Complainant

Respondent

Parties

Con Dowling

Limerick City & County Council

Complainant

Respondent

Anonymised Parties

A Firefighter

A County Council

Representatives

A HR Manager

Ger Kennedy SIPTU

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00010310-001

20/03/2017

The Complainant, a full time Firefighter, was alleging discrimination on the basis of age compared to a RetainedFire Fighter.

The case before you today arises from a complaint issued by our member against his former employer under the provisions of the Employment Equality Acts 1998 / 2015. The specific issue raised by the Complainant in his complaint form is that his conditions of employment in respect of a mandatory retirement age of 55 years of age are discriminatory in nature on the basis of age discrimination.

The Complainant commenced employment with the Respondent as a full -time firefighter on the 12/05/ 1986. The contract provided to him at that time specified that on recruitment he must be under 25 years of age and that the normal retirement age applicable to his position is 55. Retained firefighters have as part of their conditions of employment a retirement age of 55 but can apply to extend their contract of employment up to the age of 58 on the condition of passing an annual medical examination between the ages of 55 and 58

In relation to the full time Fire Service nationally the retirement age for full time- firefighters is set at 55, however firefighters employed by Dublin City Fire Service prior to 1995 have a contracted retirement age of 65. Therefore, there are a number of current firefighters employed in Dublin City Fire Service who joined the service both before and after the Complainant’s commencement date who have not had a mandatory retirement age of 55 imposed on them. It is also the case that senior officers in the Fire Brigades although considered to be operational have a retirement age set at 65. By comparison to international standards there is no universally applicable retirement age for firefighters. As part of this submission we attached examples of the retirement ages for firefighters across a number of European Fire Services, the majority of which have retirement ages set above 55. In advance of his retirement date the Complainant applied to the Respondent organisation to have his period of employment extended in line with the extension provisions applicable to retained firefighters. This application was rejected and the Complainant was required to retire on his 55th birthday. On that basis the Complainant contends that the conditions of employment requiring him to retire 55 are less favourable that the conditions of employment applicable to other serving fire fighters and as such discriminatory on the basis of his age.

Section 6(1) of the Employment Equality Acts 1998-2015 provides that

*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 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

exists

Existed but no longer exists

May exist in the future

be imputed to the person concerned”.

This Act gave effect in domestic law to European Directives and was subject to amendment under the Equality (Miscellaneous Provisions Act)2015 which took effect on 01/01/2016. This amendment gave further effect to Council Directive 2000/78/EC and in particular in respect of this case to recitals 14 &25 and Articles 4(1) & 6(1) of the Directive. In the transposition of the European Directive the 2015 Act introduced an amendment to Section 34 of the Equality Acts which provides that

“Without prejudice to subsection (3) it shall not constitute discrimination on the age of grounds to fix different ages for the retirement (whether voluntarily or compulsory) of employees or any class or description of employee’s if

it is objectively justified by a legitimate aim, and

the means of achieving that aim are appropriate and necessary”

At the time of the Complainant’s enforced retirement it is not contested that there existed in his contract of employment a clause which set out a normal retirement age of 55. However it is also the case that at the time of his retirement that his former colleague Mr. X (A Retained Firefighter) applied for and was granted an extension to his contract and currently remains in the employment of the respondent organisation. The aforementioned comparator is but one of many firefighters in the County Service who have availed of an extension to their service as Council employees. At no point prior to or subsequent to the Complainant’s retirement has the respondent organisation set out the objective justification for the difference in retirement ages or identify as to whether the means of achieving that objective were either appropriate or necessary. In this regard the Respondent has failed to meet its obligation under the Act.

Section 85 (a) of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance facts upon which he or she can rely in asserting that he or she has suffered discriminatory treatment, it is only where such a prima facia case has been established that the onus shifts to the respondent to rebut the inference of discrimination

In meeting the required burden of proof as required by section 85 (a) we would submit that the Adjudicator is required to consider the following facts.

The Complainant was forced to retire from his position as a firefighter on reaching his 55th birthday as per his conditions of employment.

The contractual position in respect of his retirement was directly related to his age.

In comparison to other colleague firefighters he sought to have his period of employment extended.

The colleague firefighters in question fulfil the same role required of the Complainant albeit on a part-time basis.

This application was refused by the Respondent organisation.

At the time of his retirement other firefighters had been and were being treated more beneficially in relation to the application of a retirement age

At the time of his retirement the employer had not justified his age of retirement within the meaning of section 34(4) of the Acts and of Article 6 of the Directive 200078/EC

At the time of his retirement the Complainant was fit, well, fully trained and quite capable of carrying out the functions and duties of his job thereby removing any requirement for the imposition of a mandatory retirement age.

We would contend that had the Respondent organisation identified any legitimate justification for enforcing a retirement age of 55 as part of the conditions of employment that any such legitimate aim could have equally been achieved by allowing the Complainant the extension he requested given that he undertakes comparable work with those members of the fire service who have been accommodated with the retention of their services up to age 58

Adjudicator, we believe that the above set of facts are of such significance that they are sufficient to establish the prima facia case of the inference of discrimination and that as such the burden of proof required of the complainant has been met in this case. We would further contend that the burden of proof must now shift to the Respondent organisation to rebut that inference. Given that the provisions of section 34(4) of the Act have not been complied with by the Respondent we would argue that it is not possible for the Respondent to be in a position to discharge that burden. In support of our arguments we would rely on the provisions of ADJ -0006654 where it was found that the retirement of a worker whose contract specified a retirement age was still found to be discriminatory.

