FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : TRANSDEV LIGHT RAIL LIMITED (REPRESENTED BY BYRNEWALLACE) - AND - MICHAEL CHRZANOWSKI (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Mr McCarthy |
1. Appeal of Adjudication Officer's Decision No: DEC-E2016-070
BACKGROUND:
2. The appellant appealed the Decision of the Adjudication Officer to the Labour Court on 27 May 2016. A Labour Court hearing took place on 17 November 2016. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Mr Michael Chrzanowski (the Complainant) against the decision of an Adjudication Officer/Equality Officer under the Employment Equality Acts 1998 – 2011. The Complainant complained that he was subjected to discriminatory treatment on the age ground in terms of Section 6(2)(f) of the Acts and contrary to Section 8 of the Acts when Transdev Dublin Light Rail Limited (the Respondent) imposed a mandatory retirement age of 65 years. Further claims referred under the Act relating to (i) discriminated in relation to getting a job and (ii) dismissal for opposing discrimination on the ground of age were not pursued. This was confirmed by the Complainant’s representative at the hearing of the appeal.
The Adjudication Officer/Equality Officer held that the Complainant had established aprima faciecase of discrimination on the ground of age, however, he also found that the Respondent had rebutted that presumption. Therefore, he held that the Complainant’s complaint failed.
The complaint was referred to the Director of the Equality Tribunal on 22ndOctober 2014.
Background
The Complainant was employed as a tram driver from 6thMarch 2007 until the termination of his employment on 3rdOctober 2014, on his 65thbirthday. He claimed that by retiring him at age 65 he was subjected to discriminatory treatment by the Respondent. He submitted that there was no retirement age in his written contract of employment.
Summary of the Complainant’s Case
Mr Paul Henry, SIPTU on behalf of the Complainant, submitted that the decision to retire the Complainant in circumstances where the decision was influenced by his age, constitutes direct discrimination on the grounds of age, as found inDominicaPetersen v Berufungsausschuss fur Zahnarzte fur den Berzik Westfalen-LippeCase C-341/08 [2010] ECR 1-00047.
Mr Henry further relies on Directive 2000/78/EC Establishing a General Framework for Equal Treatment in Employment and Education (hereafter the Directive) in contending that the use of age as a criterion for less favourable treatment in employment constitutes unlawful discrimination. He submitted that national law, and in particular the Act, must be interpreted and applied in harmony with the Directive. He disputes the Respondent’s contention that the Respondent has obligations under the Railway Safety Act 2005 which require it to retire a worker at age 65. The 2005 Act requires the Respondent to ensure that safety critical workers must undergo an assessment by a medical practitioner to determine their fitness to perform safety critical tasks but does not stipulate that they must retire at 65 years.
Mr Henry said that the Complainant had a legitimate expectation that he would be allowed continue to work past his 65thbirthday, as there was no mention in the contract of employment that he would have to retire at 65 years and furthermore, there were precedents in the Company for workers to be retained. He referred to the fact that two persons were retained in employment by the Respondent beyond age 65 years. Therefore, he submitted that the Respondent had exercised discretion in their case and in its engagement with the Respondent sought similar treatment for the Complainant. Mr Henry submitted that in both cases the workers concerned were “safety critical workers”.
Mr Henry disputes the Respondent’s contention that health and safety concerns prevented the Complainant from being retained. The Complainant had a very good attendance record, he requested a fixed term contract for a maximum of two years and he was willing to be medically assessed on an ongoing basis.
Mr Henry also questioned the Respondent’s assertion that it was appropriate and necessary to have a retirement age in order to promote good workforce planning and to allow access to employment by means of better distribution of work between generations of workers. He disputes the Respondent’s reliance on information furnished to the Court which outlines that in January 2014, in planning for retirement and long term absences, the Respondent sought permission to recruit four new tram drivers commencing 24thFebruary 2014. Mr Henry questioned how the Complainant’s request to be retained, could impact on the Respondent’s workforce planning, where he was only one of three workers facing retirement who was making such a request.
The Complainant raised the issue of the Complainant’s request to be retained with management, on a number of occasions prior to his 65thbirthday, however, Mr Henry contended that the Respondent gave no serious consideration to proposals made by the Complainant in this regard.
In support of its contention that the Respondent’s objective grounds for having a retirement age were not genuine, the Union cited a number of authorities where it was held that there were no objective grounds to substantiate an employer having a retirement age. Mr Henry citedSweeney v Aer Lingus TeoDEC-E2013-135 where an Equality Officer found that the Respondent had failed to rebut the presumption of age discrimination. Mr Henry submitted that this case was of particular relevance as in that case the Respondent had failed to include details of a retirement age in the complainant’s contract of employment and moreover, it held that entitlement to a pension does not of itself necessitate retirement.
