ADJUDICATION OFFICER DECISION 

Adjudication Reference: ADJ-00008524

Parties:

Complaint(s):

Date of Adjudication Hearing: 22/01/2018

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015 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).

Background:

Summary of Complainant’s Case:

In September 2016 the Complainant made an enquiry to his manager when he was expected to retire from the company as it was not stated in his contract of employment. From that time to 15th February 2017 he had not received any answer to his query. On the 15th February 2017 the complainant was handed a letter dated 25TH January 2017 by his manager stating that he had to retire on the 29th March 2017 at the age of 65. He stated in the letter that it was according to Company policy that the Complainant would have to retire at the age of 65.

The Complainant looked up his copy of his employment contract and could not find any reference to any company policy that states that employees had to retire at the age of 65. On the 22nd February 2017 the Complainant sent a letter to the data controller of his company requesting a copy of the policy document that states that employees had to retire at 65.

On the 27th February the Complainant received a letter from a Director of the company which stated that the Complainant had received a copy of the company handbook when he signed his contract of employment on the 12th December 2012.The Complainant has stated that he has never received a copy of the company handbook. The Complainant believes that he had a reasonable expectation that he would be able to work until he was 66 years of age.

The Complainant is a fit man for his age which can borne out by the fact that he was playing golf at least three to four days a week following his forced retirement on the 29th March 2017. The Complainant would have been expected to be available for full time work whilst collecting his Jobseekers Benefit payment from the Department of Social Protection. The Complainant has acquired work with another company since doing the same type of work. Compensation sought is one year’s salary. €27.000 as per his contract of employment.

Recent Labour Court decisions highlight the importance of specifying retirement ages in contracts of employment. The Court found that dismissing an employee for their age was an act of discrimination.

In the case of (Connaught Airport Development Limited t/a Ireland West Airport, Knock and John Glavey), Mr Glavey had worked for the airport as a senior bartender from 1991 until his dismissal. He was originally employed by Campbell Catering and transferred to the employment of the Connaught Airport Development Limited in 2003 when it took over the airport’s catering services.

Mr Glavey’s employment contract with Campbell Catering did not include a retirement age. In 2006, nearly three years after the transfer, following negotiations between management and the union, Mr Glavey was issued with a new contract of employment. This contract did not specify a retirement age either.

According to Mr Glavey, it came as a complete surprise to him when he was informed that he would be retiring in January 2016 on his 65th birthday. Mr Glavey argued that, due to the increase in the age of receipt of the state pension from 65 to 66 years, there was still a requirement on him to be available for work and that there was no justifiable objective reason for the employer to terminate his employment. He also argued that no legitimate aim or objective could be served by not allowing him to remain in work until he reached 66. Mr Glavey pointed to two employees who had remained in employment following their 65th birthday.

The Court found that there was no express term in his conditions of employment requiring Mr Glavey to retire at the age of 65, noting that the employer had numerous opportunities to include such a provision. The Court found that the employer had not provided any evidence to demonstrate that Mr Glavey had been informed of the retirement age or provided with any documentation from which this could be discerned. The Court did not accept that a retirement age of 65 had been implied or incorporated into Mr Glavey’s contract of employment.

The Court held that the employer had not fixed a retirement age and that Mr Glavey had been dismissed because of his age. In view of this, there was no requirement for the Court to consider any of the employer’s arguments of objective justification for a retirement age of 65. The complainant was awarded a sum of €6,500 for the effects of the act of discrimination, having clarified to the court that he did not seek reinstatement.

In Brian Buggle (complainant) v City of Dublin VEC (respondent): DEC-E2014-041 Equality Tribunal Decision, 11 June 2014, [2015] 26 E.L.R. 43, (June 11, 2014), the Complainant was a teacher in the area of health and safety employed by the respondent for nine years until his retirement upon attaining the compulsory retirement age in 2011. In August 2011, the complainant applied for a part-time teaching post in the area of health and safety however, shortly thereafter was informed that he had not been shortlisted for interview by the respondent.

The complainant asserted that the reason he was not called for interview was that the respondent is under instruction from the Department of Education to hire newly qualified teachers over retired teachers, notwithstanding that he possessed the relevant skills and qualifications where other candidates did not, and that this amounted to discrimination on the basis of his age contrary to the legislation and the relevant Council Directive.

Determined by the Equality Tribunal in upholding the claim of the claimant:

• (1) The complainant had established a prima facie case of discrimination on the grounds of age and so the burden of proof shifted to the respondent to establish objective justification.
• (2) Whilst the departmental circular was compliant with the concept of objective justification, the manner in which the respondent applied the departmental circular was a departure from the normal procedure and facilitated inadvertent and unconscious discriminatory treatment, particularly in circumstances where the candidates called for interview did not meet the criteria set down by the respondent.
• (3) The complainant was discriminated against on the basis of his age in not being shortlisted for interview and the respondent failed to objectively justify its decision not to shortlist the complainant for interview.
• (4) The complainant was awarded compensation of €8,000.
• (5) Obiter dictum : Whilst it is not the function of the Equality Officer to determine who the most meritorious candidate for a position might be, the respondent could only have made an informed decision in relation to an appropriately qualified teacher following an assessment of each candidate at interview stage.

