Complainant

Respondent

Anonymised Parties

An Employee

A Railway Company

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-00012097-001

23/06/2017

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

CA-00012097-002

23/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00012097-003

23/06/2017

The Complainant commenced work with the Respondent in 1996, in the role of resident gatekeeper. He was retired in August 2017 and his complaints revolve around the manner and circumstances in which his retirement took place.

Background:

The Complainant, who had been working with the Respondent since 1996, entered the Company Pension Scheme in 2004, at which time he paid arrears of pension contributions back to 1996. According to the Complainant, he was told that his pension age was 70 rather than 65, which was unique to those in his role as crossing keeper. He was further informed that his pension contributions would cease at age 65, but his retirement at age 70 would be unaffected.

In 2003 a new pay deal was negotiated between the Respondent and the Trade Union. However, it was stated on behalf of the Complainant that, other than this deal, no other changes were made to the terms and conditions of employment as per his original contract entered into a 1996. The provisions relating to his retirement as resident gatekeeper was that he could work onto age 70.

It was submitted on behalf of the Complainant that the retiring age for Gate Keepers was their 70th birthday subject to medical certification of fitness at age 65 and each subsequent year thereafter up to retirement age. It was contended that the Complainant’s Pension contributions would cease as per the terms of the pension at age 66, but there was no agreement on a change to the retirement age of the original contract.

It was stated that, in the last few years, due to changes in technology and automation, the Respondent had been gradually automating gates. When the crossing that the Complainant maintained was automated in 2008/2009, he was put on duty as relief staff for other crossings and for other general duty on behalf of the Respondent. It was stated that the Complainant continue to be rostered for 48 hours a week until 4 August 2017 after which no further work was scheduled for him.

It was further stated that the Complainant was informed that, as he was a member of the pension scheme, he must retire at age 66 but that non-members of the Pension Scheme would be allowed to remain working until age 70. It was stated that the Respondent did not answer correspondence from the Complainant's solicitor in any substantive way and have refused to honour his contract. It is stated that the Complainant is now being forced to retire.

It is also submitted on behalf of the Complainant that he is being victimised by the Respondent by being refused access to the Voluntary Severance Scheme on the apparent grounds it was too close to retirement. According to the Complainant he wanted at all times to continue and see out his contract until his 70th birthday.

In support of his contentions in this regard, the Complainant stated that in late 2016 he was transferred to a different department and was reporting to a new manager. The Complainant was offered voluntary severance, similar to statutory redundancy, at the end of April 2017, on the basis that he was now surplus to requirements.

According to the Complainant, the voluntary severance figures were based on retirement at age 66 and took no account of the claimant's actual retirement age of 70. It was stated that when the Complainant queried the figures, he was told by his manager that they were treating his retirement age as 66, as he was a member of the Pension Scheme and only non-members of the scheme will be permitted to work up to the contractual retirement age.

The Complainant stated that he was also advised that he would have to forego the gratuity given to other, younger employees as the company considers the pension scheme benefits would be sufficient for him. It was submitted on behalf of the Complainant that, rather than engage in a long legal battle with a well-resourced employer, he decided to accept the voluntary severance terms.

However, it was stated on behalf of the Complainant that, when he met with his manager, on 5 May 2017, to hand in his acceptance documentation for the voluntary severance scheme, he was told that he was too late with his application and he would have to wait for the next scheme, which was due to be announced shortly.

However, as no such offer was forthcoming, the Complainant took legal advice which resulted in a letter being sent to his manager protesting, what he claimed was age-based discrimination. However, no reply was ever received to that correspondence and the Respondent purported to retire the Complainant on 4 August 2017.

Complaint: CA-00012097-001 – Employment Equality Act, 1998 (Age discrimination)

The Complainant is claiming that he was discriminated against by the Respondent on the grounds of age.

According to the Complainant, the Respondent’s group Pension Scheme, which followed on from older and preceding rail company schemes, has rules on qualifying for pensions. However, it was contended, on behalf of the Complainant, that these rules cannot of themselves unilaterally alter the terms and conditions of the Complainant's contract of employment. In addition, it is contended that the position of resident gatekeepers is a special one within the scheme as set down in a 1992 Statutory Instrument.

It was submitted on behalf of the Complainant that, not only has his contract terms not been altered, but he was assured on entering the scheme by his Trade Union representative that his retirement age had not been altered by his joining the Scheme. Consequently, it is contended that, by imposing an early retirement date on the Complainant, the Respondent has clearly discriminated against him on the grounds of age.

