ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002190

Complaint(s)/Dispute(s) for Resolution:    

 Date of Adjudication Hearing: 28/06/2016

Workplace Relations Commission Adjudication Officer: Emer O'Shea 

Procedure: 

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Attendance  

Complainant’s Submission and Presentation:

 The claimant was employed as a General Operative earning €420 per 39 hour week and had worked for the respondent and the previous employer since 1998.It was submitted that the respondent had discriminated against the claimant on the grounds of age on her 65^th.birthday when they compelled her to retire. The claimant had originally worked for Catering Company X but was transferred under TUPE to the present employer in 2004.Following an agreement with SIPTU in 2004 , the claimant reverted to the respondent’s terms and conditions of employment and the collective agreement specified “ That all ex Catering Company employees will revert to the respondent’s terms and conditions of employment and no reversal to previous conditions is possible”. The 2^nd.provision in the agreement specified “Those terms and conditions are as outlined on a sheet circulated and attached”.

The 5^th.provision of the agreement states “ once agreed upon , ex staff will be treated exactly as other airport staff in all ways , including payment for full rostered days etc. ”The claimant was issued with a permanent full time contract of employment as a Newsagent and Catering Assistant with effect from Mon.14^th.Sept.2009.

When the claimant received notification of her retirement date on the 19^th.Feb.2015 , she responded that as there was no retirement date on her contract , she wished to continue working to age 66 as the respondent’s employees had done previously. The respondent advised that the retirement age was 65.The union submitted to the respondent that there was no objective justification for imposing a 65 year retirement age and argued that it was not practise for employees to retire at age 65.It was submitted that the respondent had refused to engage with the union on the matter and the claimant was left with no option but to leave when her employment was terminated on the 15^th.Feb.2016.

It was submitted that the claimant had a prima facie case as her employer dismissed her at 65 even though her contract of employment did not specify a retirement age.She had a legitimate expectation of working to 66 and nominated 2 comparators who retired at age 66 and age 69 respectively.

The union invoked a number of Equality Tribunal decisions to support their contention that public and private sector employers must be able to objectively justify the imposition of normal retirement ages. It was submitted that no evidence had been advanced to demonstrate that the discrimination of the claimant served any legitimate purpose. The claimant was fit and healthy and had no impediment that would adversely affect her work. It was submitted that the enforced retirement had challenged the claimant’s self worth and self confidence and it was contended that the foregoing submissions demonstrated that the claimant had met the burden of proof required under the Act and that the facts were of sufficient significance to raise a presumption of discrimination.

In response to the supplementary submission from the respondent the union advanced that it is correct that the claimant was not a member of the “in-house” pension scheme which was introduced by the respondent in 2011 and not 2010 as set out in Mr Brennen’s letter. The claimant did not join the scheme as it was introduced too late in her working life for it to be of any financial benefit to her. As is so the claimant did not actively participate in any detailed discussion in relation to the pension scheme and was not aware that said scheme contained a retirement age of 65 years.

It was submitted that that the respondent has no grounds on which to objectively justify the claimant’’s forced retirement despite the respondent’s reference to Paul Doyle v ESB International Limited.

The union attached for consideration a recent Adjudication Officers decision Reference: ADJ-00001463 in relation to a colleague of the claimant’s who worked for the respondent and was forced to retire on similar grounds.

Respondent’s Submission and Presentation: 

1. Background: 

1.1 The airport commenced operations in 1986. The airport is owned by a public trust - where any dividends/profits (when there are any; experience shows there have more losses over the years) are reinvested in the company and there are no private shareholders. The airport directly employs 140 staff today; this number increases in summer months with the addition of many temporary staff. Some staff return the following summer and others do not. The key & unique aspect of Ireland West Airport is that the airport is directly involved in all aspects of the day to day running of the airport. Some of the critical operational functions include, Air Traffic Control, Fire & Security, Airline Ground Handling Services, Aircraft Refuelling, and Technical & Navigation Services. Other commercial functions also include Retail & Catering Services.

1.2 It has been the accepted custom & practice of the airport since 1986 that employees retire when they reach the age of 65 .