Therefore there can be no justifiable objective reason for the firm’s decision to place the Complainant in such a position, and no legitimate aim or objective, can be served which could not be achieved by allowing the Complainant to remain until he reaches 66 years.

Summary of Respondent’s Case:

The Respondent is a family business involved in the sale and distribution of parts and accessories throughout Ireland through its network of distribution centres. It employs approximately 100 people.

The Complainant was employed by the Respondent pursuant to a Contract of Employment dated the 13th December 2012 as a Paint Colourist / Counter Assistant at the Respondents premises. A copy of the Complainant’s Letter of Appointment dated the 13th December 2012 and Contract of Employment was provided.

As part of the Complainant’s induction to his employment he signed a sheet dated the 24th July 2012 acknowledging that he had signed his Contract of Employment. A copy of this induction sheet was provided. The letter dated the 13th December 2012 contains the following statement:

“All employee policies and procedures are contained within (Respondent) Handbook which will be made available to you upon commencement of employment with the Company. Should you have any queries regarding any further information please do not hesitate to contact me.”

The Complainant was also provided with a copy of the Respondents Employee Handbook and Basic Rules / Policies document at the time he commenced his employment and a copy of which was provided. Clause 2.1 at page 2 of that document provides the follows:

“2.1.1 Your offer letter, together with Terms & Conditions detailed in this Handbook form your Contract of Employment with (Respondent).”.

Tab 4.1.3 of the Employee Handbook provides as follows:

“Normal retirement age is 65 but may be reviewed by the Company.”

On the 25th January 2017 the Respondent’s Depot Manager and the Complainant’s Line Manager wrote to the Complainant to inform him that the Company will be starting the process of his retirement with effect from the 29th March 2017 in accordance with the policies of the Company. The Complainant was due to reach his 65th birthday on the 29th March 2017.

On the 22nd February 2017 the Complainant wrote a letter addressed to the “Data Controller” of the Respondent seeking a copy of the Companies Policy containing the provision that he was contractually obliged to retire at 65.

On the 27th February 2017 a Director of the Respondent Company wrote to the Complainant referring him to the relevant extracts of his Contract of Employment and the Company Handbook which contains a contractual provision that the employee’s retirement age is 65. The Complainant responded by way of letter dated the 8th May 2017stating that he is requesting a copy of his employment file and in particular a copy of the policy stating that all employees of the Respondent are required to retire at age 65. On the 18th May 2017 a Director of the Respondent wrote to the Complainant setting out the Company’s response to this letter and in particular drawing his attention to the provisions requiring the employee to retire at age 65. The employee was subsequently provided with a copy of his personnel file.

The Complainant himself openly discussed and acknowledged throughout his employment that he would be retiring on his 65 birthday. In October 2016 he approached his Manager seeking confirmation that he would be retiring at his 65 birthday and the Manager reverted to him with that confirmation.

The Complainants complaint comes before the WRC seeking adjudication under Section 77 of the Employment Equality Act 1998. The specific details of the Complainants complaint are as follows;

“In September 2016 I made a request to my Manager regarding when I was expected to retire as it was not stated in my Contract of Employment. To this day I have not received an answer to my request. On the 15th February 2017 I was handed a letter by my Manager stating that I had to retire on the 29th March 2017 at the age of 65. It stated in the letter that it was according to the policy of the Company. On the 22nd February 2017 I sent a letter to the Data Controller of the Company requesting a copy of the policy document that states that the employee had to retire at 65. I have not received a reply to the said letter.”

The Complainant has also indicated that he has been discriminated against by his employer but has not provided any specific details in relation to that discrimination.

Insofar as the Complainants complaint is understood it appears to be that he wrote to the Companies Data Controller on the 22nd February 2017 requesting a copy of the policy document that states that employees had to retire at 65 and that he had not received a reply to that letter. The Respondent submits that it did reply to the Complainants complaint by way of letter dated the 18th May 2017 and that in that letter it provided the Complainant with the information that he had requested.

The Complainant also claimed that he is being discriminated against by reason of his age and he has alleged that the Respondents treated him unlawfully by discriminating against him in dismissing him for discriminatory reasons.

The burden of Proof rests with the Complainant to establish in the first instance a prima facia case of discrimination. In that regard he must establish that he is covered by the discriminatory ground, that the alleged discriminatory treatment has occurred and he must show that the treatment of him was less favourable than that which would have been afforded to another person in similar circumstances. It is submitted on behalf of the Respondent that the Complainant has not established a Prima Facia case and that therefore the burden of proof has not shifted to the Respondent. The Complainant in this case as is clear from the evidence had incorporated as an express term into his contract of employment an agreement to retire from his employment at the age of 65. It was for that reason that the Complainants employment came to an end and there is therefore no inference of age discrimination in this case.