Mr Henry relied upon the CIE companies, Iarnrod Eireann and Dublin Bus, as comparators. He said that a direct comparison can be drawn with a train driver in Iarnrod Eireann who is allowed to work to age 66 years. This increase from 65 to 66 years was provided for inC�ras Iompair Éireann Pension Scheme for Regular Wages Staff (Amendment) Scheme (Confirmation) Order2016, S.I. No. 63 of 2016.
Summary of the Respondent’s Position
Mr Loughlin Deegan, Solicitor, Byrne Wallace Solicitors, on behalf of the Respondent stated that 65 is the established retirement age for all employees in the Company. This practice has been consistently applied and is an implied term in the Complainant’s contract of employment, as reflected in the Respondent’s pension scheme, of which he is a member. It has been expressly contained in all tram drivers’ contract of employment since 2007. The Complainant has been a member of the Veolia Transport Limited Retirement Solution Plan since 25thApril 2012. This specifically states“your normal retirement age (NRA) is 65 years”.
Mr Deegan relied upon Section 34(4) of the Act, whichprima facie,allows a Respondent to fix a retirement age without contravening the prohibition of discrimination on grounds of age.The Directive imposes an obligation 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.He submitted that the validity of Section 34(4) of the Acts had been upheld in numerous national domestic and European cases, he cited the CJEU casePalacios de la Villa v Cortefiel Servicios SA,Case C-411/05.
In assessing the question of whether the retirement age that was examined inPalacios de la Villaconstituted an appropriate and necessary means of achieving the legitimate objective being pursued, the CJEU said the following:-
- "It does not appear unreasonable for the authorities of a Member State to take the view that a measure such as that atissue in the main proceedings may be appropriate and necessary in order toachievealegitimate aim in the context of national employment policy, consisting in the promotion of full employment by facilitating access to the labour market.
Furthermore,the measure cannot be regarded as unduly prejudicing the legitimate claims of workers subjecttocompulsory retirement because they have reached the age-limit provided for; the relevant legislation is not based only on a specific age, but also takes account of the fact that the persons concerned are entitled to financial compensation by way of a retirement pension at the end of their working life,such as that provided for by the national legislation atissue in the main proceedings,the level of which cannot be regarded as unreasonable."
Mr Deegan cited the caseWolfvStadt Frankfurt am Main (Case-229/2008),wherethe CJEU determined that a maximum recruitment age for fire services personnel was not precluded by the Directive. The CJEU determined that“the fire-fighting and rescue duties which are part of the intermediate career in the fire service can only be performed by younger officials"and therefore comparative youth was a genuine occupational
requirement. The maximum recruitment age could therefore be justified by reference to Article (4). Mr Deegan said that the CJEU did not address Article 2(5), notwithstanding that a justification on health and safety grounds might also have been available.
InSaundersvCHC Ireland Ltd DEC-E2011-142the Equality Officerreferred to theWolfdecisionin reaching a decision that a retirement age of 55 that applied to a category of emergency services personnel (helicopter winchmen) was justified by reference to Article 4(1) of the Directive.
Mr Deegan contended that the retirement age in question is objectively justified by legitimate aims within the meaning of Article 6(1) of the Directive. He cited a number of authorities in support of his contention. He said that the agefacilitates good workforce planning and equitable distribution of employment opportunities between generations. Furthermore, he submitted that as provided for underArticle 2(5) there is a "a genuine and determining occupational requirement" for a tram driver to be young enough to carry out his or her role safely and therefore the retirement ageis permitted by reference to Article 4(1).
Mr Deegan outlined for the Court details of available medical evidence which evidence indicates that the age of 65 is an appropriate age to have set as a retirement age for tram drivers and is also the age at which benefits are available under the occupational pension established by the Respondent. He said that the evidence suggests thatadvancing age of tram drivers can give rise to health and safety concerns and suggests that there is a concern that the ability to safely operate a tram may diminish with advancing age. This medical opinion is reflected in the frequency of health surveillance examinations which tram drivers undergo. These are medical examinations that include the completion of a medical questionnaire by the employee; a full physical examination by, vision/hearing exam, urine test for drugs and alcohol, a cardiac screen (resting and/or exercise ECG) and a lung function (spirometry) examination.
