Complainant

Respondent

Parties

Anne Roper

Raidió Teilifís Éireann

Representatives

Pádraic Lyons BL

Marguerite Bolger BL

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-00024719-001

04/01/2019

In 1997, having been working in the respondent organisation for around nine years, the complainant was appointed to a role as a senior producer in television. When she retired at age 65 on July 9th 2018, she was an executive producer / director. In September 2017, in anticipation of her 65th birthday, she was invited to attend a retirement planning course. This began a series of communications with the HR Department in which the complainant communicated her wish to remain at work after age 65. By April 2018, it had become clear that the respondent would not allow her to stay on and, with the support of the NUJ, she attempted to have the matter resolved through the organisation’s grievance procedure. The outcome from the first stage of the grievance procedure was confirmed to the complainant on June 22nd, 2018, two weeks before her 65th birthday. Following her retirement on July 9th, she proceeded through stage two and three of the grievance procedure and the outcome of her final appeal against the respondent’s decision on her retirement was confirmed on September 4th 2018.

During the grievance process, the complainant told her employer that she enjoyed her job and she felt she could continue to be productive. In her evidence at the hearing, she said that her pension provided her with an annual income of €12,000 and she wanted some time to work out her finances. For this combination of reasons, the complainant didn’t want to retire at age 65, and she wanted instead to work for a further 18 months.

The complainant’s case is that the decision to terminate her employment because she reached the age of 65 discriminates against her on the ground of her age. She claims that that this decision is contrary to the provisions of Section 6(1)(a) of the Employment Equality Act 1998 – 2015 (“the Act”) which, when read in conjunction with Section 6(2)(f), provides that discrimination occurs when a person is treated “less favourably than another person is, has been or would be treated” because of their age.

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (1) 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 effect of this is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination lead to a presumption that discrimination has occurred. Referred to as “prima facie” evidence, the onus is on the complainant to show that, based on the primary facts, she has been treated less favourably than someone who has not reached the age of 65. The primary facts are not in dispute: the complainant was retired at age 65 and she wanted to remain at work. At the opening of the hearing, the parties agreed that, based on these facts, the complainant has discharged the burden of proof which leads to a presumption that discrimination has occurred. Having established these facts, the burden of proof now shifts to the respondent to show that discrimination has not occurred.

Opening Submission

On behalf of the respondent, Ms Bolger made a comprehensive submission setting out the organisation’s rationale for requiring employees to retire at age 65.   She referred to Section 34(4) of the Act which provides that it will not be discriminatory to determine a fixed age of retirement, if there is objective justification for doing so:    

(4) 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.

Subsection (3) relates to the ages at which employers may permit entry to a pension scheme and the age at which benefits may be drawn down and is not relevant to the case under consideration here.

Ms Bolger said that the objective of having a compulsory retirement age in the respondent organisation is to ensure intergenerational fairness across the age groups. Her argument is that, if older people are permitted to stay at work after the age of 65, many remain in senior roles and the effect of this is to prevent younger people from progressing. This in turn, she argued, has an impact on the ability of the broadcaster to produce programmes that are of interest and relevance to a younger audience.

Documents Indicating a Retirement Age of 65

In the respondent’s book of papers submitted in evidence, seven specific documents were referenced as indicating that the complainant would have been aware that she was required to retire at age 65.

1. The Contract of Employment

Clause 16 of the complainant’s contract of employment provided that, when she was appointed to the position of Senior Producer TV on April 3rd 1997, she remained a member of the DC pension scheme.

2. The Staff Manual

The respondent’s case is that the provisions of the staff manual are implied in the complainant’s contract of employment. At section 4.4 of the manual, under the heading, “RTÉ Defined Contribution Pension Scheme,” there is a reference to retirement at age 65:

“Eight months before reaching 65th birthday, the staff member will be formally notified that s/he is due for retirement at age 65 and details of benefits, options etc. will be made available to him / her by the Pensions section together with advice as to the best form in which to take benefits.”

3. The Defined Contribution Scheme Explanatory Booklet

In the booklet, the answer to the question, “When can I retire on pension?” is:

“In normal circumstances you will retire on your 65th birthday (your Normal Pension Date).”

In response to the question, “Can I retire after Normal Pension Date?” the following answer is given:

“If, by arrangement with the respondent, you remain in service after your Normal Pension Date, payment of your benefits may, if you wish, be postponed until the date of your actual retirement.”

Ms Bolger said that the complainant was very engaged with the issue of her pension, as she made efforts to join the company’s Defined Benefit (DB) Scheme, taking her case all the way to the Pensions Ombudsman. Ms Bolger argued that the complainant was aware of her pension entitlements and the requirement to retire at age 65.

4. The Annual Pension Benefit Statement

This document, provided to members of the DC pension scheme, refers to “Normal Retirement Date (as defined in the Member’s Explanatory Booklet and Scheme rules).”

5. 2012 Redundancy Offering - Statement of Projected Pension Benefits

On July 20th 2012, as part of a voluntary exit programme enquiry, Ms Emma Malone, the Head of HR said that the complainant was sent a copy of a statement of the benefits available to her from the DC scheme, which referred to a normal retirement age of 65.

6. Summary of Pension Options

In 2017, in preparation for her retirement in July 2018, the complainant received a copy of a Pension Options Statement from the pension administrator, Invesco, which showed that she was due to retire at age 65.

7. Proposal for Pay Restoration for Employees Due to Retire

At conciliation in 2015, compensation was agreed for employees who were due to retire between December 2015 and December 2017 at age 65. This was to compensate them for the fact that they would not be in employment when gradual pay restoration proposals became fully effective in December 2017.

Objective Justification for Compulsory Retirement

In late 2017, the complainant informed the Head of HR for her department that she intended to remain working after her 65th birthday on July 9th 2018. Following a meeting on February 15th 2018, on March 21st, Ms Malone wrote to the complainant setting out the reasons why she would be required to retire when she reached the age of 65.   As this letter summarises the respondent’s position on the complainant’s retirement, it is useful to reproduce the greater part of the contents here. Ms Malone wrote:

“As you are aware, 65 is the normal retirement age for RTÉ staff, it is clearly stated in the Staff Handbook which forms part of your contract of employment with RTÉ and it is a condition of the RTÉ pension scheme that payments commence on the attainment of normal retirement age at 65 (with options to retire before this date).

“Having met with you and your representative, RTÉ is satisfied that the objective grounds as to why retirement at 65 is fair, appropriate and necessary apply to you in the circumstances. While there is no doubt that you have provided a valuable contribution to the organisation over your long and loyal years of service, RTÉ’s long-established policy and custom and practice is to allow the opportunities that retirement at age 65 presents to develop and motivate staff and new recruits through the prospect of progression and promotion.

“As a Public Service Media Organisation trying to compete in a fast-changing technological world, it is crucial we present our audiences with variety and new ideas. One important way of reflecting and reacting to these changes is through our ability to recruit. This would be diminished if RTÉ’s normal retirement was increased.

“These and other objective grounds, combined with the cost involved and the loss of secure opportunities for existing staff make an extension of the retirement age inappropriate. We note that an extension could also have implications for members of all the respondent occupational pensions’ schemes.

“RTÉ fully understands its obligations under the Employment Equality Acts, 1998 – 2013 (sic) and the WRC Code of Practice on longer working however we believe that our actions are reasonable, necessary and proportionate.”

The respondent’s position is that the objective of having a retirement age of 65 is to develop and motivate new recruits through progression and promotion. This gives effect to intergenerational fairness, which, Ms Bolger said, has been endorsed and approved by the High Court, the Court of Justice of the European Union (CJEU), the Labour Court, the Equality Tribunal and adjudication officers of the WRC. Ms Bolger said that it is also an example of a legitimate aim of an employer as set out in Statutory Instrument 600 of 2017, Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order of 2017.