In consideration of the arguments and evidence submitted to this hearing we would request that the Adjudication Officer would determine that this complaint is well founded and require the employer to remedy the effects of discriminatory conditions of employment enforced on the Complainant by re-instating him as a firefighter with the Respondent and compensate him for the loss of earnings associated with his premature retirement.

The case before you today relates to a complaint under Section 77 of the Employment Equality Act 1998.

The Complainant commenced employment with the Respondent on 11th May 1996 as a Fire Fighter. Per his Contract of Employment, and in line with all full-time fire fighters, retirement age is set at 55- see contract of Employment.

We have received a request from the Complainant to remain in employment as a Fire Fighter until the age of 58.

Per the Local Government (Superannuation) (Consolidation) Scheme 1998 full time fire fighters are required to retire at age 55. This is also in the contract of Employment. This is the national position and something the Respondent must adhere to. The information notice regarding superannuation provisions and retirement ages for all staff serving in the public service also reiterates the retirement age of 55 for all full-time fire fighters. Per Circular LG(P) 1237 retained fire fighters have the option of working up to the age of 58, provided they pass an occupational health test.

Letters and notifications have issued to the Complainant and are listed on file for review.

SIPTU wrote to the Local Authorities regarding a proposal to introduce an extension of the retirement age for full time firefighters from 55 to age 60 . The proposal was formally submitted to a meeting of the Local Authority National Council on 27th September 2017. From our point of view this provides confirmation of the nationally recognised situation regarding the retirement age of full time fire fighters.   It is important to note that any change to the existing retirement age, as proposed by SIPTU in the their correspondence, would also require changes to the existing Superannuation legislation. Similar applications have been made by whole time fire fighters retiring in the recent past but no whole time officers have been extended per this national agreement. Unfortunately we have no discretion in relation to this matter.

On this basis the Respondent requests that the Adjudicator find in favour of the Respondent in this instance. 

Section 6.1 of the Act states the following

*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 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

exists

Existed but no longer exists

May exist in the future

be imputed to the person concerned”.

Section 6 2. States “for the purposes of this Act discrimination shall be taken to have occurred or taken to occur, where on any of the grounds in Subsection (2) (in this Act referred to as the discriminatory grounds) one person is treated less favourably than another is, has been or would be treated.”

Section 6.2.C states that they are of different ages, but subject to Section 3 in this Act referred to as “the age ground”.

The core issue of discrimination alleged in this case is that a Retained Firefighter, subject to an Occupational Health Test, was allowed continue working until age 58 whereas the Complainant, a Full Time Firefighter aged 55, was not allowed continue or given the opportunity to prove his fitness to continue working until 58 by completing an Occupational Health Test. While the issue of comparability to some similar employees in other similar employment bodies, who work till 65 was raised in the submission this did not form part of the original complaint and therefore is not dealt with in this decision.

The Act allows under Section for discrimination on either of the following basis;

“Without prejudice to subsection (3) it shall not constitute discrimination on the age of grounds to fix different ages for the retirement (whether voluntarily or compulsory) of employees or any class or description of employee’s if

it is objectively justified by a legitimate aim, and

the means of achieving that aim are appropriate and necessary”.

The Respondent’s core reasons for refusing the Complainants claim were that the age of 55 was part of his contract of employment, that there is a National Agreement with SIPTU that full time Firefighters retire at age 55 and that the Superannuation Scheme legislation would have to be amended nationally to allow for an extension of employment of the Complainant to age 58.

The core words in the Act to allow for discrimination are “it is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary”.

In this instance, the fact that a Union Agreement exists between Local Government and SIPTU that full time Firefighters must retire at 55 and to extend the Complainants opportunity to work beyond 55 would be in breach of that agreement, I find that that complying with that agreement is a “legitimate aim” of the Respondent. However, whether” the means of achieving that aim are appropriate and necessary” is questionable given that the agreement discriminates between full time and Retained fighters based on age. The second “legitimate aim” is that the Respondent is complying with Superannuation legislation. This legislation would have to be amended for the complaint not to be “justified by a legitimate aim”. Finally, due to the broader issue of the number of staff involved in the result of any change to the retirement age of Full Time staff, and whilst not part of this decision, the issue seems one more appropriate for the Industrial Relations forum.

Another issue for consideration on this case is clause 7 of the Act “Like Work”. While there is no doubt that both Full and Retained Firefighters complete “like work” when on duty at a fire, Section 7 (a) is worthy of note in this particular case. It states “both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work”. The word “interchangeable” is the relevant word here in that a Retained Firefighter is on call whereas a Full Time Firefighter is assigned fixed hours to be at work. Therefore, the first person to be called up in normal fire circumstances is the Full Time Firefighter. Therefore whilst they are interchangeable while performing their duties they are not interchangeable when being selected to do duties with the Full Time Firefighter been the first one to be assigned the tasks of dealing with a fire. Whilst I do not wish to make too much of an issue of this aspect of the decision it is of some small relevance in this particular case and a “like for like” comparator.

On balance, I find that the Complainants case for discrimination must be deemed not well founded, on the basis of the Respondent having a number of objectively justified reasons to achieve legitimate aim(s), due to the Respondent implementing an industrial relations agreement, agreed between the Respondents overall organisation and the Complainants National Union, albeit that the agreement may be somewhat unfair to full time staff compared to Retained firefighting staff and that the Respondent is implementing existing Superannuation legislation.

The claim fails accordingly, mainly on the basis that the Respondent grounds are “currently objectively justified by a legitimate aim(s) ” albeit aims that are currently under review by the Complainants Trade Union and Local Governmentand a ground that may well be found to be unjustifiable in time.

Age Discrimination