- Tram drivers who are under the age of 50 are required to undergo this examination not less than every five years.
- Tram drivers who are aged 50 and over but who are not yet 60 are required to undergo this examination not less than every three years.
- Tram drivers who are under the age of 65 are required to undergo this examination not less than every two years.
Part of the way in which the Respondent protects the health and safety of its employees, passengers and other members of the public is by ensuring that safety critical workers (including tram drivers) are fully capable of carrying out their functions. This is achieved by a range of measures, including (but not limited to):
- (a) appropriate pre-employment medical screening;
(b) periodic medical examination of safety critical workers;
(c) compliance with theSafety Health and Welfare at Work Act 2005;
(d) compliance with theRailway Safety Act 2005;
(e) performing regular checks, such as unannounced drug and alcohol screening.
Mr Deegan stated that the Respondent does not have a custom and practice which permits tram drivers to remain as employees after age 65. He told the Court that on one occasion a tram driver, Mr B, was permitted to remain in employment after reaching the age of 65. In that case, Mr B was retained on a one year fixed term contract after his due date of retirement. However, within a few months he suffered a heart attack and retired. A second person employed as a Revenue Protection Officer, was allowed to remain in employment after age 65 however, he was not a tram driver. Mr Deegan informed the Court that Revenue Protection Officers had been categorised as a “safety related role” within the Respondent’s Safety Management System (SMS) which was audited and certified by the Railway Safety Commission.
Mr Deegan stated that the High Court inDonnellan v Minister for Justice Equality and Law Reform and others [2008] IEHC467 set out guidance for determining how an objective justification advanced in respect of a retirement age is to be assessed. The Court summarised the applicable law by saying that the aim pursued by the person setting the retirement age must be rational and legitimate and the measure used in pursuit of that aim (i.e. the retirement age and the manner in which it is applied) must be a proportionate (i.e. appropriate and necessary) means of pursuing that aim.
The Respondent submitted that it is able to objectively justify the retirement age that it has fixed in respect of tram drivers on grounds identified at Article 2(5) and 4(1) of the Directive.The aims pursued by the Respondent for the retirement age of 65 years are as follows:-
- i.Tram drivers are "safety critical workers" within the meaning of theRailway 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, to ensure the protection of the health and safety of tram drivers, passengers and members of the public.
ii.It promotes better access to employment by means of better distribution of work between the generations; it allows for efficient workforce planning; new drivers were recruited in anticipation of the retirement of the Complainant and others.
iii.Medical opinion suggests that advancing age gives rise to health and safety concerns; it suggests that the ability to safely operate a tram may diminish with advancing age.
Mr Deegan disputed the point raised by the Union that CIE was an “associated employer” of CIE and accordingly could be cited as a comparator for the purposes of the Act. Section 2(2) of the Act provides as follows:-- “(2) For the purposes of this Act, two employers shall be taken to be associated if one is a body corporate of which the other (whether directly or indirectly) has control or if both are bodies corporate of which a third person (whether directly or indirectly) has control.”
Mr Deegan confirmed that :-- (a) The Respondent does not control CIE.
(b) CIE does not control the Respondent.
(c) The Respondent and CIE are not (directly or indirectly) controlled by any third person.
Section 6(1) of the Employment Equality Acts 1998 and 2004 (the Act) provides, in relevant part, as follows: -
- ‘‘(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—
- (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’)
which—
(i) exists,
(ii) existed but no longer exists,
(iii) may exist in the future, or
(iv) is imputed to the person concerned,
- (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’)
(4) Without prejudice to subsection (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.
Subsection (3) deals with occupational benefit schemes and is of no relevance to the issues arising in this case.
The Act gave effect in domestic law to Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (the Directive). Recital 14, 25 and Articles 2 (5), 4(1) and 6 (1) of the Directive are of particular relevance to the instant case.
Recital 14 provides: -
“This Directive shall be without prejudice to national provisions laying down retirement ages.”
- The prohibition of age discrimination is an essential part of meeting the aims set out in the Employment Guidelines and encouraging diversity in the workforce. However, differences in treatment in connection with age may be justified under certain circumstances and therefore require specific provisions which may vary in accordance with the situation in Member States. It is therefore essential to distinguish between differences in treatment which are justified, in particular by legitimate employment policy, labour market and vocational training objectives, and discrimination which must be prohibited.
- "Notwithstanding Article 2(1)and 2(2),Member States may provide that a difference in treatment which is based on a characteristic referred to in Article 1 shall not constitute discrimination where, by nature of the particular occupational activities concerned or of the context in which they are carried out, such acharacteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate."