It was further submitted on behalf of the Complainant that a prima facie case has been established. It was further stated that, given that other employees are being permitted to work past the age of 66, there can be no justification in the discrimination of the Complainant.

Complaint: CA-00012097-002 – Employment Equality Act, 1998 (Penalisation)

It was submitted on behalf of the Complainant that he was also penalised with regard to the Voluntary Severance Scheme, which is also based on age rather than length of service. According to the Complainant, in April 2017, he was offered voluntary severance, which he accepted, despite the terms being less favourable due to his age. This offer was subsequently withdrawn and the Respondent failed to provide a further offer, as promised, when the Complainant contested the withdrawal of the April 2017 offer.

The Complainant states that the withdrawal of the offer and the failure to provide a subsequent offer was as a result of his protest at the illegal discrimination and his threatening to make a complaint under the Employment Equality Acts. According to the Complainant, this represents a prima facie case of penalisation/victimisation under the Acts.

Based on the above, the Complainant's legal representative sought a finding in favour of the Complainant, which would award dissuasive compensation for the breach of his rights under the Acts.

In addition, the Complainant is seeking a recommendation that his forced dismissal be rescinded and he be entitled to participate in the Voluntary Severance Scheme, should he so wish, on terms at least no worse than those of the original offer withdrawn from him.

Complaint: CA-00012097-003 – Industrial Relations Act, 1969,

The Complainant's complaint under this Act relates to the Respondent's refusal to honour the retirement age in his contract and the refusal, as a result, to allow him access the voluntary severance scheme.

Background:

The Respondent stated that the Complainant commenced employment on 6 August 1996 and was appointed to the regular staff of the Company on 15 October 1998.

According to the Respondent, the Complainant opted to join the Wages Grade Pension Scheme in 2004. This was following new arrangements introduced under a new deal for Resident and Non-resident Level Crossing Keepers.

The Respondent stated that the Complainant retired on 4 August 2017.

Complaint: CA-00012097-001 – Employment Equality Act, 1998 (Age discrimination)

The Respondent refutes the Complainant’s claim that he was discriminated against by being forced into early retirement contrary to his contract terms. According to the Respondent, when the Complainant joined the Wages Grade Pension Scheme in 2004, he was provided with an information booklet relating to the scheme. According to the Respondent this booklet clearly states that the normal age of retirement at 65. This retirement age of 65 was formally increased to 66 by S.I No 63 of 2016.

According to the Respondent, the Complainant retired in August 2017, at age 66. The Respondent stated that is it is their policy that members of the Pension Scheme retire at the "normal age of retirement", which is 66. The Respondent stated that it applies this policy to ensure compliance with the statutory requirements and to ensure all employees are treated in a fair and consistent manner.

While acknowledging that the Complainant believed that he should be allowed to work on to 70, the Respondent stated that, under a new deal in 2004, Level Crossing Keepers were given the option of joining the Wages Grade Pension Scheme. According to the Respondent, the Complainant availed of this option and, thereby, agreed to the terms and conditions of the Scheme, i.e. retirement at normal retirement date, which is 66.

According to the Respondent's evidence, there are a number of Level Crossing Keepers for whom the retirement age is 70. However, the Respondent stated that this only applies in circumstances where the employee is not a member of the Wages Grade Pension scheme. The Respondent further stated that this only occurs where there is a valid business case to retain the employee and that they are, in turn, passed fit for duty by Chief Medical Officer.

Complaint: CA-00012097-002 – Employment Equality Act, 1998 (Penalisation)

The Respondent refutes the allegation that the Complainant was victimised by being excluded from the Voluntary Severance Scheme after protesting about early retirement been contrary to his contract terms.

According to the Respondent, employees are typically provided with a voluntary severance estimate and options. It was further stated that these estimates/options are explained to employees by personnel from the Human Resources Department. The Respondent stated that the provision of an estimate is not a guarantee that voluntary severance will be granted, a fact is clearly set out in the documents provided to employees at the time.

The Respondent's evidence is that the Complainant had previously rejected offered voluntary severance estimates provided to him in 2008, 2011 and 2015.

Summary:

In conclusion, the Respondent strongly denied all of the complaints made by the Complainant. The Respondent stated that, in their view, the Complainant was treated in a fair and equitable manner consistent with how all employees are treated in relation to retirement and voluntary severance.