Programme-making for the Entire Population

The respondent’s opening submission includes a summary of the challenge faced by the broadcaster by the rise in on-demand and online platforms and the move of younger audiences to services such as Netflix and YouTube. There is a concern that under 55s are not adequately serviced by the respondent’s offering and to address this, it needs to refresh its programme offering and produce content that appeals to a broader audience. The role of the producer is important in this respect and the organisation’s view is that a reasonable cohort of producer / directors must be from a younger generation. There is a business need for content producers to be engaged with younger people. In the broadcaster however, the average age of producer / directors is 49. In the past four years, only one producer has left before retirement, one has retired, one has transferred to another unit and two were promoted as a result of restructuring. Ms Bolger said that this has resulted in an unhealthy atmosphere of stagnation across all the production grades.

Low Attrition

In 2017, the employee turnover rate at the respondent was 1% compared to an average of 9% nationally.   In 2018, the attrition rate was 2.49%, compared to the national average of 9.5% (based on IBEC’s survey of workforce turnover). Ms Bolger said that the organisation needs to have diversity across the age groups and the purpose of enforcing retirement at age 65 is because a level of turnover is needed to ensure intergenerational fairness.  

Promotion to the Producer / Director Grade

Before the complainant’s retirement in July 2018, the previous two opportunities to promote someone to the role of producer / director occurred in 2007 and 2013. When considered alongside the average age of persons in that role, it’s obvious that employees who would like to be promoted have little opportunity of being successful. This in turn, affects the organisation’s ability to bring in new ideas and approaches which is essential for its function as a public broadcaster.

In the summer of 2018, a panel of radio producers was established, comprised of many who had been stuck at junior production grades for much of the past 10 years. This facilitated the appointment of a new panel of researchers. To continue to establish these panels and to maintain a healthy age range across the producer / director range, it is necessary to impose compulsory retirement at age 65.

No Business Need to Retain the complainant

Concluding her opening submission, Ms Bolger said that there was no business need for the complainant to remain in employment after age 65. Her retirement does not prevent her from working with the respondent in an independent capacity or with an independent production company and she is welcome to submit ideas for programmes to the respondent’s commissioning editors.

In a letter dated September 4th 2018, following her appeal at the end of the grievance procedure, the respondent’s Director of HR wrote to the complainant to confirm that there would be no change to the decision to insist on her retirement at age 65. The letter summarises the arguments set out above and addresses the complainant’s contention that she should be permitted to remain on, in the same way as certain other employees who continued to work after they reached age 65. In response, Ms Cusack said that “part and parcel of how the respondent operates to deliver a service” is to engage some people over age 65 to fulfil specific requirements either on a contract for service or on an ad hoc basis. Others were allowed to remain on as employees to cover events such as referenda or the Special Olympics. Ms Cusack informed the complainant that,

“In your specific case no business need has been identified for you to be retained to fulfil a specific role. If such a business need arose, there is no reason why the respondent could not invite you to be re-engaged to provide a service.”

Case Law of the Court of Justice of the European Union

Ms Bolger said that section 34(4) of the Act which, subject to objective justification, permits discrimination on the age ground, reflects the tests of the CJEU arising from Article 6 of Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation.

Palacios de la Villa v Cortefiel Servicios SA, Case C-411/05 [2007] ECI-8531

Ms Bolger referred to this as a “landmark case” where the Court found that legislation to allow compulsory retirement at age 65 could be objectively and reasonably justified “by a legitimate aim relating to employment policy in the labour market” where the means were “appropriate and necessary” for that purpose.

Age Concern England Case C-388/07 [2009] ECR I-1569

At paragraph 46 of the judgement on this case, the Court held that the aims that may be considered legitimate, within the meaning of Article 6 of Directive 2000/78/EC and consequently, appropriate for the purposes of justifying a derogation from the principle prohibiting discrimination on the grounds of age, “are social policy objectives, such as those related to employment policy, the labour market or vocational training. By their public interest nature, those legitimate aims are indistinguishable from purely individual reasons particular to the employer’s situation, such as cost reduction or improving competitiveness.”

The Court went on however, to say that “it cannot be ruled out that a national rule may recognise, in the pursuit of those legitimate aims, a certain degree of flexibility for employers.”

Petersen Case C-341/08 [2010] ECR I-0047

This case concerned a law in Germany setting age 68 as the maximum age limit for dentists on a State panel. The CJEU held that while it might be legitimate to require dentists to retire at age 68 to protect patients from dentists whose skills might be waning, the argument was undermined by permitting dentists in private practice to continue working beyond the age of 68.

In its consideration of this case, the Court accepted the aim of sharing out panel positions among dentists across the generations. It accepted that, where the number of posts in a profession is limited, retirement at an age laid down by law facilitates access to employment by younger people. At paragraph 70 of this decision, the Court said that, if faced with a situation where there was an excessive number of panel dentists, or where there was a latent risk that this might occur, a Member State may consider it necessary to impose an age limit to facilitate access to the role by younger dentists.

Georgiev v Tecnicheski Universitet, Joined Cases C-250/09 and C-268/09 [2010] I-11869

Here, the CJEU held that the availability of recruitment constitutes a legitimate aim of the social policy of Member States, where access to a profession by young people is concerned. At paragraph 56, the Court held that the mix of generations can contribute to the quality of the activities carried out, in this case among teachers and researchers by, promoting the exchange of experiences.

Rosenbladt Case C-45/09 [2010] ECR I-9391

This case concerned a compulsory retirement age of 65 in a collective agreement for the commercial cleaning sector. The CJEU held that, while it might be humiliating, the objective of sharing employment across the generations, particularly at a time of chronic unemployment, objectively and reasonably justified a difference in treatment on the grounds of age.

Fuchs and Köhler v Land Hessen, Joined Cases C-159/10 and C-160/10 [2011] ECR I-6919

The Court of Justice found that a German state law that compelled prosecutors to retire at age 65, subject to a later retirement at age 68 if it was in the interest of the service, was compatible with Article 6. In summary, the Court decided here that the aim of providing a high-quality justice service, combined with the requirement to encourage the recruitment and promotion of young people, was a legitimate aim and in the public interest.

Irish Caselaw

Donnellan v Minister for Justice, Equality and Law Reform [2008] IEHC 467

In the High Court, Mr Justice McKechnie found that a compulsory retirement age of 60 for Assistant Garda Commissioners was objectively justified, had a legitimate aim and the means to achieve that aim were appropriate and reasonable. This decision has been relied upon in several subsequent decisions of the former Equality Tribunal, the Labour Court and by adjudication officers.

Doyle v ESB International DAC E2012-086 [2013] ELR 34

In this case, the Equality Officer found that the employer had objective reasons for having a compulsory retirement age, including the need to establish an age structure among younger and older employees to encourage the recruitment and promotion of young people and to facilitate good personnel management, the need to have regard for health and safety in the workplace and the difficulty in having different retirement ages for separate groups of workers, depending on their work.

Roche v Complete Bar Solutions DAC-E2013-197

A compulsory retirement age, while not specifically stated in a contract of employment, was found to be custom and practice in this workplace, and to be consistent with the legitimate aim of creating certainty in business planning and supporting staff morale.