- 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.
Issues for Consideration by the Court
Existence of a contractual retirement age
Section 34(4) of the Act,prima facie,allowed the Respondent to fix a retirement age without contravening the prohibition of discrimination on grounds of age. The jurisprudence of the CJEU on the circumstances in which compulsory retirement is saved by Article 6 of the Directive is relevant only if the Court finds that a retirement age was in fact fixed by the Respondent and that the retirement age applied to the Complainant.
It is accepted that the Complainant’s contract of employment did not contain any express term as to retirement. The Respondent told the Court that at the commencement of its operations in 2003, contracts of employment issued to workers did not contain details of a retirement age, although it did operate a pension scheme which specified such an age. The terms of which scheme had been collectively agreed with the recognised trade union for employees of the Respondent. Furthermore, the Respondent said that from 2007 all contracts of employment contained such details.
InEaragail Eisc Teoranta v Richard LettEDA1513 the Court held that as a matter of general principle, a termination of employment by way of retirement should be distinguished from a dismissal on grounds of age. A retirement occurs where the employment comes to an end pursuant to a condition of employment which limits an employee’s tenure to the point at which they attain a specified age. It held that a term of employment regarding a retirement age, within the provision of Section 34 (4) of the Act, can be provided in an employee’s conditions of employment either expressly or by implication.
In the instant case, while the Complainant’s contract of employment did not specify a retirement age, he was provided with and signed a copy of the collective agreement between the Respondent and the Union. This document provided details of the Group Pension, Life Assurance and Disability Scheme. The Complainant opted not to join the latter scheme until 2012, when he was provided with details which explicitly stated that the retirement age was 65.
It is clear to the Court that from at least the date he joined the scheme, he was aware of the existence of the retirement age; he was furnished statements of his pension contributions on an annual basis which clearly specified the retirement age. Furthermore, the Complainant accepted that contributions into the pension scheme would cease on his 65thbirthday.
In support of its contentions, the Union cited a number of authorities. Mr Henry citedSweeney v Aer Lingus TeoDEC-E2013-135 where an Equality Officer found that the Respondent had failed to rebut the presumption of age discrimination. Mr Henry submitted that this case was of particular relevance as in that case the Respondent had failed to include details of a retirement age in the complainant’s contract of employment. However, in that case the Equality Officer held:-
- “although her contract of service does not contain an express provision stating a retirement age, I find that 65 was the implied retirement age for all of the respondent’s non-flying staff and that an appropriate provision can be inferred into the complainant’s contract.”
It seems to the Court that through custom and practice the policy of retirement age at 65 was established by the Respondent and that this was accepted by the Complainant. All workers who retired from the employment did so at age 65. Furthermore, the Respondent confirmed that all of the tram drivers who had retired at 65 (approx. 10) did so during the tenure of the Complainant’s employment having previously worked in the same job category/grade as the Complainant. On a discretionary basis two workers were taken back on fixed term contracts. The first person to reach retirement age in the Company in 2010 sought to be retained in employment beyond his retirement age, he was a tram driver and on that occasion discretion was used by the Managing Director leading to a fixed term contract. Unfortunately that person suffered a heart attack within a few months. One other person, a retired Revenue Protection Officer, was also permitted to work beyond his retirement age, in this case the Respondent stated that an exception was made as he was not regarded by the Respondent as a safety critical employee protected by the Railway Safety Act. As that person was not employed as a tram driver and was not engaged in tram driving duties, the Court does not consider that person as comparable.
Some months prior to his retirement, with the assistance of his Union, the Complainant sought to extend his employment post 65 years on a fixed term basis, as provided for by Section 6 (3) (c) of the Act. In this case the Respondent gave serious consideration to this request. It engaged in discussions with the Union regarding the possibility of a collective agreement to extend the normal retirement age for all employees, (including the Complainant and all other tram drivers). This exercise took into account the changes to the State Retirement Pension Benefit. The Respondent sought medical opinion on the implication of extending the age and explored the feasibility of extending its insurance-related benefits to employees older than 65 with its insurance brokers. They responded to say that some of the products currently provided to tram drivers would not be available to tram drivers who were over 65. Both the expert medical opinion and empirical evidence demonstrated that the ability to safely operate trams diminishes with advancing age. Based on the findings, the Respondent decided that the appropriate course of action was to maintain its retirement age of 65 and the Union’s request was denied.
