed the issue of mandatory retirement ages and, in particular, have upheld the validity of a retirement age of 65 where the employer can demonstrate legitimate objective grounds justifying the imposition of retirement ages. 3.10 The Respondent submits the following reasons for maintaining a retirement date: a) It allows for the efficient planning of departure and recruitment of staff. In a large scale organisation such as the Respondent, this is essential to manage employment costs and resources; b) It ensures the organisation has a favourable age structure with a balance between the generations, thereby enabling older staff to pass on experience and younger staff to pass on recently acquired knowledge. Given the changing working models and new developments in the Respondent organisation, it is essential that there is a variety of generations with varying experience and skills to ensure that the service provided to the Respondent’s customers is of a high standard. In the absence of a retirement age, there would be an oversubscription of older employees, to which would distort the necessary age balance. c) It avoids disputes relating to employees' ability to perform their duties after age 65. Given the size of the Respondent and the disparity of roles, it would be administratively unworkable for the Respondent to engage in performance and health assessments for employees aged 65 and over. It would also create embarrassment and discomfort in the work place for affected employees. Furthermore, to engage in this exercise would require objective justification in itself. 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. At the hearing of this complaint, the complainant’s evidence in regard to the existence of a retirement age was inconsistent.  The complainant would not admit to knowing anything about his pension even though he was a shop steward and was advising others on their pension entitlements. Additionally,  he was in receipt of various correspondence regarding his pension which he admitted to receiving but did not bother to read. In his written submission the complainant submits that during his employment  he raised the issue of retirement with the Respondent on several occasions.    Having heard the evidence from both parties, I accept the account by the Respondent of an established retirement age, that the complainant was subject to it and that the complainant was at all relevant times aware of it.  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 which would allow me to depart from the 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. 4.6 In the instant case the respondent has sought to objectively justify a retirement age for workforce planning reasons as at 3.10 above.  These reasons apply to the Respondents entire work force, but at hearing specific information was given in regard to the work of a Docker which is the role occupied by the complainant. 4.7 The complainant insists that the role of Docker is not physically demanding.   Having heard direct evidence from the complainant and the appropriate manager on behalf of the respondent I am satisfied that the role of Docker is a very physically demanding and strenuous occupation.  I found the complainants evidence in this regard to be evasive and unreliable.  At the outset he insisted that his job was “just driving a truck”.  After lengthy questioning it emerged that the complainant’s job included many elements of manual labor including such tasks as actually tying up vessels to the quay  and levelling heavy containers manually.   The complainants evasiveness in this regard accompanied with his inconsistent evidence in relation to his knowledge of his pension has done much to undermine his credibility. 4.8 As I find that the complaint’s job  is  physically demanding and strenuous occupation, it follows that retirement polices in relation to this occupation must be specific and  appropriate and I do not find other administrative staff working for the complainant to be relevant comparators.  At the hearing the relevant manger (Manager X) gave direct evidence of the method in which the respondent managed the workforce planning of Dockers specifically.  It is the Respondents policy to monitor the ability of Dockers to carry out their duties and approach individuals who are struggling to discuss the option of early retirement.  I found Manager X’s evidence to be credible and consistent and I believe he carried out his monitoring of Dockers and the consequent discussions of retirement in a diplomatic and sensitive manner.  Taking the totality of the evidence from both parties into consideration but specifically the oral evidence of Manager X,   I am satisfied that the following are the relevant facts. 4.9  While the respondent has argued that in line with longstanding custom and practice and under the Rules of the Pension Fund ‘latest retirement age’ is 65, the reality is that the majority of Dockers never reach the latest  retirement age and instead choose to retire early due to the physical demands of the job.  Some employees have an option of early retirement from age 59 and the Complainant was aware of this.  It was the Respondent’s uncontested evidence at the hearing that, in general,  the performance of a most Dockers deteriorates significantly at an age much earlier than 59.  The respondent has facilitated the early retirement of Dockers in a flexible and considerate manner.  The respondent has not formalised a retirement age for Dockers based on formal medical evaluation as the existing system of monitoring has proven satisfactory to all parties in the past.   The latest  retirement age of 65 has arisen through a long history of established custom and practice. 4.10 The Respondents entire operation is dependent on the availability of a small number of Dockers.  The Respondent does not have any control regarding the age of incoming Dockers as appointments are controlled by a third party.  The age profile of the existing cohort of Dockers is not far from the possible early retirement ages.  Taking all of the above into consideration and given the reality of the significant early retirement of Dockers I find that the respondent must be allowed to fix a retirement age, otherwise workforce planning would be impossible.  4.11 Following on from the reasoning I have presented above I find that all of the points put forward by the respondent at 3.10 above when applied to the category of Dockers, in the context of this complaint serve a legitimate aim or purpose, are appropriate and proportionate. Therefore, I find that the respondent has objectively justified the established retirement age, primarily on the basis workforce planning reasons.  Therefor all aspects of the complaint including discrimination in relation to getting a job and dismissal must fail.   I find no evidence to support the claim of victimisation or dismissal for opposing discrimination 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 6th May 2016