Irish Ferries Ltd v McDermott EDA 31/2016 [2017] ELR 51

Here, the Labour Court found that the respondent set out the grounds that justified the need for a retirement age of 65 for certain employees. These grounds included the arduous nature of the work, which became increasingly difficult with age. The Labour Court also concluded that the setting of a maximum retirement age of 65 ensured that staff were not faced with the embarrassment of not being capable of doing their work and therefore, having to retire, rather than retiring with dignity and respect.

Transdev Light Rail Ltd. V Chrzanowski EDA 132 (29 November 2016)

At the Labour Court, the employer successfully justified the need for tram drivers to retire at age 65. The Court accepted that drivers are “safety critical workers” and that to ensure the protection of the health and safety of passengers, the public and drivers, it was necessary for them to retire at age 65.

Clinical Psychologist v Social Services ADJ-0004227 (8 March 2017)

Having regard to the EU jurisprudence, the adjudicator found that the employer had shown “a full defence to objectively justify” a retirement age of 65. The objectives put forward by the employer were to provide conditions and supports to staff that would result in a high retention rate, increased motivation and the opportunity for promotion, to create a balanced workforce which ensures that the organisation can effectively manage the departure and recruitment of staff, to ensure cohesion and to create opportunities for intergenerational fairness and renewal of teams across the organisation and to avoid disputes with employees over capacity and under-performance.

Retirement Age as a Condition of Employment

The respondent’s contention is that the reference to a retirement age in the DC pension scheme supports the case that the complainant’s employment was subject to a lawful compulsory retirement age. In this regard, the broadcaster relies on the decision of the High Court in McCarthy v HSE [2010] IEHC 75, where Mr Justice Hedigan found that the provisions of Ms McCarthy’s pension scheme had the effect of implying a compulsory retirement age into the contract of employment which was silent on the age of retirement.

Ms Bolger submitted that the McCarthy v HSE case is highly relevant, because, like Ms McCarthy, the explanatory booklet for the complainant’s pension stated that age 65 is the normal age of retirement.   Ms Bolger argued that McCarthy v HSE is consistent with the CJEU case of Palacios, which is of critical relevance to the issue of age discrimination and the need to have regard for the engagement of young people in the workforce. Ms Bolger referred to the fact that the only vacancies that occurred in the producer / director grade were in 2007, 2013 and then in 2018, with the complainant’s retirement. She said that the problem was on a par with the problem of youth unemployment in Palacios.

Eireagail Eisc Teoranta v Richard Lett EDA 1513 (31 July 2015)

On the facts of this case, the Labour Court concluded that Mr Lett did not have active or constructive knowledge of a handbook or a fixed retirement age. The Court determined however, that a retirement occurs where the employment comes to an end pursuant to a condition of employment which limits an employee’s tenure at a point where they reach a certain age.   It held that a term of employment regarding age, within the provision of Section 34(4) of the Act, can be provided in an employee’s conditions of employment either expressly or by implication, or it could be provided by incorporation with some other document or instrument, of which the employee had notice and could be read in conjunction with the formal contract of employment.

In the Transdev case, referred to above, the complainant’s contract did not specify a retirement age, but he had signed a collective agreement which provided information about the group pension, life assurance and disability scheme. Mr Chrzanowski joined the disability scheme in 2012, when he was provided with information that specified that he was expected to retire at age 65. The Labour Court found that, from the time he joined this scheme in 2012, Mr Chrzanowski was aware that the age of retirement was 65. He received annual pension statements which specified that he would retire at 65 and he accepted that he would cease making pension contributions at 65. In these circumstances, the Court was satisfied that the respondent had a contractual retirement age in respect of Mr Chrzanowski and that he knew or ought to have known of its existence.

Identifying Objective Justification

The UK Employment Tribunal decision, Bloxam v Freshfields Bruckhaus Deringer [2007] PNS L.R. 375 concluded that a graduated payment to former partners who retired early, based on the age at which they retired, constituted a proportional means of achieving a legitimate aim to achieve intergenerational fairness.

SI 600/2017, the Code of Practice on Longer Working, sets out “best principles and practice to follow during the engagement of employers and employees in the run up to retirement.” The Code identifies examples of what constitutes a legitimate aim by an employer:

§    “Intergenerational fairness (allowing younger workers to progress);

§    Motivation and dynamism through the increased prospect of promotion;

§    Health and safety (generally in more critical occupations);

§    Creation of a balanced age structure in the workforce;

§    Personal and professional dignity (avoiding capability issues with older employees);

§    Succession planning.”

It is the respondent’s case that its policy to have a compulsory retirement age of 65 aims to provide opportunities for the development and motivation of staff through the possibility of progression and promotion and that this comes within what the case law and the Code of Practice endorse as a legitimate aim of an employer.

Offer of Further Work after Age 65

In exceptional circumstances, certain employees have been permitted to remain working in the respondent organisation after the age of 65. In most of these cases, people have been offered short contracts so that their expertise can be used for work such as the Olympics or at election time. There are also several “on air” personalities who have been offered work after the age of 65 due to their appeal as radio or TV personalities.

While the broadcaster accepts that it had discretion to offer further work to the complainant after her retirement, the exceptional circumstances did not arise in her case. In this regard, reliance is placed on the decision of the Labour Court in the case of Tynan v Tradewins Ireland UDD 1851 in which the complainant sought to rely on a contractual provision regarding working beyond the age of retirement. The Court described this argument as being that “the decision as to what age an employee retires is, by virtue of that statement, totally at the discretion of the employee, irrespective of what may have been stated earlier in the contract.” The Court described the suggestion that an employer can have no input into the age at which an employee retires as “an absurdity.”

The respondent accepts that, because of the nature of its business, it offers work on a contract basis to a small number of people over the age of 65. Any person who might be identified by the complainant as a comparator, would be of similar age to her. In this circumstance, Ms Bolger argued that the complainant cannot establish less favourable treatment with reference to a comparator of a different age to her.

Concluding her submission, Ms Bolger said that the respondent is a unique employer, and a desirable place to work in the context of broadcasting in Ireland. The fact of the complainant’s retirement did not exclude her from engagement in her chosen profession through an independent production company or by operating as a freelance programme-maker herself. She said that unlike the Valerie Cox case, the complainant had a substantive contract of employment and the freeing up of her role enabled a younger person to be promoted. She said that there was no other means of achieving intergenerational fairness in the grade other than by insisting on the complainant’s retirement at age 65.

Evidence of the Deputy Director of Content

The Deputy Director of Content, Ms Niamh O’Connor, was the complainant’s line manager and, on July 3rd 2018, she a HR Manager, Ms Kathy Murphy, met the complainant to hear her complaint in accordance with stage 2 of the grievance procedure. The outcome was issued on July 16th 2018 and a copy was submitted in evidence.   In this document, Ms O’Connor and Ms Murphy are referred to as “the board,” and they concluded that,

“Notwithstanding Ms Roper’s excellent work record, the board considers that Ms Roper’s normal retirement age is 65 and that her employment terminated at age 65 by virtue of retirement and not redundancy. The board considers that retirement at age 65 is appropriate, necessary and justified by a legitimate aim. Ms Roper’s employment terminated on July 9th 2018.

“Therefore, the board does not uphold the appeal under Stage 2 of the grievance procedure.”

In her direct evidence, Ms O’Connor said that of around 60 to 70 documentaries aired by the respondent in any year, about 50 of these are produced by the independent sector. The respondent produces about 12 documentaries a year and the complainant oversaw the making of these programmes.

Ms O’Connor outlined the changes in the broadcasting landscape and the move of audiences from “linear” to digital platforms. She said that, in additional to the financial crisis being experienced at the respondent, the company was losing its younger audience at an alarming rate.   She said that the station has a statutory public broadcasting remit to service people of all generations, but that they were not doing enough for young people, with the result that while 31% of the population is over the age of 55, 57% of the respondent’s audience is over 55.

