Complainant

Respondent

Anonymised Parties

John O'Brien

Ppi Adhesive Products Ltd

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00012939-001

03/08/2017

The complainant was employed as an Assistant Production Manager with the respondent. He commenced work on 4 January 1971 until the termination of his employment on 31 July 2017 on reaching the age of 66. He was paid €5,884.67 gross per month. He claims that he was not allowed to stay on in his employment because of his age and therefore feels that he was discriminated on the age ground.

The respondent claims that the retirement age in the company is normally when an employee reaches the age of 65 years old and it is objectively and reasonably justified by a legitimate aim and it claims that the means of achieving that aim to be appropriate and necessary.

The following is a brief summary of the evidence presented by the complainant.

The complainant claims that he was an Assistant Production Manager with the respondent where he had worked for over 46 years in total. He was happy working there and as he approached his 65th birthday he spoke with Ms. A, in the respondent’s office, where he said that he wished to continue working beyond his 65th birthday and was advised to send on an email seeking that extension. He said there were many other employees working there at that time that were around the same age as he was, and he named 3 other workers, albeit, on a different level to him, that were older than he was, he cited their dates of birth, and said that they were still working with the respondent beyond the age of 66. He said that he never had any problem with his work or his employer, that he was fit and healthy and there were no reasons for him to retire.

The complainant gave a detailed account of his duties as an Assistant Production Manager. He said that he did not have a contract of employment or a list of his terms and conditions. The complainant said that he was not a member of the trade union. However, he said that he spoke with the local shop steward about the respondent’s retirement policy, and said that he was informed that there was no company agreement in place on the retirement age. He said the whole issue in relation to retirement came to focus when a work colleague was told that due to a ‘new policy’ he had to retire in July 2016 on reaching his 66th birthday.

The complainant said that he did apply to do a pre-retirement course as he was advised by fellow workers of its benefits leading up to and after retirement. In cross examination he said that this was not an indication in itself that he was going to retire any time soon. He said he was advised to get the course completed as soon as possible in the lead up time to his retirement and would advise others to do the same and not to leave it too late. He also said that he knew a number of employees who did retire aged 65 and 66 but he was not aware if they wanted to stay on or not as he did. However, he was sure there were other named “foremen” who stayed on well beyond their 66th birthdays.

The complainant said that he was never advised of a company retirement age, be it custom or practice or company policy or otherwise. He said that there never was a discussion with his employers other than when he was told to send an email to request to extend his employment beyond his 65th birthday by Ms. A. The complainant said that he applied to stay on after his 66th birthday by email on 20 October 2016 where he referred to the custom and practice, as he knew it, and he referenced his good health, to which he received in reply a short email on 16 November 2016 confirming that “your retirement date will be Monday the 31th of July 2017.”

The complainant said that on 10 February 2017 he appealed the respondent’s decision to set his retirement date at 31 July 2017, setting out two comparators who’s “duties were broadly in practical terms involving production orientated role” and therefore suggesting that the custom and practice is not consistent and not fair. He argued that there was no mandatory retirement age in place in the company and he wanted to stay on longer. He said that he received a reply on 23 February 2017 from Mr. B, company director, which stated that having heard the appeal he felt there was no basis to overturn the original decision. The complainant said that he emailed Mr. B on 6 March 2017 in relation to that appeal particularly where Mr. B refers to an agreement, in relation to retirement age, that was in place since 2014. The complainant said he asked about that agreement and whom it was with. He said that he still has not received a reply from Mr. B to his request.

The complainant said that he engaged a solicitor to help to resolve the matter prior to the date indicated by the respondent as his date of retirement. However, he never received a meaningful response.

The following is a brief summary of the evidence presented by the respondent.

The respondent claims that retirement age in the company is normally when an employee reaches the age of 65 years old. It claims that in the case of trade union members, that is so by virtue of the company/union agreement which is in existence for some time. It claims that in the case of staff/management categories, that is so by custom and practice which has been the case for many years.

The respondent maintains that it is open to employees to seek an extension, by agreement, to the age of retirement up to reaching the age of 66. It claims that the complainant has sought to stay on one more year past his 65th birthday. The respondent points to an email that it received from the complainant dated 9 February 2016 which reads “I will be 65 years old on [date], I wish to stay on for one more year until my 66th birthday”, the respondent maintains that its clear from this email that the complainant was looking for one more year only and that it was within its prerogative to start the wheels in motion for succession planning. The respondent also pointed to another email from the complainant dated 23 August 2016 seeking to attend a pre-retirement course “as soon as possible”. The respondent maintains that in recent years many employees, like the complainant, had requested to say on and that they were facilitated, but ultimately it was to look after and prepare the business for the future.