The Respondent stated that the Complainant was not forced into early retirement. According to the Respondent, the Complainant is a member of the Wages Grade Pension scheme and has recently retired, aged 66.

The Respondent further stated that the Complainant has not been victimised by being excluded from receiving voluntary severance. On the contrary, the Complainant stated that voluntary severance estimates and options were provided the Complainant on three separate occasions prior to 2017. The Respondent stated that it is important to note that the Complainant declined voluntary severance on all of those occasions.

While the Respondent accepts the Complaint is fully entitled to decline voluntary severance offers, they contend that it would unreasonable in the extreme and a very unfair reflection on what happened for the Complainant to now claim that he was being victimised by Company.

The Complainant's complaint revolves around the key contention that, as per his original contract of employment, he was entitled to work on to age 70 and that his 70th birthday was his normal retirement date. The key component in the Respondent's response is that, by joining the Wages Grade Pension Scheme in 2004, the Complainant is bound by the terms of that scheme, which sets retirement date for members at age 66.

While no documentary evidence was provided in respect of the Complainant's original contract of employment, it is generally accepted that his terms accommodated working until age 70.

An agreement relating to the pay and conditions of Level Crossing Keepers, which was reached with the Respondent in June 2003, was submitted as evidence at the Hearing. Section 5 of that agreement sets out the provisions in relation to "Sick pay and pension" as follows:

"Resident Level Crossing Keepers are eligible to join existing C.I.E. Wages Grade Pension scheme subject to the rules of the scheme and in particular subject to statutory instrument SI No 93 of 2001.”

Elsewhere in the agreement under Section 5 General – (D), it further states:

“In accordance with the rules of the pension scheme all crossing keepers will be required to retire from the Board service no later than age 65." (It is noted that S.I. 63 of 2016 amended the retirement age from 65 to 66.)

Taking all of the above into consideration, it is clear that the key issue for consideration is whether or not the Complainant’s joining the Wages Grade Pension Scheme in 2004 had the effect of changing his retirement age from 70 to 66.

Documentary evidence provided the Hearing clearly shows that the Complainant voluntarily opted to join the Wages Grade Pension Scheme in October 2004. It is also clear from the terms of the agreement reached between the Level Crossing Keepers and the Respondent in 2003, which provided the option to the Complainant to join the scheme, that all Crossing Keepers would be required to retire at age 65 (subsequently increased to 66).

Given that the option to join the Pension Scheme arose out of a negotiated agreement between the Level Crossing Keepers and the Respondent, the Complainant's contention that the application of the rules pertaining to that scheme constituted a unilateral imposition by the Respondent, is not well founded.

In addition, I am satisfied, from the evidence adduced at the Hearing that the Complainant exercised his option and decided to join the Pension Scheme. It is further noted that the Complainant complied with all the requirements necessary for his application to the Pension Scheme to be accepted by the Respondent’s Board, at that time.

Section 5 of the Terms of Employment (Information) Act, 1994, requires that an employer provide appropriate notification to an employee of any changes to their existing terms and conditions of employment. Based on the evidence, as set out in the previous paragraphs, I am satisfied that the Complainant was fully and properly notified with regard to the changes in his terms and conditions of employment, in particular as they applied to his retirement date, following his voluntary exercising of his option to join the Wages Grade Pension Scheme.

Therefore, taking all of the above into consideration, I am satisfied that the Respondent’s decision to retire the Complainant in August 2017, at age 66, was consistent with the terms of the Pension Scheme and with the Complainant’s terms of conditions of employment as they existed at that time.

I am also satisfied that the position, as set out in the previous paragraph, is further underlined by the fact that, at the date of his retirement in August 2017, the Complainant had not been in the position of resident Level Crossing Keeper for a number of years.

Therefore, taking all of the above into consideration, I am satisfied that the termination of the Complainant’s employment by way of retirement does not constitute a forced dismissal.  

Complaint: CA-00012097-001 – Employment Equality Act, 1998 (Age discrimination)

Based on the considerations and conclusions set out above, I find that the Respondent’s retiring of the Complainant on his 66th birthday does not constitute an act of discrimination on the grounds of age.

Complaint: CA-00012097-002 – Employment Equality Act, 1998 (Penalisation)

The Complainant’s complaint of penalisation relates to his contention that the withdrawal of the offer of voluntary severance which was made to him in April 2017, resulted from his objection to the Respondent retiring him at age 66, as opposed to allowing him to work on to age 70, as per his original contract of employment.