Describing the producer group as the “elite of the editorial structure,” Ms O’Connor said that it is not the case that an older person can’t make documentaries for young people, but that it is essential to have “younger voices at the table” when programmes are being developed. Currently, the respondent has 42 producers at the same grade as the complainant before she retired. There are 11 assistant producers, who, Ms O’Connor described as “stuck for the last decade” in those roles. There are 35 researchers and 15 or 16 programme assistants.

Cross-examined by Mr Lyons for the complainant, Ms O’Connor said that in the past four years, just one producer has left the station. She said that for anyone contemplating leaving to go to the independent sector, they would be taking a pay cut. She said that the producers working in the respondent are older than those in the independent sector and that this sector is more efficient at developing programmes.

Mr Lyons asked how the complainant’s retirement helped to change the age profile and Ms O’Connor said that her retirement resulted in an open competition and the opportunity to promote someone. They were able to create an executive producer role for a person in their 30s on the digital platform and a role in the documentary unit for someone in their 40s.

Mr Lyons referred to the fact that, in 2017, the respondent out-sourced the young people’s programming section. He asked Ms O’Connor how this was consistent with the remit to serve younger people. Ms O’Connor said that it is her understanding that the budget for young people’s programmes went to the independent sector. The respondent still has a group head of young people’s programmes and the same volume of programmes is delivered. Ms O’Connor said that as a result of the out-sourcing of the section, most of the employees, who were contractors, went to work for the independent companies. One producer became the group head of young people’s programmes. Another producer from that section remained working with the respondent.

Mr Lyons questioned why it isn’t possible to hear the voice of young people from others on the production teams – “surely it’s not essential for the producer to be a young person?” Ms O’Connor said that the problem is that young people are not involved in programme-making. She said that what’s needed is a mix of age groups at the editorial level. The producer has editorial control, and this limits the way in which younger views are accessed. She agreed that the respondent has no influence on the age profile in the independent companies and that what counts is their ability to deliver programmes.

Evidence of the Group Head of Factual

The Group Head of Factual, Mr Mac Giolla Phádraig heard the complainant’s grievance at stage one of the procedure and he upheld the decision of the Head of HR to insist that the complainant retired on July 9th 2018.

Mr Mac Giolla Phádraig said that he became a producer 12 years ago, when he was 30. He said that after the financial crash in 2008, advertising revenue dropped dramatically, and there was less income from the licence fee. Despite the impact of the emergency pay cuts from 2009, brought about by the financial emergency measures in the public sector (FEMPI), employees at the respondent stayed on and turnover reduced dramatically. Mr Mac Giolla Phádraig said that following a redundancy offering, more younger people left compared to older staff. He said that he and Ms O’Connor have tried to create some movement following retirements from radio. They have put together a panel of producers and they will continue to promote from within.

Following the complainant’s retirement, Mr Mac Giolla Phádraig said that another person was recruited as an executive producer and that this resulted in a significant improvement in morale. He said that the prospect of no one retiring over the next five years means that “we won’t have an RTÉ.” He said that the complainant has the option of pitching to make programmes through the e-commissioning system.

In cross-examining, referring to the FEMPI pay cuts, Mr Lyons said that the fact that pay had now been restored must have had a positive effect on morale, but Mr Mac Giolla Phádraig said that the best way to get a pay increase is with promotion and that promotion has a more significant impact on morale, with the opening of a job and the appointment of someone new.

Mr Lyons referred to a proposal the complainant presented to management in 2012 for a training course for assistant producers. She planned to develop and deliver this course. Mr Lyons suggested that, if the course had been offered, it would have gone some way towards upskilling assistant producers on new platforms and new technologies. Mr Mac Giolla Phádraig said that the course wasn’t run because there were no opportunities for assistant producers to move into the senior producer / director role.

Evidence the Head of Human Resources, Content

Ms Malone, the Head of HR for Content, said that the broadcaster’s Content Division is responsible for all the station’s output, apart from news and current affairs.   She said that the producer / director role is at the heart of programmes. From a career perspective, this is a highly sought-after, premium role.   The last open competition for a producer / director was in 2013, when six people were promoted and went on a producer’s training programme.

Since August 2017, Ms Malone said that there is a new “One RTÉ” organisational structure where staff work across radio, television and digital. Normal retirement age for all employees is 65, although staff on the superannuation pension can retire at age 60, provided they have completed 40 years of service.

Regarding working after the age of 65, Ms Malone said that if a business case is made for someone to stay on, they might be retained for a short period to coincide with an event, such as the 100th anniversary of 2016. Ms Malone referred to specific “on air” presenters and others who worked as independent contractors after they retired at age 65.

Asked why it is necessary to have a retirement age, Ms Malone said that attrition in the organisation is very low and there is virtually no movement between the grades.   In March 2018, Ms Malone confirmed to the complainant that she had to retire at age 65. The grievance process took the following course:

Stage 1, June 5th 2018: Mr Mac Giolla Phádraig heard the complainant’s case with a member of the HR team. The complainant was represented at all stages of the process by the Mr Séamus Dooley of the NUJ.

Stage 2, July 3rd 2018: Ms O’Connor and a member of the HR team conducted a full investigation.

Stage 3, July 25th 2018: The HR Director, Ms Eimear Cusack heard the complainant’s appeal of Ms O’Connor’s decision. Ms Cusack was accompanied by Mr Declan McBennett, the Head of Sport.

Ms Malone said that as a result of the complainant’s retirement, there has been an opportunity to re-structure and combine two departments. A new producer / director has been appointed and some of the salary budget saved has been used to award allowances to the executive producers.   The setting up of researcher panels is being explored. Further retirements at the level of producer / director are pending and this will give more opportunity for staff movement.

Arising from a voluntary severance programme in 2013, five producer / directors opted for redundancy; however, these positions were then supressed and the opportunity for advancement into these roles has been removed. Since then, staff have been frustrated with the lack of opportunity for development. Ms Malone described the group working in production as “highly qualified, ambitious people” and she said that “the dream is to be a producer / director.”

In cross-examining by Mr Lyons, Ms Malone accepted that the complainant’s contract does not specifically state that she must retire at age 65. Nowhere in the contract of employment is there a reference to the staff manual.   While the DC scheme booklet refers to a “normal retirement age of 65,” Mr Lyons said that nowhere in this document does it say that a member must retire at 65.

Mr Lyons suggested to Ms Malone that, while the respondent might argue that it is well known that people retire at 65, the complainant could see that some people were still working after the age of 65. Ms Malone said that “on air” people who work on after age 65 are not comparable to the complainant. Mr Lyons named four employees, all of whom happened to be men, who remained working after the age of 65, but who were not “on air.” Two were producers, one was a camera operator, and another was a newsroom employee who worked for 18 months after his 65th birthday.

Evidence of the Director of Human Resources

Ms Cusack gave evidence on the second day of the hearing. With the Head of Sport, Mr Declan McBennett, she heard the complainant’s appeal against the decision to retire her at age 65.

Ms Cusack said that, with 1,800 direct employees, the respondent is a good employer with progressive benefits and that the biggest challenge, from a HR perspective, is the low attrition rate which is currently 2.1%. She said that this points to a stagnation of ideas and the failure to create opportunities for young people. She said that more turnover is required to bring in new skills.   A vacancy for a researcher’s position will result in 300 to 400 applications. This role offers an opportunity for journalism students and young programme-makers to get a step on the career ladder to become a producer.   Documents submitted for this second day of the hearing show that the problem is compounded by the fact that most people who leave are from the technical and digital support staff and not from programme-making.