It is well accepted that in Irish Law notwithstanding that discrimination on the grounds of age is prohibited in EU law by Article 13 of the Treaty and Framework Directive. In cases involving retirement there is the statutory provision as contained in Section 34(4) of the Employment Equality Act 1998 which states;

“It shall not constitute discrimination on the age ground to fix different retirement ages for retirement (whether voluntary or compulsory) of employees or any class of description of employees”

The blanket defence as set out in this section can only be relied upon if the Respondent employer can provide objective and reasonable justification for having a fixed retirement age, and that the means of achieving this are appropriate and necessary.

The Respondent company in this case with a broad range of employees working in its head office in X City and across its depots throughout the country. It has incorporated a standard contractual provision into its contracts of employment providing for the retirement of its employees at the age of 65. It has adopted this policy in order to promote access to employment for younger people and to uphold the principle of intergenerational fairness, and to ensure cohesion amongst employees in having one retirement age.

It is therefore submitted on behalf of the Respondent that the Complainant was not discriminated on the grounds of age and that he retired in accordance with the contractual requirement to do so as contained in his contract of employment in accordance with a legitimate and objective justifiable policy on the part of his employer.

It is the Respondents submission that in this case the Complainants requirement to retire at 65 was incorporated into his contract of employment and that the question for the Adjudication officer is whether there was an agreed retirement age rather than whether it was objectively justified in terms of Article 6 (and now section 34(4) as amended). The Respondent employer is however also in a position in this case to demonstrate that there is an objective justification for having such a retirement age.

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 Complainants contract of employment did not state any retirement age. The Complainants contract made reference to the fact that there was no collective agreement and that in Section 20, Company Procedures states “ You are required to familiarise yourself with company procedures and are obliged to abide by Company regulations at all times”. There is no mention of a Company Handbook in the Contract of Employment. The Complainant commenced work on December 3rd 2012 and on that date was given an induction and he signed an induction form. There was no mention of a retirement date or the Company Handbook in that form.

The Respondent stated that the Complainant was provided with a copy of the Employee Handbook with his contract which stated in the Section “Retirement 4.1.2” that “Normal retirement age is 65 but may be reviewed by the Company”. The Complainant stated he had never received a copy the Company Handbook.

The Respondent made some points in its submission that there was either was an agreed retirement date contractually or it was objectively justified in terms of Article 6 (now 34.4) of the amended Act and the Respondent stated they had objective grounds for the retirement but these were not elaborated on at the Hearing.

Leaving aside the issue of whether the contract covered the retirement age or not, for the moment, the Respondents own Handbook states that “Normal retirement age is 65 but may be reviewed by the Company”. (The Underling and Bold inserted by the Adjudicator). This implies a flexibility on either side of the age of 65 for retirement. Therefore, following a company review, by implication a person can retire at an age different to 65. These circumstances for review are not defined in the contract or Handbook. The Respondent argue that the contract included a provision for retirement at 65. The Contract does not include that clause. No mention of the Company Handbook and its provisions are contained in the contract of employment. The Complainant disputes ever getting a copy of the Handbook. This leave the issue of the retirement date in legal dispute.

Section 34(4) of the Act, prima facia, allowed the Respondent to fix a retirement age in a contract without contravening the prohibition of discrimination on grounds of age. No such age was provided for in the contract and the Handbook provision does not specifically form part of the contract. Were it to be in the contract as written the retirement age is not fixed but flexible at the Respondent’s sole discretion “but may be reviewed by the Company”.

The Labour Court have ruled that where there is notice of a retirement age in another document where the employee had notice of such document and the employee knew, or ought to have known, of its existence that that could constitute an implied term and preventing the retirement age being discriminatory. The knowledge of that document is disputed in this case.

The judgement and tests described of Hedigan J in Mc Carthy v HSE (2010) 21 ELR 165 does not carry much into this case as the Complainant was employed in a small regional office of the Respondent with no clear prior customs and practices as to what the retirement age was. The fact that the Complainant stated he was unaware of the clause regarding retirement age and that fact that it could be reviewed by the company anyhow, would leave an option upon as to its flexibility of being effected by the Respondent. Therefore the tests of “officious bystander” or “implication by custom” on the other do not apply in the facts of this case. No evidence of a superannuation scheme was provided in evidence as to that pointing to 65 being the implied retirement age. The conclusion of this is that the retirement age was neither explicit in the contract or pass the “implied” test’s.

Having regard to all the circumstances, the Adjudicator cannot accept that the Complainant had knowledge of the retirement age being 65 years and no convincing evidence was produced that could have supported the claim that the Respondent had been informed of the retirement age provision. There was no specific term in the Complainants contract requiring him to retire at 65 and in the Adjudicators view, no such term can be regarded as having been implied or incorporated into the accepted tests. No meaningful “objective grounds” for the discrimination were provided by the Respondent.

For these reasons, I find that the Complainant was dismissed specifically because of his age and that the dismissal constituted an act of discrimination within the meaning of Section 6(2) (f) of the Act. I award the Complainant 5,000 Euro for the discrimination and breach of the Act.

Dated:   4th April 2018

Workplace Relations Commission Adjudication Officer: Peter O'Brien

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