1.3 The airport maintains a blanket retirement age to ensure consistency among all of its employees and to create a certainty in succession planning for the airport. It is important that the airport plans ahead to find suitable replacement for workers who leave or are coming up to retirement age. There are a number of departments within the airport and in particular fire fighters and ground services personnel, which require that some of their tasks such as fighting fires, rescuing people, loading and unloading cargo from an aircraft, require exceptionally high physical capabilities. According to regulation (EU0 No 216/2008) it is an essential requirement for the aerodrome operator that, ‘all rescue and firefighting personnel potentially required to act in aviation emergencies shall periodically demonstrate their medical fitness to execute their functions satisfactorily, taking into account the type of activity’. 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 from the airport. All employees in the other regional airports retire at 65. There is a huge variety of roles within the airport and we cannot have different employees from different departments retiring at different ages. There needs to be a uniform retirement age of 65 here at the airport and we have one.

1.4 The claimant was originally employed by a previous employer from 1998 to 2003. A transfer of undertakings followed the takeover by the airport of the catering outlets.

1.5 The claimant’s terms and conditions transferred over to the airport as part of the transfer of undertakings and all her original terms and conditions were transferred. As part of her terms and conditions with the previous company, it is clear that their terms include that employment shall not continue past their 65^th birthday. It was submitted that the airport does not wish to set a precedent by allowing someone to stay beyond the normal retirement age.

1.6 The claimant was initially employed in the catering department as a catering assistant. She became a permanent full time employee in 2006 –. On the first of September 2009 the claimant’’s position as a catering assistant was combined with that of a retail assistant’s position within the airport .In January 2011 , the claimant injured her right wrist and thumb .The doctor’s report found that she finds it hard to use her right hand in anything that requires a grip especially cleaning, hovering, and holding things between the thumb and the index finger, like holding plates and knives. Following the report, the airport took all possible actions to facilitate the claimant as she was now unable to fully fulfil her duties in catering. To provide her with full employment, she transferred fully over to the retail department and the airport made significant adjustments to her working conditions in the retail area ensuring that her duties did not impact on her previous disability. Mrs. O’Toole took a personal injury claim against the airport and received compensation through the injuries board for her injuries.  

The airport provides a travel retail service to passengers on airside in the Duty Free departures area and also landside in the main terminal building.The claimant would have worked primarily in landside in the newsagency. However during the winter schedule she did pick up shifts to supplement her hours in the departures duty free shop. The overall turnover for retail in 2015 was €1.5m. The role within the newsagents is a standalone position and their role is to insure that the premises and displays are well maintained and stocked. The work in both retail outlets is busy and involves a lot of standing and bending and stretching when restocking displays or showing goods to customers.

The setting of the retirement age at 65 is appropriate and necessary in the circumstances of the job role and the duties required .As part of their duties there is substantial manual handling involved within the department with regards to handling bulk deliveries through a dedicated screening section in the retail store room. Large stock items are unpacked, arranged and rotated in the correct manner. There can be long periods of standing at cash tills where over the summer schedule (April to October) the flight schedule would dictate that some working days would be up to 12 hours in duration. There is considerable bending and twisting of the lower back when dealing and showing customers particular displays, products and packing of customer merchandise. The airport have made substantial adjustments and have been very proactive in accommodating the claimant’s needs, from the time she sustained her injury. The airport wish to avoid the need to terminate an employment contract in situations which are humiliating for workers by reasons of their advanced age, thus preserving their dignity and avoiding humiliation and the need to avoid costly disputes about capacity or underperformance.

1.7 The airport would like to acknowledge that the claimant’s service during the period of her employment was good. However, it was submitted that the claimant was aware that the custom and practice of the airport is that people retire at 65 . The claimant would have attended many of the internal retirement gatherings. The airport submits that the claimant would have had first-hand knowledge for the applicability of the normal retirement age of 65 to every employee including herself. Two colleagues from her own department and three from her previous department (catering) have retired recently and the claimant would have attended their retirement dinner, which is part-funded by both the airport and the staff. The claimant would also have been present when the Operations/Commercial Manager as is customary, presents the retiree with a gift and also makes a speech thanking them for their hard work and service at the airport. The claimant on her retirement requested that no speech or presentation take place for her retirement.

1.8 The airport has a well-established practice of compulsorily retiring its employees when they reach 65. In one exceptional circumstance, an employee who was retired at 65 was re-engaged on a fixed-term contact for a stand-alone capital runway overlay project. While they were remunerated by the airport 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 instant case.

1.9 There is one exception in the list of retirees at the airport. Another staff members 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 passenger numbers increased by 73,080 from 2007 to 2008. The airport did not plan accordingly for her retirement and thus her employment was extended by 11 months. However no such circumstances exist in the claimant’s case.