In all the circumstances the Court is satisfied that the Respondent had a contractual retirement age in respect of the Complainant and that the Complainant knew or ought to have known of its existence. The Court sees no merit in the Complainant’s argument that he had a legitimate expectation of working beyond age 65. Therefore, the Court finds that the Respondent can avail of Section 34(4) of the Act.
- Comparators
The Union cited CIE employees as relevant comparators for the purposes of this claim. Mr Henry citedC�ras Iompair Éireann Pension Scheme for Regular Wages Staff (Amendment) Scheme (Confirmation) Order2016, S.I. No. 63 of 2016 which amended the pre-existing 1957 pension scheme, inter alia, to provide an extension of the normal retirement age from 65 to 66, with effect from 1stApril 2016.
In the first instance the Court notes that this amendment took effect from 1stApril 2016, whereas the claim before the Court relates to an alleged discriminatory act which took take on 3rd October 2014, therefore cannot be taken into consideration by the Court and secondly the Court is satisfied that CIE companies are not “associated employers” as defined by Section 2(2) of the Act and accordingly are not appropriate comparators for the purposes of the Act.
Therefore, the Court cannot accept the proposition that CIE is an appropriate comparator.
- Objective Justification
InPalacios de la Villathe Court of Justice held that the retirement age in issue in the main proceedings was lawful where, in accordance with Article 6 of the Directive: -
- -[T]he measure, although based on age, is objectively and reasonably justified in the context of national law by a legitimate aim relating to employment policy and the labour market, and-the means put in place to achieve that aim of public interest do not appear to be inappropriate and unnecessary for the purpose.
The Court notes that the terms of the pension scheme were arrived at through collective agreement with the Union and with two exceptions the retirement age has been consistently applied since the inception of the Company in 2003.
- - Health & Safety Concerns
Article 4(1) of the Directive permits difference of treatment where it is a genuine occupational requirement. The Court must examine whether the imposition of a retirement age on the Complainant who was a tram driver was justifiable as a genuine and determining occupational requirement under Article 4(1) of the Directive.
The Respondent stated that the Complainant as a tram driver was a safety critical employee, governed by the Railway Safety Act 2005 and its retirement age policy has been set to take into account the safety related nature of its operations. To that effect it has sought medical opinion on two occasions, in 2010 and again in 2014, as to whether its retirement age of 65 was appropriate and based on the medical opinion and on its workforce planning requirements, it decided against extending the retirement age.
The Respondent furnished the Court with aletter dated 2ndFebruary 2015 from Dr John J McDermott, specialist in occupational medicines and medical advisor to the Respondent for more than 10 year. This letter suggests thatadvancing age of tram drivers can give rise to health and safety concerns. Dr McDermott suggests that there is a concern that the ability to safely operate a tram may diminish with advancing age. He says that these observations are supported both by medical opinion and by empirical evidence.
Among otherthings,Dr McDermottadvised the Respondent of the following:-
- "I believethe current age of 65 is appropriate in the context of this extremely
responsible safety critical role where medical standards are quite exacting for
obviousreasons.”
“It iscleartomethat our drivers are (understandably) accumulating medical
issuesastheyadvance in years and are longerin service and it becomes more challenging for them tomeet the required medical standards."
" age associated changes and visual perception are associated with
conditionsthatincrease the risk of driving for older workers.There is a
tendency the vision field contract so that stimuli in the preferable
[peripheral] vision may not be noticed (even though standard formal eye test may notrevealadefect)."
"somedrivers with long periods of service will have accumulated multiplemedicalissues (i.e.it is possible they would have failed their pre-employment medicalhad
these conditions existed at that time).Ithas proved challengingto managethese
medical conditions satisfactorily to allow them to continue in their roleswhile not compromising public safety."
The Railway Safety Act 2005 provides a definition at Section 93 of a “safety critical task”: -
“Safety critical task means a task specified in paragraph (i), (ii), or (iii) when performed in the course of the operation of a railway undertaking.
(a) in the course of a person's employment with the undertaking,
(b) under a contract of services with the undertaking,
(c) in the course of a person's employment with a person who has a contract of services with the undertaking, or
(d) voluntarily or otherwise,
namely—
(i) driving a train, or in any other way controlling or affecting the movement of a train,
(ii) controlling, affecting or managing, the movement of persons on a train, on a platform, across a level crossing, or, the boarding of, or alighting from, a train of persons, or
(iii) working in a maintenance capacity (as defined in subsection (2)) or as a supervisor of, or look-out for, persons working in such capacity;”
And “safety critical worker” is defined as
“means a person who performs a safety critical task
“For the purposes of this Part andPart 9, a person works in the course of the operation of a railway undertaking in a maintenance capacity, if his or her work in the operation involves installation, maintenance, repair, alteration or inspection of, railway infrastructure or trains, or involves coupling or uncoupling trains or performing a pre-departure examination of trains.”
