EDA1631

Background

Irish Ferries Limited operates maritime passenger and freight services between Ireland and the UK and France. It employed the Complainant as a docker.

Under the terms of the respondent’s pension scheme the complainant was due to retire from work on 31 January 2015 on reaching age 65 which was normal retirement age. To this end the complainant engaged in correspondence with the respondent seeking an extension beyond age 65. The respondent refused to grant an extension and the Complainant’s employment was terminated on reaching his 65^thbirthday.

Complaint

The Complaint referred a case to the Equality Tribunal on 6 March 2015 complaining that the Respondent discriminated against him on the age ground contrary to section in terms of section 6(2)(f) of the Employment Equality Acts and contrary to section 8 of those Acts when it imposed on him a mandatory retirement age of 65. The Respondent defended the complaint arguing that it at all times acted in accordance with law.

Adjudication Officer

The matter came before the Adjudication Officer on 31 March 2016. He decided as follows

“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.”

The Complainant appealed against that decision to this Court.

Complainant’s Case

The Complainant submits that the decision to retire him from work at age 65 against his will amounts to discrimination on the age ground contrary to section 8 of the Act. He submits that he was in good health and was capable of discharging his duties. He further submits that having indicated his desire to remain at work beyond age 65 it was incumbent on his employer to take steps to determine whether he was capable of undertaking the work for which he was employed. He submits that it failed to undertake any enquires of this nature and instead proceed to dismiss him from his employment simply because he had reached 65 years of age.

He submits that he had no contract of employment and accordingly had no contracted retirement age. He submits that the retirement age set out in the pension scheme had not been incorporated into his contract of employment. He submits that age 65 was the age at which his pension entitlement crystalised but that it did not amount to a definitive date on which his employment would terminate. He drew a distinction between his entitlement to a pension under the terms of that scheme and the date on which his employment would be terminated on the age ground.

He submits that he had developed a legitimate expectation that his employment could and would be extended beyond age 65. He submits that a number of other employees had had their employment extended beyond that age and that as he was in good health and capable of discharging his duties he was of the reasonable expectation that his employment would be so extended.

He submits that he notified the respondent in good time of his desire to remain at work beyond age 65. He submits that despite those notifications the respondent did not take any steps to engage with him to extend his employment but instead dismissed him simply because he had reached 65 years and without regard to his capacity to continue at work.

He submits that taken together the actions of the respondent amounted to discrimination on the age ground as it made no attempt to determine whether the decision in his case was objectively justified.

He cited case law in support of his position which will be dealt with later.

Respondent’s Case

The respondent denies that it discriminated against the complainant on the age or any other ground.

It submits that it has a long established policy, custom and practice of retiring staff at age 65. It submits that it has in place a pension scheme that provides income in retirement for staff on reaching the retirement age. It submits that the pension scheme was concluded by way of collective bargaining with the trade union representing the complainant and that he was aware of its contents and of its terms and conditions. It submits that the complainant was particularly aware of the policy as he had acted a shop steward on behalf of the workers employed in the grade of docker and had been involved in negotiations regarding pay and conditions of employment.

It submits that while 65 is normal retirement age the Complainant had the option of retiring at any age between 61 and 65 years. It submits that the complainant was aware of this and refers to an email he sent to the respondent on 8 January 2014 in which he stated “ I wish to submit a request not to retire and to continue working beyond 16 January 2015.” It submits that this note establishes that the complainant was aware that 65 was the established retirement age.

It submits that the respondent rejected the request noting the long standing custom and practice and under the Rules of the Pension Fund the latest retirement age is 65 and that it would be operating in compliance with that practice and within those rules.

It further submits that the work of a “Docker” is arduous and that the retirement age in place is reasonable and proportionate in all the circumstances of the case. It submits that it is set at an age at which a person's capacity to undertake such arduous work is becoming compromised. It submits that it would be unreasonable to require it to allow a person continue working until s/he was incapable of performing their duties and refers the Court to the decision of the CJEU in the Rosenbladt case.

It further submits that the decision to fix a retirement age for this class of worker is consistent with Section 34(4) of the Act and that it is otherwise necessary reasonable and proportionate in that it facilitates the efficient planning of the departure and recruitment of staff. Furthermore it s necessary for the efficient operation of the business in that it ensures a mix of generations of staff so as to promote the exchange of experience and new ideas within that area of operation which is essential to the survival of the business.

Finally it refers to Court to the established case law in this area which it submits supports its position.

The Law

Section 6 of the Act states

Discrimination for the purposes of this Act.

• 6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

  (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

  (f) that they are of different ages, but subject tosubsection (3)(in this Act referred to as “the age ground”),

• 8.—(1) In relation to—

  (a) access to employment,

  (b) conditions of employment,

  (c) training or experience for or in relation to employment,

  (d) promotion or re-grading, or

  (e) classification of posts,

  an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

Article 6

• Justification of differences of treatment on grounds of age

  1. Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.

  Such differences of treatment may include, among others:

  (a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;

  (b) the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment;

  (c) the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.

  2. Notwithstanding Article 2(2), Member States may provide that the fixing for occupational social security schemes of ages for admission or entitlement to retirement or invalidity benefits, including the fixing under those schemes of different ages for employees or groups or categories of employees, and the use, in the context of such schemes, of age criteria in actuarial calculations, does not constitute discrimination on the grounds of age, provided this does not result in discrimination on the grounds of sex.

Section 34 of the Act states

• 34(4) Without prejudice tosubsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees.

In this case the Respondent fixed a retirement age ranging from a minimum 59 years to a maximum of 65 years of age. The Court finds that terms of the pension scheme were arrived at through collective agreement with the relevant trade unions. The Court further finds that the retirement age has been universally applied to this category of staff whose work is acknowledged by both sides to be arduous and physically demanding.

The Court further finds that the Respondent has set out good grounds that objectively justify the selection of those ages for this category of staff. Those grounds include the arduous nature of the work which becomes increasingly difficult with age. The setting of a maximum working age of 65 at this time ensures that staff are not exposed to the embarrassment of finding themselves incapable of discharging their duties and being retired in that context rather than with dignity and respect. With increasing longevity and improving health in older people these ages may require review and possible upward adjustment.

Furthermore the Court is aware that there are moves at national level to increase the retirement age progressively to 68 years of age.

Noting that the pension scheme at issue in this case is integrated with the Old Age or Retirement Pension provided by State the retirement age will require review in that context as the objective justification cited above would no long hold were staff retired into poverty or penury at age 65 some years before they qualified for state benefits. However those contingencies are not material in this case.

The Court sees no merit in the Complainant’s argument that he had a legitimate expectation of working beyond age 65. The Court finds that the Complainant was at all times aware that he was a member of a pension scheme that required that he retire at age 65 at the latest unless that age was extended in “exceptional circumstances” by his employer. He was also aware that no one employed as a “docker” had been so extended. Moreover the Respondent had made it clear at all times that it would rigidly apply the maximum retirement age in this case and to this category. Accordingly the Court finds no evidence to support the Complainant’s contention that he had any basis for the claimed legitimate expectation.

The Court accordingly determines that the Respondent acted in compliance with Section 34(4) of the Act and that the retirement age it applied in this case was necessary reasonable and proportionate and accordingly amount to objective justification for that maximum retirement age. Accordingly the Court affirms the decision of the Equality/Adjudication officer and rejects the appeal.

Determination

The Court determines that the Complaint is not well founded and affirms the decision of the Adjudication/Equality Officer.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
23rd November 2016______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.