1.10 The airport does not fix different ages for retirement of its employees and does not discriminate between different grades of employees on age grounds for its retirement age .

1.11 In parallel with this is the need to free up positions so that younger workers can enter the airport and have a defined career path where their ambitions can be realised. The lack of new young entrees to the airport would have an adverse effect not only on the retail department, but all departments within the airport, especially critical ones like the fire service, security, ground services and customer service. This would not only have an effect on productivity but also on health & safety.

 1.12 The airport fully believes in creating promotional opportunities for more junior staff. The airport’s preference is always to promote from within and job vacancies have always been posted internally first. Internal promotion is good for staff morale .

1.13 The respondent set out Examples of promotional opportunities directly related to retirement:

(i)                  Night Security:

Worker A retired on 29/03/2016 after 27 years in Security / Night Security

Worker B replaced him. Position was internally advertised. There were five interviews. Worker C who worked in Ground Services on an If & When contract, has now moved into Night Security, rotating two weeks on nights and one week on days.

(ii)                Night Security:

Worker D retired on 26/06/2011. This left opportunities for three staff members who work in Ground Services on If & When contracts, to be trained up & pick up extra shifts on nights to supplement their hours in Ground Services. He was replaced on a ad hoc base by these three Staff Members from Ground Services who are on If & when contracts so that they could supplement their hours during the quieter winter period.

(iii)               Property Services:

Worker E who was the manager retired on 26/02/2008. Replaced by Worker F an internal candidate .

1.14 As the airport is the main employer within the local area, it endeavours to establish a balanced aged workforce to ensure that motivation and dynamism is at the core of each department. This can be increased with the prospect of promotion within each department. Over half (54%) of the current staff within the retail department are under the age of 25 - There have to be opportunities for people to grow and progress within the airport. The staff turnover rate for permanent employees is very low. Our average turnover rate from 2013 to present is 2.7%.

1.15 The airport says that it has shown that it is necessary and proportionate to retire employees at the age of 65 in the interest of the business to provide promotional opportunities, to encourage staff morale and to create certainty in succession planning. The claimant was informed of her retirement on the 19^th of February 2015 –On the 03^rd of March 2016 Manager A received an email from the claimant confirming that she had received her letter and that she would not be taking up the offer of early retirement unless we had a redundancy package in mind - and the response from the Human Resource Manager. There were several other correspondences in June 2016 in which the claimant stated that she wished to continue working after her 65^th birthday and the response from the Human Resources Manager which was simply that the policy of the airport is that the retirement age is 65 and that all her other colleagues had retired at 65 the year before . 

2. Company Position

2.1 The Complainant is alleging that she has been discriminated on the grounds of age regarding the issues as outlined above and that she was discriminatorily dismissed from her employment on the 15^th February 2016, as a result of the respondent applying its policy on retirement age and of also retiring other employees who had reached their 65^th birthday. Her last day of work was the 15^th of February 2016 and we paid out all outstanding monies owed. Her retirement was 15th of February 2016 i.e. her 65^th birthday

2.2 The Employment Equality Act, 1998 defines the term “age” and what is meant by the                                     term “discrimination”.

“Direct discrimination” is defined as occurring, where one person is treated less favourably then another is, has been or would be treated and that person is of a different age than another person. Direct discrimination consists of two elements. The first is the less favourable treatment of the individual making the complaint; the second is the existence of age grounds for that treatment. Both elements must be satisfied for a claim of age discrimination to succeed.

“Indirect discrimination” is deemed to occur where an apparently neutral provision puts persons of a particular age at a particular disadvantage compared with other employees. There is no evidence to show that the complainant has been indirectly discriminated against either.

2.3 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 an Equality 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 becauseshe has failed to provide objective evidence demonstrating she was treated differently and discriminated against on the basis of age, not sanctioned under the law in Ireland.

2.4 The Tribunal and Labour Court have consistently found that it must first decide whether the Complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. The Court has held consistently 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 an inference of discrimination can be drawn. The Court elaborated on the interpretation of Section 85A in Melbury v Valpeters EDA/0917 where it 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".

2.5 Furthermore, the Complainant made absolutely no representations whatsoever, either formal or informal, in relation to the inclusion of a retirement age within the contract.

2.6 It has been the accepted custom & practice of the airport since 1986 that employees retire when they reach the age of 65 .