InWolfthe CJEU determined that to impose an upper age limit for recruitment to the fireservice was a genuine and determining occupational requirement under Article 4 (1) of the Directive. In the instant case, the Court notes that the medical opinion furnished, which was not disputed by the Union, associatesage related changes and visual perception withconditionsthatincrease the risk of driving for older workers. In such circumstances, the Court accepts that to impose an upper age limit on the retention of tram drivers in order to protect the health and safety of drivers, passengers and the general public is reasonable in the circumstances and can constitute genuine and determining occupational treatment and is legitimate and proportionate. The Court finds that the Respondent has set out reasonable grounds that objectively justify a retirement age of 65 for tram drivers (including the Complainant) who are classified as safety critical employees, in the interest of the safety of drivers, passengers and the public.
- -Promotion of Workforce Planning and Access to Employment for a new Generation of Workers
The Court accepts that it is not unreasonable for employers to have a legitimate interest in workforce planning. InRosenbladtv Oellerking Geb�udereinigungsge GmbH (Case C-45/09) [2011] I.R.L.R. 51the CJEU examined the justification of a retirement age contained in a collective agreement, it held:-
- "By guaranteeing workers a certain stability of employment and, in the long term, the promise of foreseeable retirement, while offering employers a certain flexibility in the management of their staff, the clause on automatic termination of employment contracts is thus the reflection of a balance between diverging but legitimate interests, against a complex background of employment relationships closely linked to political choices in the area of retirement and employment. ... It does not appear unreasonable for the social partnerstotake the view that ameasure such [the provision containing the retirement age] may be appropriate for achieving the aims set out above".
The Respondent relied uponPalacios de la Villawhich held that in assessing the question of whether the retirement age constituted an appropriate and necessary means of achieving the legitimate objective being pursued, the CJEU said the following:-
- "It does not appear unreasonable for the authorities of a Member State to take the view that a measure such as thatatissue in the main proceedings may be appropriate and necessary in ordertoachievealegitimate aim in the context of national employment policy, consisting in the promotion of full employment by facilitating accesstothe labour market.
Furthermore, the measure cannot be regarded as unduly prejudicing the legitimate claims of workers subjecttocompulsory retirement because they have reached the age-limit provided for; the relevant legislation is not based only on a specific age, but also takes account of the fact that the persons concerned are entitled to financial compensation by way of a retirement pensionatthe end of their working life, such as that provided for by the national legislationatissue in the main proceedings, the level of which cannot be regarded as unreasonable."
The CJEU decision ofFuchs and Kohler v Land Hessen C-159/10 and C-160/10) [2011] I.R.L. R. 1043 concerned the compulsory retirement of civil servants where the aims were to achieve a balance between the generations, plus the efficient planning of the departure and recruitment of staff, encouraging the recruitment or promotion of young people, and avoiding disputes about older employee’s fitness to work beyond a certain age.
In the instant case, the Respondent demonstrated for the Court how the Respondent conducts its workforce planning in the case of tram drivers. In January 2014, over eight months before the Complainant’s retirement, to ensure the Respondent met its manning levels - levels which were agreed with the Union which required it to employ 173 tram drivers at any time, it sought approval for the recruitment of extra drivers. Due to the impending retirement of the Complainant (and others), it sought to recruit additional tram drivers commencing from 24thFebruary 2014. This action was required in order to ensure that the new drivers were properly trained prior to the Complainant’s (and others) retirement.
Taking account of the medical opinions advanced coupled with the workforce planning requirements and the collectively agreed pension scheme, the Court is satisfied that a compulsory retirement age of 65 for tram drivers was reasonable and appropriate in the circumstances. Furthermore, it accepts that it constituted a legitimate aim of employment and labour market policy in order to prevent possible disputes concerning tram driver’s fitness to work beyond a certain age.
Determination
The Court accordingly determines that the Respondent acted in compliance with Section 34(4) of the Act, the compulsory retirement age of 65 applied to the Complainant was necessary reasonable and proportionate and accordingly amounted to objective justification for that maximum retirement age. Accordingly the Court affirms the Decision of the Adjudication/ Equality Officer and rejects the appeal.
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
Caroline Jenkinson
29 November 2016______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.