The respondent maintains that in a total of 12 retirees over the last 11 years, two employees were employed beyond the age of 66 on their request in account of their particular knowledge/skills set, which the company was sufficiently happy with to retain in the business. However, all the other employees retired at retirement age as was the policy.

The respondent maintains that the retirement of employees at the age of 66 was by agreement between the respondent and the trade union. It claims that on foot of that agreement the company put in place a retirement process and it also put in place a recruitment process which led to the employment of a new Production Engineer after the complainant had retired and this was with the aim of enhancing the technical skills of the business.

The respondent said that the complainant’s retirement date was confirmed to him by email of 16th November 2016 from its HR department. It said that when the Defined Contribution Pension Scheme was set up, a number of employees, including the complainant, were given the opportunity and benefit of higher contributions from the company because they were closer to retirement age as compared to some younger employees.

The respondent denies any claim of discrimination against the complainant on the age ground or any other ground.

The issue for me for consideration is whether the respondent dismissed the complainant in circumstances amounting to discrimination on grounds of age in terms of Section 6 of the Employment Equality Acts, 1998-2015 and contrary to Section 8 of those Acts when it terminated his employment.

Section 6(1) of the Act provides that discrimination shall be taken to occur where “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)

...

(f) defines the discriminatory ground   of age as follows – “as between any two persons … that they are of different ages, but subject to Section (3) …“

Section 85A of the Act sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts.

The Labour Court has stated in Melbury Developments Limited and Valpeters (EDA0917): Section 85A of the Act provided for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. While those facts will vary from case to and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.

The relevant law is in Section 6(1) of the Employment Equality Acts 1998-2004 and the Equality (Miscellaneous Provisions) Act 2015. This latter amends the former Act in respect to retirement age in requiring retirement on grounds of age to be ‘objectively and reasonably justified by a legitimate aim, and requiring the means of achieving that aim to be ‘appropriate and necessary’.

This confirmed the widely accepted jurisprudence in respect of the application of the prohibition of discrimination at the point of retirement on age grounds.

The complainant submits that he was forced to retire due to the company maintaining that it had a mandatory retirement age in place based on custom and practice once he reached the age of 65, but that could be extended to the age of 66 but no further. He said that he was not aware of this custom or practice and it was not included in a contract of employment as he did not have a contract. He said that he knew of other members of staff who were permitted to work past the age of 66. He claims that the introduction of a mandatory retirement age for him, which had the effect of terminating the complainant’s employment at age 66, in this case, constitutes discrimination within the meaning of the Employment Equality Acts.

Having heard the evidence from both parties, I am satisfied that the complainant has established that he was retired based on his age only, and accordingly he has established a prima facie case of discrimination on the grounds of age and that it is now for the respondent to rebut that inference of discrimination.

In terms of discrimination on the ground of age it must be determined whether such discrimination is in fact admissible by one or more of the justifications provided for in Article 6 of the Council Directive 2000/78/EC of 27 November 2000 – “Establishing a general framework for equal treatment in employment and occupation”. Consequently, it is incumbent upon the respondent to justify the difference of treatment on the grounds of age. The respondent can do so under the provision of Section 34(4) of the Act if it can establish that the difference in such treatment is (i) objectively and reasonably justified by a legitimate aim, and (ii) the means of achieving that aim are appropriate and necessary.

Thus, in considering whether a decision to impose a compulsory retirement rather than allow the complainant to remain employed is objectively justifiable, I must consider:

1 - What was the de facto situation in the respondent’s company at the time?

2 - Do the measures in relation to mandatory retirement seek to achieve a legitimate aim?

3 - Is the aim legitimate in the particular circumstances of this case?

4 - Are the means of achieving the aim proportionate?

One of the leading authorities for this aspect of Employment Equal law is found in Donnellan v The Minister for Justice, Equality and Law Reform and Others [2008] IEHC467, which sets out guidance for determining how an objective justification advanced in respect of a retirement age is to be assessed. It states, “Any discrimination with regards to age must, as put by that Directive, serve a legitimate aim or purpose, and the means taken to achieve that purpose must be appropriate and should go no further than is necessary, i.e. they should be proportionate.”

The respondent states that it has set a mandatory retirement age of 65, which is extendable to the age of 66 on application and agreement, which is objectively justifiable for its successive planning for the future of the business and “… with the aim of enhancing the technical skills in the business”.

The complainant submitted that he had an expectation of working beyond the age of 66 years of age and submitted details of comparators who had been afforded that opportunity. The respondent said it had a definite retirement policy in place, a trade union agreement for union members and custom and practice for staff/managers. The respondent states that two employees were employed beyond the age of 66 “on account of particular knowledge/skills which the company sought to retain”. I also note that the complainant was the only person of his grade/level up for retirement. The complainant cited three employees, two of which were ‘foremen’ as his comparators, who were allowed to say on beyond the age of 66. He also referred to a senior manager who worked beyond 66. The respondent said that the foreman grade selected was not the appropriate comparator in this case, that the complainant was akin to management level and all the managers left at age 65. The respondent said that the senior manager, the complainant was referring to, was one of the main shareholders in the company and his circumstances were not comparable either.