2.7 Also, the Respondent refers to Sweeney V Aer Lingus Teo DEC-E2012-135 “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”

2.8 Section 34(4) of the Act has been amended by the Equality Act 2015 S.10 and in effect put an a statutory basis what had become the interpreted case law in practice and what was considered to be in line with the Directive. 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.

2.9 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. This is clearly seen in Palacios de la Villa v Cortefiel Servicios SA and “Age Concern” V Secretary of State for Business Enterprise and Regulatory Reform. These judgements, and the more recent judgement in Torsten Hörnfeldt v Posten Meddelande AB examine largely the modalities of employees and state social policy aims, and it is presumed employers have to act in a like manner. This is not necessarily so. In Seldon v Clarkson, Wright and Jakes, the United Kingdom Supreme Court said (April 2012), 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. The Supreme Court held that whilst a compulsory retirement age was potentially a directly discriminatory measure, it was capable of justification where 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. Legislation can, as the ECJ made clear, give some discretionary powers or a degree of flexibility to employers. An employer could therefore have slightly mixed motives, as long as their actions were consistent with the government’s overall social policy aim.

2.10 The retirement of persons at age 65 was justifiable on the basis of the Health and Safety, and the physicality of the work involved. Newsagents & retail staff are required to load, and unload bulk deliveries through the dedicated screening section in the retail storage area. The work in both retail outlets involves a lot of standing and bending and stretching when restocking displays and showing goods to customers.

2.11 The Respondent denies direct or indirect discrimination arises in this case. Further, the Complainant has not provided any evidence to meet the legal tests to support such a claim.

2.12 As the Complainant has not established a prima facie case of discrimination on the grounds of age, the Respondent requests that the Equality Officer reject this Complainant’s allegation under the Employment Equality Acts 1998 and 2004/2015

2.13 In a later submission , the respondent highlighted that by her own choice the claimant had not joined the company pension Scheme which provided for a 5% contribution by the company and a 5% contribution by the worker.Currently 53 employees were signed into the Scheme.

2.14 In the later submission it was further submitted that DEC-E2012-086 Paul Doyle v ESB International Limited supported the company’s arguments on objective justification – specifically with respect to career progression, retention and cohesion.It was submitted that in that case the Tribunal had found that a legitimate employment policy entitled the respondent employer to maintain a retirement age that ensures cohesion and that career paths could ensure retention, motivation and dynamism.The relevant extracts from the decision were set out.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) 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.

The matter for decision is whether or not the respondent in terminating the claimant’s employment on her 65^th.birthday discriminated against her on the grounds of age , contrary to the provisions of the Act.In arriving at my decision , I have taken into account the evidence submitted at the hearing and all of the oral and written submissions presented.

The Act sets out the burden of proof which applies in claims of discrimination – providing in effect that where facts are established by or on behalf of a complainant from which discrimination may be inferred , it shall be for the respondent to prove the absence of discrimination. 

I note that the claimant’s contract of employment makes no reference to retirement at age 65.The claimant’s employment was terminated on the basis that she had reached her 65^th.birthday J.McKechnie held in Donnellan v The Minister for Justice, Equality and Law reform [2008]IEHC 467 that the termination of an employees retirement solely on reaching a particular age constituted direct discrimination on grounds of age contrary to the Acts.Consequently I am satisfied that the claimant has discharged the initial burden of proof required and the respondent must rebut the inference of discrimination.McKechnie further determined in Donnellan that any discrimination with regards to age must serve a legitimate aim or purpose and the means taken to achieve that purpose must be appropriate.

On the basis of the evidence presented I am satisfied that the claimant was aware that the normal retirement age was 65.I find that the respondent put forward plausible explanations for the 2 aberrations from this practise.The respondent has submitted that the retirement age of 65 was legitimately justified by health & safety imperatives , career progression and cohesion.I did not find the arguments in relation to health and safety concerns compelling as they were not solely pertinent to older workers and had universal application.Additionally I am not convinced that the career progression justification was convincing in circumstances where the claimant did not occupy a promotional post.I do however accept that the matter of cohesion is a legitimate objective.

I have considered whether the means adopted – i.e. compulsory retirement at 65 years , is appropriate and necessary.I have concluded that no compelling reason was advanced to support the contention that the foregoing means was either appropriate or necessary to achieve cohesion.

Accordingly I uphold the complaint and find that the respondent discriminated against the claimant on the grounds of age.I require the respondent to reinstate the claimant with effect from the 15^th.Feb.2016.I further require the respondent to pay the claimant €4,500 compensation for the distress caused by this breach.

Dated: 16^th November 2016