The evidence presented before the Hearing indicates that the Complainant was provided with details of a voluntary severance option in April 2017. That evidence also indicates that, when the Complainant presented his application documentation to the appropriate line manager on 5 May 2017 he was informed that his application was too late.

Having carefully reviewed all of the documentation submitted at the hearing, the evidence shows that, in a letter to the Respondent, dated 23 June 2017, the Complainant’s solicitor advised that a complaint had been submitted to the Workplace Relations Commission (WRC). As this correspondence was received by the Respondent after the offer of voluntary severance had been withdrawn, it is not credible to suggest that it was the reason for the withdrawal of the offer.

While it is unclear from the evidence adduced whether there were factors, other than the stated late receipt of application, influencing the Respondent’s decision to withdraw the severance option, I am satisfied, on the balance of probability, that it was not as a result of any protests or objections by the Complainant on equality grounds.

Therefore, taking all of the above into consideration I find that the Complainant’s complaint of penalisation under the Employment Equality Acts is not well funded.

Complaint: CA-00012097-003 – Industrial Relations Act, 1969,

As already set out in the previous paragraph, it is clear that the Complainant was provided with details pertaining to a voluntary severance package in April 2017. While it is clear that the terms of this package were not entirely favourable from the Complainant’s perspective, the evidence shows that he decided to apply in any event.

The evidence further indicates that when the Complainant submitted his application documentation to his line manager he was informed that his application was too late. According to the Complainant, he was advised to wait for the next scheme which would be announced shortly thereafter. There is no evidence to suggest that any further scheme was opened and/or made available to the Complainant.

Other than the Complainant’s evidence that he was informed by his line manager, on 5 May 2017, that his application was too late, the Hearing was not provided with any evidence with regard to application deadlines in relation to the scheme or any additional rationale for the subsequent withdrawal of the option provided to the Complainant a short time earlier.

The Respondent’s evidence, that the provision of voluntary severance estimates is not a guarantee that the package will be granted, is noted. However, in the context of the Complainant’s employment situation as it stood at that time and the Respondent’s evidence to the effect that there was no business reason to continue to employ the Complainant, I find it somewhat unusual that the Respondent’s application for voluntary severance was dismissed in such an arbitrary fashion, as it appears to have been on 5 May 2017, without any explanation or further consultation with the Complainant.

While noting the Respondent’s evidence that the Complainant had declined voluntary severance options on three previous occasions (2008, 2011 and 2015), I do not accept that this should have had any bearing on his 2017 application. He was clearly provided with figures in relation to voluntary severance and these appear to have been subsequently withdrawn in a context where the Complainant was indicating that he wished to avail of the option.

From the evidence adduced, I am satisfied that the Complainant would, understandably, have had a strong expectation that, in the circumstances that existed at that point, an offer of voluntary severance was available on application.

In that context, I am of the view that it would be a reasonable and appropriate move on the Respondent’s part to reconsider making the voluntary severance package available again to the Complainant on a once of basis.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above:

I make the following decisions in relation to the Complainant’s complaints under the Employment Equality Acts, as follows:

Complaint: CA-00012097-001 – Employment Equality Act, 1998 (Age discrimination)

I find that the Complainant’s complaint of age discrimination with regard to his retirement from the Respondents employment is not well founded and is, therefore, rejected.

Complaint: CA-00012097-002 – Employment Equality Act, 1998 (Penalisation)

I find that the Complainant’s complaint of penalisation is not supported by the evidence and is, therefore, rejected.

With regard to the Complainant’s claim under the Industrial Relations Act, 1969, I make the following recommendation:

Recommendation:

Complaint: CA-00012097-003 – Industrial Relations Act, 1969,

Having carefully considered all of the evidence in relation to the Complainant’s complaint regarding the withdrawal of the voluntary severance offer, I find, in all the circumstances, that the Respondent’s rather arbitrary withdrawal of what the Complainant clearly understood to be an offer, could be considered as unreasonable.

In this regard, I also note the evidence which suggests that the Complainant’s retirement and, in particular, the manner in which that was communicated to him, was less than what might be expected to appropriately mark the retirement of an employee with over 20 years’ service.

Based on the above, I recommend that the Respondent should give serious consideration to providing a voluntary severance option to the Complainant, the terms of which would be no less unfavourable than those which were originally provided to him in April 2017.

Age Discrimination

Normal Retirement Date