The producer / director grade is the highest grade in programming and when someone retires, there is a huge number waiting for this opportunity. Ms Cusack said that the reason the complainant was not permitted to remain at work is because there was a need to promote someone into the role of producer / director. The last two opportunities to fill a vacancy for this role arose in 2007 and 2013.   After the complainant retired, Ms Cusack said that one person was promoted internally, and a new person was recruited. She said that the skills to replace the complainant were readily available.

In the last five to seven years, 98 people have retired. In 2018, two people stayed working beyond age 65 to cover the referenda and one person who is a particularly skilled camera person, has remained on. There have been no extensions of contracts for producer / directors. Of the employees who are still at work in the respondent over the age of 65, Ms Cusack reiterated the evidence of other witnesses who said that these are generally “on air” personalities who have a personal “brand” that appeals to the respondent’s audience.

Ms Cusack said that in 2018, the broadcaster had a deficit of €13m. Some of the proceeds of the sale of land in 2016 and 2017 was used to fund a voluntary redundancy package and there was approval to offer 300 redundancies; however, only 148 people applied. She said that the average age of employees must come down from age 47 to somewhere around the mid-30s.

In response to questions from Mr Lyons, Ms Cusack agreed that there was no specific reference to a retirement age in the complainant’s contract; however, she said that her contract provides that she must agree to abide by the regulations in the Policy and Procedure Manual and this provides that the normal age of retirement in the respondent is 65.

Mr Lyons however, argued that when the complainant looked around her at work, she saw people who did not retire at 65, some of whom did not work “on air.” Ms Cusack said that some people have come back to work on specific projects and there are self-employed contractors who are over 65.

Mr Lyons referred to the data prepared by the respondent for the second day of this hearing which shows that while 98 people retired between 2012 and 2019, 20 people, equivalent to 20%, have continued in employment after the age of 65. Ms Cusack said that some of these were for short periods of one or two months.

Mr Lyons argued that the DC pension explanatory booklet is not a legal document. Ms Cusack said that this document is issued to members of the scheme every year and it provides that retirement is at age 65.   Mr Lyons said that the booklet also provides that it is possible to retire after the normal retirement age by arrangement with the employer. Mr Lyons said that while the complainant received these documents, she only looked at the “end figure,” the amount she was due to receive as a pension.  

Mr Lyons referred to one of the employer’s stated purposes of retiring people at 65, which is to avoid stagnation. However, he pointed to several personalities who continue to present programmes for the respondent who are over the age of 65. Ms Cusack explained that some of these are personalities who are popular with a certain audience, others have a following concerned with their expertise and others are well-known and popular presenters or pundits. She said that some well-known presenters support the retention of audience share. She also pointed out that these older people are not on air constantly, but for certain programmes. Mr Lyons asked why the policy that applies to others could not be applied to the complainant and Ms Cusack replied that there was no requirement to retain a producer.

Mr Lyons argued that the proposition that a retirement age of 65 is required to make the respondent more relevant doesn’t make sense when a significant proportion of documentaries are sourced externally. Ms Cusack agreed that when the respondent goes outside to consider proposals for documentaries and programmes, there is no constraint, and there is no requirement to only take programmes from young producers. Ms Cusack said that the broadcaster is not taking a position that older people can’t create programmes for young people, but that it needs to be relevant to a changing audience. Not having a compulsory retirement age for producers and directors means that young people aren’t “coming up the ranks.”

In response to Mr Lyons’s question about whether it’s possible to achieve perspective with the independent producers, Ms Cusack said that the respondent needs to promote and generate fresh content.

Opening Submission

The complainant has enjoyed a diverse and successful career with the respondent, culminating in a highly acclaimed two-part documentary entitled, “No Country for Women,” broadcast in June 2018. Mr Lyons referred to the complainant’s “entire canon of work and the evidently high standard achieved by her final documentary series,” demonstrating that she is “a person at the pinnacle of her chosen profession.”

Mr Lyons outlined the circumstances in 1986, when the complainant started working with the respondent, when she was not permitted to join the organisation’s superannuation pension scheme. The reason given to her at the time was because of the possibility that, as an American, she would return to the United States and ultimately enjoy the benefits of her husband’s pension. In 1991, she was appointed as a producer / director and In June 1992, she was permitted to join the DC scheme.

At the outset of his summary of the case for the complainant, Mr Lyons referred to the appeal at the Labour Court of Connaught Airport Development Limited trading as Ireland West Airport Knock against the decision of the adjudicator in the complaint of Mr John Glavey (EDA 1710). Mr Glavey was compulsorily retired when he reached the age of 65. His contract of employment did not specify a retirement age and the Court concluded that “there was no express term in his conditions of employment requiring him to retire at age 65 and, in the Court’s opinion, no such term can be regarded as having been implied or incorporated on any of the accepted tests.” Finding that Mr Glavey had been dismissed because of his age, the Court disallowed the appeal.

Chronology Leading to Retirement at Age 65 on July 9th 2018

On October 9th 2017, in anticipation of her 65th birthday in July the following year, the complainant received an invitation to a pre-retirement course in November 2017.   About 10 days later, she received a second later, which as clear in its intent:

“On 9 July 2018, you will reach the organisation’s retirement age of 65 and accordingly, will be completing your employment with the respondent on that date.”

The complainant’s case is that her contract contains no reference to a retirement age, and, on this basis, there is no age of retirement which is “legally binding and / or enforceable upon her.”

On December 6th 2017, the complainant met with the Head of HR for her section, Ms Annette Malone and informed her that she would like to remain at work after age 65.   Ms Malone told the complainant that it was likely that the respondent would hold to its decision to require the complainant to resign the following July.

In February 2018, the complainant wrote to Ms Malone and confirmed her intention to remain at work after her 65th birthday. She referred to SI 600/2017, the Code of Practice on Longer Working, and she claims that the respondent has failed to adhere to this Code. On February 15th, the complainant attended a meeting with Ms Malone and a colleague from the HR Department. She was accompanied by her NUJ representative.   She sought to clarify if the respondent had established an objective justification for her retirement at age 65, as provided for in the Code of Practice on Longer Working. She said that the HR personnel provided no satisfactory explanation or justification for requiring her to retire. At this point, the complainant sent an e mail to Ms Malone to formally register her disappointment at the respondent’s refusal to discuss the possibility that she could work beyond age 65.

On March 21st 2018, Ms Malone replied to the complainant’s mail of February 15th (and follow-up mail of March 13th). Details of her response has been recorded in the previous section under the heading of “Objective Justification for Compulsory Retirement.” The complainant invoked her right to an investigation into her compulsory retirement in accordance with the broadcaster’s grievance procedure. On April 9th 2018, in correspondence confirming her decision to do so, she noted that the respondent is not currently recruiting new employees and the suggested justification for her retirement, that of encouraging recruitment and bringing variety and new ideas into the station, “does not withstand basic factual scrutiny.” She asked the respondent to consider her request to remain at work after she reached age 65, having regard to her undisputed ability to generate variety and attract audiences, as well as her capacity to innovate in a fast-changing, creative media organisation. She noted that her abilities will not cease or diminish upon reaching the age of 65 and she requested that her grievance be dealt with expeditiously.

Despite hers and her union’s efforts to have her grievance heard and, with her proposed date of retirement looming, a hearing wasn’t scheduled until June 8th 2018. The meeting was chaired by the complainant’s line manager, Ms Niamh O’Connor and the complainant was represented by Mr Séamus Dooley. Mr Dooley’s statement at the grievance meeting was included in the complainant’s book of papers at the hearing of her complaint. His submission is based on the following points:

1. The complainant was issued with a contract of continuous employment on April 3rd 1997 and the contract makes no mention of a retirement date or an age at which the complainant must retire. It does not refer to the staff manual and the complainant was not issued with a copy of the manual when she was issued with her contract. For this reason, the respondent cannot rely on a contractual term because there is no provision for retiring at age 65 in the complainant’s contract.

