ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004227

Complaints for Resolution:

Date of Adjudication Hearing: 15/11/2016                                                        

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 79 of the Employment Equality Act, 1998, and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under section 82 of the Act.

Background

The Complainant has been employed as a Clinical Psychologist with the Respondent from 5^th May 1998 until the termination of the employment on 6^th June 2016 on reaching 65 years of age. The Complainant referred a complaint to the Workplace Relations Commission on 29^th April 2016 alleging discrimination on the basis of age as he was required to retire at age 65.

The Complainant referred a further complaint to the WRC on 15^th November 2016, the date of the Hearing, again alleging discrimination on grounds of age. Both Parties at the Hearing agreed that both Complaints should be heard on 15^th November 2016 as it was the same complaint but was submitted after the alleged act of discrimination had occurred while the first complaint had been lodged before the alleged act of discrimination had occurred.

Summary of Complainant’s Position.

The Complainant has been employed as a Clinical Psychologist since 1998 and at the time of his compulsory retirement at age 65 he was earning €45,000.00 working 16/17 hours a week. In January 2016 he began discussions with the Respondent regarding his wish to continue working beyond his 65^th birthday. He emailed the Respondent on 2^nd March 2016 calling their attention to the Equality (Miscellaneous Provisions) Act, 2015 which had amended Section 34(4) of the Employment Equality Act, 1998 effective from 1^st January 2016. He requested the grounds for his forced retirement.

The Respondent responded on 31^st March 2016 stating that they had always operated a compulsory retirement age of 65, that this policy encourages a high retention rate by creating opportunities for promotion, that it creates intergenerational fairness and renewal of teams and recognises the dignity and respect due to all and avoids disputes regarding capacity and underperformance. The Complainant responded that he did not accept the grounds as set out and indicating his intention to refer a complaint to the Workplace Relations Commission.

IMPACT argued that relying on previous practice does not address the new requirements of legislation - that the staff handbook was produced some years after the Complainant had signed his contract, that the Respondent operates a flat hierarchical structure so the Complainant’s retirement does not create a promotion, that the experience of the Complainant adds to the service the Respondent can supply to clients and his capacity to perform has never been questioned.

Summary of Respondent’s Position.

The Complainant was employed by the Respondent as a Clinical Psychologist until his retirement on 6^th June 2016, his 65^th Birthday. The Respondent’s normal retirement age is set out in Contracts of Employment dated 25/2/1997 and 15/12/1998 and in the Respondent’s Employee Handbook. Therefore the Complainant was aware at all times of the normal retirement age.

In 2011 the Respondent began a reconfiguration process of its Counselling Team and this took place in consultation with IMPACT. The Complainant acted as the Trade Union Representative for IMPACT during the consultation and negotiations. As part of this it was agreed that the posts of Clinical Psychologist would be red circled on the basis that they would be phased out as the employees in these posts reached normal retirement age of 65 after which they would be replaced with accredited Counsellors. The Complainant as the Trade Union Representative agreed to this. This was expressly agreed in the reconfiguration discussions, which included the Complainant, that the Clinical Psychologists roles would be red circled and they would be replaced through natural attrition and would be replaced by accredited Counsellors

The Respondent met with the Complainant in January 2016 to discuss his upcoming retirement in June 2016. He subsequently questioned the validity of the Respondent’s normal retirement age of 65 years. The reasons for this were outlined to the Complainant in March 2016 as follows- “to provide conditions and supports to staff that result in a high retention rate, increased motivation and the opportunity for promotion – to create a balanced workforce which also ensures the organisation can effectively manage the departure and recruitment of staff – to ensure cohesion amongst all staff and create opportunities for intergenerational fairness and appropriate renewal of the various teams across the organisation and to uphold the Respondent’s values of dignity and respect for all the staff and to avoid disputes with employees around capacity and/or underperformance.

The Respondent argued there was ample case law both at European Court level and also in the Irish courts and they specified a number of cases.

Findings

Section 6(1) of the Employment Equality Acts, 1998 -2015 provides 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 grounds specified in subsection (2) in this Act referred to as the ’discriminatory ground’

Article 6(1) of Directive 2000/78 provides as follows – 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.

This has been given effect by S.I. 610 of 2015, Equality (Miscellaneous Provisions) Act, 2015 which amends the Employment Equality Act, 1998 at section 34 (4) as follows:

“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 if – (a) it is objectively and reasonably justified by a legitimate aim, and (b) the means of achieving that aim are appropriate and necessary”.

Contractual Retirement Age:   Both Parties confirmed at the Hearing that the Complainant had been issued with a Contract of Employment in 1997 and again in 1998 where at Retirement Age it states; - Retirement age will be 65 years of Age. Both Parties also confirmed that the Complainant had been issued with the Employee Handbook which states under Retirement as follows: The normal (named) retirement age for employees is 65 years. Employment with (named) will automatically terminate on the day of your 65^th birthday. You will be given all relevant information about your forthcoming retirement and the benefits you will receive in advance of your termination date. I am satisfied in all the circumstances of this case that the Respondent had a contractual retirement age of 65 years and the Complainant knew of its existence as it was set out in both Contract of Employment issued to the Complainant in 1997 and again in 1998. I am also satisfied that the Complainant was provided with the Employee Handbook which clearly references that the retirement age is 65 years of age.