In reality, from listening to both parties I infer that there is much confusion as to the most appropriate comparator for the complainant to cite and consequently the actual policy applied to the different category/grade of worker. This raises questions as to what the retirement policy was at the time. I am satisfied that there was confusion, there appears to be no discussion on the matter and the confusion remains. Therefore, I accept the complainant did not have categorical information of a specific retirement age for him. Consequently, I am satisfied that I cannot say I am convinced that the respondent applied a known established specific retirement age to all its employees.

I now consider the respondent’s defence of justification on the basis that the respondent should in line with efficient workforce planning be entitled to manage its resources and plan accordingly. I note that the respondent maintains that it decided that in light of the complainant’s upcoming retirement it was going to replace the complainant – an Assistant Production Manager- with a Production Engineer to enhance the technical skills in the business. It claims that the process to head hunt the complainant’s replacement originated back in October 2016, which appears to be at the same time as the complainant first wrote to the respondent seeking to stay beyond his 66 birthday, which is some 9 months into the future.

I accept the respondent’s assertion that it is not unreasonable for the employers to have a legitimate interest in workforce planning and the enhancing of new skills into the business. However, I find the timing of events rather interesting. The complainant learns internally from some work colleagues that they are being told they must go in line with “a new retirement policy”. The complainant has just secured an extension beyond the age of 65 and is only 3 months into that period when he indicates that he would like to stay on longer than his 66th birthday, in nine months’ time. This is when the respondent decides that it will start the process of head hunting his replacement, although nothing was discussed with him and I have no evidence before me that that recruitment procedure started in October 2016. Also, I have not been presented with any facts, reasons or cases other than a simple statement that there was a need for a Production Engineer in the role the complainant readily and competently carried out for a substantial part of his working life. There may be good reason(s) for this decision, but they have not been presented to me.

I note that the complainant has an unblemished work record, there are no complaints or concerns regarding the matter of his capacity. I find that the complainant has clearly indicated his understanding of the custom and practice as he understands it to be in place at that time and he has expressly said he would like to stay on. I note that the lines of communications to discuss this matter appear strained, the respondent’s reply to the extension request from the complainant on the 16 November 2016 was noticeably direct and it appears non-negotiable. The complainant appealed this decision.

I note the findings of the Appeals Officer. He noted, in upholding the respondent’s decision not to grant the complainant’s extension, that in 2014 “it was agreed that the retirement date (would change) …”. I also note were he made reference to the other small number of cases others stayed on beyond the age of 66, “those have been exceptional and arose when the Company did not have a succession plan in place and wished to retain specific resources”. Neither of these positions appear to have been fully explained to the complainant. I note that when the complainant asked for clarity about the 2014 agreement, it was simply not addressed. I note it was not sufficiently addressed in the submissions before me at the hearing, either. Accordingly, I find the respondent’s arguments to be somewhat incomplete and unconvincing.

I note the decision in McCarthy v HSE [2010] ELR165 where it was deemed that the complainant was “on notice” that her retirement date is approaching. I am not convinced that was the situation in this case before me.

From the totality of the evidence adduced I am not satisfied that the respondent operated a universally applied compulsory retirement age or that the policy of applying a mandatory retirement age satisfies a legitimate aim and that the means it has put in place to achieve that aim are appropriate and necessary within the meaning of the Directive 2000/78/EC.

The respondent seems to apply their own retirement age requirement inconsistently and the unexplained exceptions undermine that policy. From the evidence proffered it is not clear whether the respondent actually has an established legitimate retirement age with possible extensions for all its employees, or do they have ad hoc approach to retirement age depending on the grade/level or situation of its employees. This lack of clarify supports the argument that the respondent set various different situation for different employees within the organisation.

For the reasons set out above, I find that the complainant was dismissed by the respondent by reason of his age, and that this dismissal constituted an act of discrimination within the meaning of Section 6(2)(f) of the Act.

In reaching my decision, I have taken into account all the submissions, written and oral that were made to me.

Based on all of the foregoing, I find, pursuant to Section 79 of the Employment Equality Act, that the complainant was the subject of discriminatory treatment on grounds of age.

In accordance with my powers under section 82 of the Acts, I hereby order that the respondent pay the complainant €35,000 [thirty -five thousand euro] by way of compensation for the breaches of the Employment Equality Acts which roughly equates to 6 months’ pay. The award is redress for the infringement of the complainant’s statutory rights and therefore, not subject to the PAYE/PRSI code. 

Employment Equality Act - discrimination, retirement age, justification - compensation