2. The Code of Practice on Longer Working recognises that managing an older and diverse workforce in a positive way delivers greatest value by “looking at how best to maximise the experience and skills of older workers and to harness and accommodate those experiences and skills to the advantage of the business.” As a person with a diverse range of skills, enforcing the complainant’s retirement conflicts with the principle of encouraging knowledge-sharing and the utilisation of skills and experiences of all workers.

3. To exclude workers over the age of 65 from continuing as executive producers is to send a negative message, not just within the respondent, but to the audience, who would be denied the opportunity to have programmes produced by older workers.

4. The complainant rejects the implication that older workers cannot embrace technological change. She has a track record in innovation in staff development and training and is recognised for her extra-curricular work in this area.   There are no capability issues regarding the complainant and her retention achieves a balance of age and gender in the producer / director grade, consistent with the respondent’s stated policies on diversity.

5. The respondent’s staff manual makes a provision for employees to continue working after age 65. This was noted in the determination of an adjudication officer in the case of a former employee, Valerie Cox (ADJ-00006972).

6. The respondent’s comments regarding variety and new ideas would lead to a conclusion that older workers on contracts of service, independent contractors and sole traders are incapable of fresh thinking and this approach is patronising and ageist.

7. The respondent has not been consistent in its application of the requirement to retire at age 65. Following his retirement, the former Group Head of HR was retained as a consultant and there is a long-standing practice in News and Current Affairs of engaging retired staff for special projects. Even if the retirement policy was consistently applied, the respondent cannot rely on this as it takes no account of the Code of Practice on Longer Working introduced in 2017. It cannot be argued that this statutory instrument is of no effect due to custom and practice in the station.

8. The respondent cannot impose an age bar on the personnel involved in independent productions.

9. Mr Dooley said that, given the effective recruitment bar that still applied (in 2018) and the numbers departing on voluntary redundancy, the reference to needing to recruit new employees is difficult to understand. the respondent has not been consistent in its policy of replacing people who retire with younger recruits.

10. There is no statutory retirement age in the legislation governing the establishment of the respondent.

Mr Dooley argued that the respondent has not demonstrated that there are objective grounds justifying the complainant’s retirement at age 65.

By June 22nd 2018, the complainant’s application to remain at work was rejected and her complaint under the grievance procedure failed to achieve the outcome she hoped for. Mr Dooley informed the HR Department of the complainant’s intention to appeal the decision and on July 3rd, a meeting took place in accordance with stage 2 of the grievance procedure. Mr Dooley referred to the provision for normal working to continue pending a resolution of the grievance procedure. At the meeting, the complainant said that she would like to work for at least 18 months after her 65th birthday which, on July 3rd, was in six days. However, on July 9th, the complainant’s employment was terminated with compulsory effect. On July 16th, the HR Department issued a letter confirming that stage two of the grievance process had failed to reverse the respondent’s decision to enforce the complainant’s retirement.

On July 25th 2018, the complainant appealed against the decision of the managers at stage 2 of the grievance procedure. The HR Director, Ms Eimear Cusack heard the appeal, accompanied by Mr Declan McBennett of the Sports Department. On September 4th, Ms Cusack rejected the complainant’s request to continue working, explaining that;

“There are very limited opportunities for staff to progress to the producer / director grade which you held. The two most recent opportunities in Dublin were in 2007 and 2013. We note that the average age of producer / directors is 47.89 years and combining that with the low turnover highlights the lack of opportunities for other workers to progress to this highly sought-after role.”

The complainant’s Position that Discrimination at Age 65 is Discriminatory and Unlawful

Mr Lyons submitted that the respondent has acted unlawfully and in breach of the Employment Equality Act by:

1. Compelling the complainant to retire based on the incorrect factual and legal premise that she was contractually required to do so;

2. Failing to show that compelling the complainant to retire at 65 corresponds to a real need and a legitimate objective in the respondent and failing to demonstrate that compelling her to retire was an appropriate or necessary means to achieve that objective;

3. Failing to manage the grievance process effectively or expeditiously;

4. Failing to consider the complainant’s request for an extension of her employment in accordance with policies now relied upon by the respondent or in accordance with the Code of Practice on Longer Working.

Legality of the respondent’s Decision to Enforce the complainant’s Retirement

Assessing the legality of the respondent’s decision, Mr Lyons referred to the first response provided to the complainant by Ms Malone in March 2018 that “…it is clearly stated in the staff handbook which forms part of your contract of employment with the respondent and it is a condition of the respondent pension scheme that payments commence on the attainment of normal retirement age at 65 (with options to retire before this date).”   Mr Lyons reiterated that the complainant’s contract makes no reference to the staff handbook and he argued that the handbook did not form part of her contract and therefore, its contents could not be relied upon to impose a compulsory retirement age. According to Mr Lyons, it follows that “the starting point taken by the respondent in relation to the issue of the Claimant’s retirement is, and has at all times, been fundamentally flawed and erroneous from inception.”

Regarding the need to encourage promotion and the recruitment of new staff, Mr Lyons said that it is not credible to suggest that the complainant’s retirement provided motivation for staff and he submitted that the respondent cannot adduce convincing evidence to show that her retirement is both objectively justified and necessary to achieve a legitimate and proportionate objective of the organisation.

The complainant relies on the fact that the respondent has in the past and, continues to retain persons over the age of 65 under contracts for service and contracts of service in certain instances for the provision of television broadcast services.   Mr Lyons provided a list of 15 current and former employees who continue to work and who are over the age of 65. This list is made up of 13 men and two women, all of whom are 70 or over. Most are presenters, but four are producers and one is a technician. the complainant’s case is that this “demonstrates the fallacy underlying the respondent’s contention that objectives of intergenerational fairness, career progression and promotion justify the termination of her employment.” Mr Lyons argued that, if it exists at all, the policy of enforcing retirement at age 65 is applied selectively and in the case of the complainant, has been applied unreasonably and unlawfully. In fact, Mr Lyons suggested, the respondent has no demonstrable policy of taking steps to develop the careers of younger staff. Young people’s programmes, which was the primary training ground for young production staff, was outsourced in 2017. Rather than working to progress the careers of young employees, Mr Lyons submitted that the respondent “has followed a policy of short-termism in relation to employment issues,” by favouring an employment model based on short and fixed-term workers. It was argued that this policy is inconsistent with any objective of advancing intergenerational fairness and accordingly, Mr Lyons said that the evidence runs contrary to the case being advanced by the respondent in respect of the complainant’s retirement.

WRC Decision in the case of Valerie Cox v the respondent, ADJ-0006972

In the complaint of Valerie Cox, the adjudicator decided that the respondent was unable to demonstrate the existence of an objective justification for the termination of Ms Cox’s fixed-term employment at age 65.   Here, the respondent relied on the same justification as relied upon in the complainant’s retirement, the requirement for intergenerational fairness. During the process of having her grievance heard, the complainant referred to the fact that Ms Cox’s complaint was upheld by the adjudicator; however, the response from management was that the Cox case “did not relate to a substantive contract of employment and is therefore not comparable to you.”

Mr Lyons argued that the respondent is prevented, “as a matter of law and logic” from relying on the same justification as that advanced in Cox, the decision on which has not been appealed.

