ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00003071

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

Date of Adjudication Hearing: 17/01/2017

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Location of Hearing: The Kilmurray Lodge Hotel

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background

• This case is being taken by an employee of a University under section 77 of the Employment Equality Act, 1998 in relation to promotion. The Act prohibits direct and indirect discrimination and victimisation in employment on nine grounds one of which is age.

Summary of Complainant’s Case:

• The Complainant started his career with the Respondent as an Assistant Lecturer and was promoted to Senior Lecturer up to his retirement.

• The employee is subsequently employed on a part time basis.

• The Complainant claims to have been directly discriminated against by the provisions of the Public Services Pension Act 2012. This Act sets out a new compulsory age of 70 for all new entrants into the public sector. The Complainant states that he was compulsory required to retire at age 65 in September 2016.

• The Complainant states that he did not apply for a professorial appointment although he is qualified for the position because of the compulsory retirement age imposed on him.

• The Complainant argues that rules governing the compulsory age of retirement have altered significantly for many public servants since 1991.

• The Complainant stated that these rules do not apply to all employees and that a mandatory retirement age effectively discriminates between employees with similar jobs employed in the same institution.

• The Complainant stated that there are three groups of employees with different compulsory ages (or none) of retirement applied by the University.

• The Complainant stated the following:

• As the figures indicate at the professorial, Assistant Professorial and Senior Lecturer level university employees fall into three groups

  • Compulsory retirement at age 65

  • Compulsory retirement at age 70

  • No applicable retirement age

• The Complainant states that the three distinct retirement age groups are discriminatory

• The Complainant states that in the Employment Equality Act (EEA) the grounds to establish a compulsory retirement age must be ‘objectively justified’. The rules of superannuation schemes do not fall within this definition.

• The Complainant is arguing that he could have potentially been discriminated against if he had applied for the professorship position that arose in the department shortly before his compulsory retirement.

• The Complainant states that this anomaly will affect all those public servants (over 300,000) who have joined prior to 2012 and consequently will have a retirement age of 65.

• The Complainant suggests that promotion in the University is based on a merit based evaluation that takes into account their research teaching and administrative achievement.

• The Complainant states that the retirement from a position of associate professor does not create a new promotional position for younger staff and hence cannot be considered an objective consideration arising from compulsory retirement at age 65.

• The Complainant states that there is no basis for the reasoning for his retirement under the relevant section 34 (4) of the EEA and that there is no reference to superannuation schemes.

• The Complainant states that if the government concern is with facilitating employment for young people and the availability of promotional opportunities - why is the contributory retirement age being increased from 68 to 70 in the public sector.

• The Complainant states that senior academics in Universities tend to be older as knowledge and expertise are accumulated over a lifetimes work and that a universities reputation and standing usually depends substantially on its older senior academic staff and is often diluted by the compulsory retirement age.

• The Complainants key issue is others can choose to work on past 65 where as he could not due to the retirement age and that this effectively discriminates between employees with similar jobs employed in the same institution.

Summary of Respondent’s Case:

• The Respondent stated that the Complainant signed the Acceptance of Appointment to Post of Assistant Lecturer and outlined his retirement age to be 65.

• The Respondent states that retirement is consistent with the terms of the Superannuation scheme.

• The Respondent stated that members of the single public services pension who commenced their employment as new joiners post 1 January 2013 are not entitled to be members of the Superannuation Scheme, as is the case with the claimant and have a retirement age. The Respondent states that with such a scheme members are able to avail of their pension at the age of 66 and that there is no less favourable treatment as they are entitled to avail of their pension at the age of 66.

• The Respondent states that those that have to retire at 70 have a much less favourable super annuation scheme and can’t add years like the complainant can.

• The Respondent state that it does not depend on the employee’s age if they stay in the role but rather depends on the super annuation scheme terms of which they are a part of and the date they joined the scheme.

• In relation to the specific role this claim is linked to the Respondent states that the successful applicant was 64 and a member of the single public service pension scheme. His retirement age is 70.

• The successful applicant was in the same narrow age bracket as the Complainant and the Respondent then state, considering this, if they can be considered valid comparators at all.

• The Respondent claim that the Complainant was not at the grade of Professor and that it can be argued that Professors are therefore not an appropriate comparator given that it would be unlikely for a sitting Professor to apply for another Professorship.

• The Respondents submits that if the retirement age as per the Complainants employment at 65 is accepted as objectively justified, which it is submitted that it should - there is no basis to look any further in any alleged discrimination on grounds of age as that is a defence to the compulsory retirement of the Complainant.

• The Respondent argues that the Complainant has not being discriminated against. The retirement age is affixed to provide objective justification including social reasoning and the need for younger employees to be given the opportunity to work within specialised areas and within a sector which has limited scope for promotion.

• The Respondent refers to a number of cases including Vickers vs Daughters of Charity of St Vincent de Paul in which it was found that a government policy to cease funding the positions of FAS employees after the age of entitlement to a state pension was not discriminatory.

• They state the terms of the pension scheme require the claimant o retire at 65 and this is the objective justification.

Findings and Conclusions:

It has been outlined in the Complainants contract paragraph 4 of the Acceptance that “I have read the conditions of appointment and I agree to be bound by them.” This outlined the employees retirement age was 65 and was also linked to the superannuation’s scheme which is more favourable in relation of the new scheme in place in the university for those employed after 2012. It is clear the date the employee joins the scheme dictates the terms of the scheme and retirement age.

The Complainant stated that there is no objective grounds to justify his compulsory retirement age at 65. The Equality Act 2015 only permits the existence of a compulsory age of retirement where there is objective justification.

Under the 2015 Act section 34 of the Employment Equality Act 1998 has been amended as follows

Section 34 of the Act of 1998 is amended by the substitution of the following subsection for subsection:

It shall not constitute discrimination on the age ground to fix different ages for the retirement of employees or any class or description of employee if

Much evidence was presented by the Complainant in relation to retirement age in the Respondent University however the Adjudicator is not dealing with discriminative dismissal as the Complainants case related to promotion.

Section 8 (5)b of the Act states

(5) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—

(b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 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 Complainant is seeking Adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

A person who claims—

(a) to have been discriminated against by another in contravention of this Act,

The matter for the Adjudicator is to decide if the Complainant has been discriminated against by the respondent by not being able to apply for a promotion due to their age.

The Complainant is stating that he could have potentially been discriminated against if he had applied for the professorship position that arose in the department shortly before his compulsory retirement. The Complainant believes that he could not apply for this position a few months prior to his retirement age but this was not the case. The Adjudicator finds that a hypothetical case as the claimant was not prevented from applying for this post however he did not apply for it. He could have been successful in this appointment however due to pension scheme rules he would be required to retire at 65. The Claimant has however been re-employed after his retirement at 65 on a part time basis on a fixed term basis in line with the terms of the pension scheme. No conditions in entry required were outlined in relation to age which are specified in line with Section 8(5)b.

Therefore this claim fails.

Dated: 25^th April 2017

Workplace Relations Commission Adjudication Officer: Caroline McEnery

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