Pension Scheme. The Parties also confirmed that the Complainant is a member of the Respondent’s Pension Plan which is a defined pension plan and this provides for a normal retirement date of members 65^th Birthday.

Collective Agreement.   Both Parties confirmed at the Hearing that the Respondent and IMPACT Trade Union commenced a consultation and negotiation process in 2011 on a 2 year strategic plan to re-orient the services of Counselling in 2012/2013. Both Parties confirmed at the Hearing that as part of this process agreement had been reached to red circle all Clinical Psychologists Posts until these posts could be filled by accredited Counsellors, following retirements and/or end of Clinical Psychologists Contracts. Both Parties confirmed at the Hearing that the Complainant had been the IMPACT Representative during these consultations and negotiations. While there is no written collective agreement between the Parties, other than the Counselling Strategy 2012 – 2013 provided to the Hearing, both Parties confirmed the Agreement. The Respondent confirmed that since the Agreement there have been two retirements, including the Complainant, and that both have been replaced by accredited Counsellors.

Decisions

CA-00004163-001-002

In accordance with Section 79(6) of the Employment Equality Act, 1998 – 2015 I declare this complaint is not well founded as the complaint was submitted to the Workplace Relations Commission on 29^th April 2016 which is prior to any alleged discrimination could have occurred as the Complainant did not retire until 6th June 2016

CA-00008194-001

Section 85 A (1) of the Act provides as follows:

Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.

The Framework Directive (which the Act of 2015 implements), prohibits any direct or indirect discrimination on the grounds of age under Article 2(2) of the Directive. However Employers can fix different ages for the retirement of employees (which would otherwise constitute age discrimination) provided they satisfy both elements’ of the Framework Directive’s derogation to the general prohibition of Article 2(2). The derogation entails two distinct criteria, which are set out at Section 34(4) of the Act of 2015 being – The retirement age must be objectively and reasonably justified by a legitimate aim of the employer and the means of achieving that are appropriate and necessary.

On the basis of the evidence I find that the Complainant has established a prima facie case of discrimination. The burden of proof now shifts to the Respondent to objectively justify in accordance with Section 34(4) of the Act.

Objective Justification Section 34(4) of the Act.

The Respondent set out in detail the reasons for the retirement age of 65 years. In summary these are –

The Complainant is a Clinical Psychologist providing a service in relation to Counselling Services provided by the Respondent and he was clearly informed of the normal retirement age within the Respondent Company.

In 2011/2012 when the reconfiguration of Counselling was being negotiated it was specifically discussed between the Parties, including the Complainant who was representing the IMPACT Trade Union, that the Clinical Psychologists role within Counselling would be red-circled and would be replaced through natural attrition when they retired at age 65 or their contracts expired and they would be replaced by accredited Counsellors

An accepted and known retirement age is necessary to provide conditions and support for staff that result in a high retention rate, increased motivation and the opportunity for promotion.

To create a balanced workforce which also ensures that the Respondent can effectively manage the departure and recruitment of staff

To ensure cohesion amongst all the staff and create opportunities for intergenerational fairness and appropriate renewal of the various teams providing Counselling across the organisation

To uphold the Respondent’s dignity and respect for all the staff and to avoid disputes around capacity and/or underperformance

These issues have been addressed in a number of key decisions of the Court of Justice of the European Union. In the Case C-411/05 Felix Palacios de La Villa and Cortefiel Servicios SA the Court examined the justification of a retirement age contained in a collective agreement and held as follows: 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 …in the area of retirement and employment…It does not appear unreasonable for the social partners to take the view that a measure such…may be appropriate for achieving the aims set out above…..Furthermore, the measure cannot be regarded as unduly prejudicing the legitimate claims of workers subject to compulsory retirement because they have reached the age-limit provided for…. 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…..

This issue was also addressed in Case C-250/09 and C-268/09 (joined cases) in Georgiev vTechnicheski Universite Sofia which involved a compulsory retirement age of 68 years for University Professors. At Paragraph 45 of this judgement the Court held that encouragement of recruitment undoubtedly constitutes a legitimate aim, in particular when the promotion of access of young people to a profession is involved. The CJEU held that the issue should be referred back to the National Courts to determine.

In another decision of the CJEU inFuchs and Kohler v Land Hessen Case C-159/10 and C-160/10 which concerned the compulsory retirement of Civil Servants at age 65 where the Court accepted that the aims of the Respondent 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 concerning older employees fitness to work beyond a certain age.

On the basis of the evidence and taking into account the case law of the Court of Justice of the European Union, and in accordance with Section 79(6) of the Employment Equality Act, 1998 as amended I declare the complaint is not well founded. The Respondent has in my view provided a full defence to objectively justify a normal retirement age of 65 years, including a Collective Agreement, which the Complainant was party to, which provided for the replacement of Clinical Psychologist Posts on their retirement at age 65 with accredited Counsellors.

Rosaleen Glackin

Adjudication Officer

Date: 8^th March 2017