Concluding Remarks

The respondent has argued that, apart from some exceptions for “on air” staff and self-employed contractors, the retirement age for all employees is 65, the point being that this is the custom and practice in the organisation. Mr Lyons referred to the McCarthy v HSE judgement, in which reference is made to the High Court decision of Patrick J. O’Reilly v the Irish Press [1937] 71 ILTR 194. Mr O’Reilly was dismissed with three months’ notice and this case concerned a dispute about the existence of a “custom or usage” in the journalistic profession, of issuing six months’ notice.   Setting out his opinion on the meaning of “custom or usage” Maguire P. stated,

“Before a usage such as is contended for here can be held to be established, it must be proved by persons whose position in the world of journalism entitles them to speak with certainty and knowledge of its existence.   I have to be satisfied that it is so notorious, well known and acquiesced in that in the absence of agreement in writing, it is to be taken as one of the terms of the contract between the parties.”

Mr Lyons argued that the respondent cannot establish that 65 is the age of retirement in the organisation, as this practice cannot be said to be “notorious, well known and acquiesced in,” such that, it can be accepted as a term of the complainant’s contract.

Ms Bolger disagreed with Mr Lyons holding out the argument that the age of retirement in the respondent would have to have been “so notorious, well known and acquiesced in” for it to be a custom and practice in the organisation. She argued instead that the test is that established in Shirlaw v Southern Foundries Ltd. [1939] 2 KB 206 and referred to in McCarthy, of the view of an “officious bystander” who could, with some clarity, say that most people in the respondent retire at the age of 65.   She said that the exception to this is where a person remains at work where a business case is made for them to do so. No such case was made for the complainant to remain.

Relying to a significant degree on the ValerieCox case, Mr Lyons said that the finding against the respondent in that case reflects the decision of Mr Justice Gilligan in 2017 in the case of Dr Paul Quigley and the HSE, [2017 no. 9140 P]. Dr Quigley sought an injunction against the termination of his employment at age 65, on the basis that his contract did not specify an age of retirement. Granting the injunction, Gilligan J stated,

“Having regard to the matters set out herein, I take the view that the plaintiff makes out a strong case which is likely to succeed, on the basis of the contractual situation of 2001 was to the effect that the period of his employment was to be for an indefinite period and that the contractual position as between the plaintiff and the HSE has never been altered by the HSE, and no one else in the same position as the plaintiff who was involved in employment with the defendant in 2001 has been forced to retire at age 65…”

Ms Bolger argued this this case is distinguished from that of the complainant because it was quite clear that Dr Quigley’s contract was for an indefinite period.

Mr Lyons cited several other cases in support of the complainant’s case:

John O’Brien v PPI Adhesive Products Limited ADJ-00009914

Here, the adjudication officer found in favour of Mr O’Brien’s argument that his enforced retirement at age 66 discriminated against him on the age ground.

Seldon v Clarkson, Wright and Jakes, [2012] UKSC 16

In this case at the UK Supreme Court, Mr Seldon, a partner in a firm of solicitors, argued that it was discriminatory to enforce his retirement at the end of the year following his 65th birthday. The reasons given were so that associates would have an opportunity to become a partner after a reasonable period, to facilitate workforce planning and to limit the need to expel partners for reasons related to performance. Submitting that this judgement demonstrates that the aspiration of intergenerational fairness must not be confined to young people, he quoted from paragraph 62 of the judgement where Lady Hale stated,

“It is one thing to say that the aim is to achieve a balanced and diverse workforce. It is another thing to say that a mandatory retirement age of 65 is appropriate and necessary to achieving this end. It is one thing to say that the aim is to avoid the need for performance management procedures. It is another thing to say that a mandatory retirement age of 65 is appropriate and necessary to achieving this end. The means have to be carefully scrutinised in the context of the particular business concerned in order to see whether they do meet the objective and there are not other, less discriminatory measures which would do so.”

Agreeing with Lady Hale’s judgement, Lord Hope added,

“…the evolving case law of the ECJ and the CJEU has shown that a distinction must be drawn between legitimate employment policy, labour market and vocational training objectives and purely individual reasons which are particular to the situation of the employer.”

Mr Lyons argued that the respondent’s position that when an employee reaches the age of 65, a business case may be made for them to remain at work for longer is one of these “purely individual reasons” of the employer and is too narrow an objective.

Martin Donnellan and The Minister for Equality and Law Reform, The Commissioner of An Garda Síochána, Ireland and the Attorney General [2008] IEHC 467.

Early in the respondent’s submission, Ms Bolger argued that it was essential to have young people working on programmes that could be of interest to a young audience. Mr Lyons referred to paragraph 82 of the Donnellan judgement, where, quoting the Canadian case of Law v Canada (Minister of Employment and Immigration) [1989] 1 SCR 143 and the Australian case of Quantas v Christie [1998] 152 ALR 1295, Mr Justice McKechnie stated that two questions can generally be asked in the context of the imposition of age limits for certain roles:

“a) are the characteristics that are cited to justify the act of discrimination legitimate and justifiable grounds for distinguishing between two people, b) is age an effective and reliable proxy for the relevant characteristics or a necessary differentiating tool for determining whether an individual possesses those characteristics.”

Mr Lyons submitted that it is an error to conclude that an older person cannot carry out the full remit of the job of programme-making, including the making of programmes for a young audience.

Referring to the findings of the High Court in the McCarthy v HSE case, Mr Lyons submitted that I must consider the outcome of the CJEU case in Minister for Justice and Equality and Commissioner of An Garda Síochána v the Workplace Relations Commission[2019] 30 ELR 57, where the Court of Justice ruled that the WRC has a right to depart from national decisions to give effect to the primacy of EU legislation.

Finally, Mr Lyons referred to the Introduction to the Staff Manual, which states that,

“In the event that this document contains any term or condition that is not the same as specified in the contract of employment, then the provisions of the contract prevail.”

Evidence of Anne Roper

Mr Lyons asked the complainant to respond to the contention that it is well known in the broadcaster that the retirement age is 65. The complainant said that her contract makes no mention of a retirement age, and she understood that she had a contract of continuous employment. She didn’t know that she had to retire at 65 and she didn’t know that this was the policy in the respondent.

Mr Lyons referred to documents produced in evidence by the respondent. In the context of a voluntary redundancy programme in September 2017, the complainant and DC pension scheme members were issued with a letter from the pension administrator which set out the value at the time of the DC pension and the options for employees considering the redundancy package.   The letter clearly states that “normal pension age” is 65. The complainant said that she has no recollection of getting this letter.   Also, because her contract did not state that she had to retire at 65, she didn’t think the pension age in the letter applied to her. Mr Lyons also referred to a letter dated July 20th 2012, sent to DC scheme members in the context of an earlier redundancy programme. This refers to “your normal retirement date” as the member’s 65th birthday. The complainant said that she didn’t get this letter either and she gave no consideration to the redundancy proposals in 2012 or 2017.

Mr Lyons referred to the benefit statement issued annually to members of the DC scheme pension, which, on page 2, refers to a “normal retirement age” of 65. The complainant said that, while she was working, she was busy, and she only looked at “the bottom-line figure” on this statement.

The complainant said that she first heard that the respondent intended her to retire at 65 in October 2017, when she got an invitation to attend a pre-retirement course.   This came a short few weeks after receiving a letter inviting her to apply for early retirement under the 2017 voluntary leaving programme.

The complainant described the meeting on December 6th 2017 with the Head of HR for her section, Annette Malone at which she informed Ms Malone that she intended to keep working. She also described the follow-up meeting on February 15th at which she and her union representative drew Ms Malone’s attention to the Code of Practice on Longer Working. She said that the organisation appeared to have no knowledge of the Code. In a follow-up letter to Ms Malone on the same day, she asked for the respondent’s objective justification for requiring her to retire at 65. On March 21st, Ms Malone replied with the respondent’s stated position that her retirement at age 65 was justified by the objective to “develop and motivate staff and new recruits through the prospect of progression and promotion.” Ms Malone also said that the ability to recruit new employees is “one important way of reflecting and reacting” to the changes presented by a “fast-changing technological world.” The complainant said that she felt that her employer didn’t know what she did. She was working in a fast-changing technological world, she was self-shooting and she had been making films on a mobile phone since 2008 or 2009. She had engaged in multi-platform training, she could make programmes inexpensively and she was training others to do the same. Everyone on her team was making programmes. Around this time, she was in the completion stage of her documentary, “No Country for Women.” She said that this was the subject of a newspaper editorial and trended on Twitter.   She said that her skills didn’t age “just because the calendar turned.”

Asked about people that she observed in the respondent who continued working into their 70s and 80s, the complainant said that she thought that they had contracts like hers, with no retirement age. She was asked for her opinion of the respondent’s concern that people are not inclined to leave the organisation. She referred to her cohorts in 1990 – 1991 when she did her producer’s training course. She said that everyone who did the course with her left. With the closure of young people’s programmes two or three years ago, she said that the majority who left were young people.

Mr Lyons asked the complainant about her understanding of the retirement provisions in the Staff Manual, which, under the heading, “Working After Normal Retirement Date,” states, “In cases where the respondent requires a staff member to remain in employment after the normal retirement date of 65, this must be done on the basis of issuing a once only fixed-term contract for the period required.” The complainant said that the first time she saw the Staff Manual was at the meeting with Ms Malone on March 15th 2018.

Cross-examining of the Complainant

Ms Bolger asked the complainant about her grievance concerning the respondent’s refusal to allow her to join the superannuation scheme when she was appointed to a permanent role in 1991. The complainant said that she knew that the scheme had closed to new members, but then she said she heard that 44 people were permitted to join. In 2005, she made a complaint to the Pensions Ombudsman, but her complaint was not upheld. Ms Bolger suggested to the complainant that she was “on top of” the pensions issue and she knew that she had to retire at 65.

Ms Bolger referred to the Staff Manual and the provision that eight months before an employee reaches their 65th birthday, they will be notified of their pension date.   The complainant repeated that she never received a copy of the Manual and that she didn’t read it. She also said that she didn’t read the DC pension scheme explanatory booklet which, in answer to the question, “when can I retire?” states, “in normal circumstances, you will retire on your 65th birthday (your normal pension date).” The complainant said again that she thought that she had a contract that hadn’t got a normal retirement date and that she didn’t get the July 2012 letter with information about pension benefits in the context of a voluntary redundancy scheme.

Referring to the letter of March 21st 2018 in which the Head of HR, Ms Malone, set out the respondent’s position regarding the complainant’s request to remain at work after the age of 65, Ms Bolger suggested that it would be very rare for someone in the role of an executive producer to stay on. She said that one way of achieving intergenerational fairness is to promote younger people and recruit new employees, but it seemed that the complainant was focussed on the value of her skills and experience. The complainant said that one of the ways she can support intergenerational fairness is to help others to become programme-makers.

Ms Bolger referred to the training programme proposed by the complainant in 2012, which didn’t go ahead because of the recession. She asked where a highly-trained producer could go, if there was no opportunity for promotion? The complainant said that there is an absence of people who are skilled across all the media platforms. She said that producers who are not promoted have the option to remain with the respondent and there are also opportunities in the independent sector.

Evidence of the Assistant General Secretary of the NUJ, Mr Séamus Dooley

In response to questions from Mr Lyons, Mr Dooley said that his objective, and that of the complainant, was to get to the end of the grievance process before the complainant’s 65th birthday on July 9th 2018. He said that it was regretful that this didn’t happen.

Mr Dooley agreed that, in the station, most people retire at age 65, but he said that retirement at that age is not compulsory. He said that the distinction between “normal retirement date” and pension age are not axiomatic. “Normal” allows for the possibility of working beyond age 65.   Referring to the absence of any mention of a retirement age in the complainant’s contract, Mr Dooley said that if it was intended for the contract to stipulate that it was compulsory for the complainant to retire at age 65, this would have been stated.

Cross-examining of Mr Dooley

Mr Dooley agreed with Ms Bolger that the normal age of retirement is 65. He said that it is the respondent’s policy that most people retire at age 65 and he clarified that the complainant was seeking a fixed-term contract for 18 months after her 65th birthday.

Ms Bolger referred to the agreement between the respondent and the Trade Union Group on pay restoration following the pay cuts implemented in 2009. Pay restoration was phased over three years between 2015 and 2017 and it was agreed that people retiring at age 65 between the start date and the end date of the agreement would receive lump sums. Mr Dooley said that nowhere in this agreement is there a provision that people must retire at 65 and the pay restoration negotiations were not about retirement. Mr Dooley said that the complainant should have been allowed to continue to work for an agreed period in the same way as another named producer.

In re-direction, in response to a question from Mr Lyons, Mr Dooley referred to the work that this named producer worked on when he was over age 65. He described the programme as a “young, edgy programme.”   Mr Dooley said that in the run-up to retirement, if someone expresses an interest in remaining at work for a specific length of time, there must be a way of finding a role for them.

The Legal Framework

The legal framework prohibiting discrimination based on age is set out at section 6(1) of the Employment Equality Act 1998 – 2015 (“the Act”).

“…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 of the grounds specified in sub-section (2), in this Act, referred to as the ‘discriminatory grounds’…”

At sub-section 6(2)(f), “the age ground” is listed as one of the nine discriminatory grounds.

Section 34(4) was inserted into the Act by the Equality (Miscellaneous Provisions) Act 2015 as a qualifying provision permitting different treatment based on age. The objective of this insertion was to support the establishment of a general framework for equal treatment in employment and occupation, set out in Council Directive 2000/78/EC. Article 6 of the directive provides that,

“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.”

Reflecting this wording, section 34(4) of the Act provides that,

“… 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.”

From the perspective of the associated legal provisions related to this case, the Code of Practice on Longer Working (SI 600/2017) provides guidance for employers and employees in the context of a desire on the part of some older workers who would like to remain in employment beyond the traditional retirement age of 65 years.

While the provisions of the Code are not legally binding, its guidance is set in the context of demographic, social and regulatory changes in Irish society:

§    Improvements in health and lifestyle means that we are living longer and therefore, living a greater proportion of our lives as non-working older people;

§    It is desirable to consider how our workplaces can encourage the retention of older people who want to work beyond the age of 65;

§    Since 2014, the State pension age is 66 and it will increase to 67 in 2021 and 68 in 2028;

§    There is no mandatory retirement age in the private sector and the Public Service Superannuation (Age of Retirement) Act 2018 provides that, subject to some exceptions, public service employees recruited after April 2004 will have a mandatory retirement age of 70.

Against this background, the Code recommends ways in which older workers can be supported to make a valuable contribution at work, while acknowledging that compulsory retirement at a specified age will not constitute discrimination if it can be objectively justified by a legitimate aim, including the aim of intergenerational fairness.

Case Law

A considerable volume of case law was submitted by both sides as authorities for their respective positions and it is beyond the scope of this decision to assess the relevance of each one. I intend therefore, to briefly examine the precedents which were identified as significant.

In support of the respondent’s position, Ms Bolger referred to the 2007 judgement of the CJEU in the case of Palacios de la Villa v Cortefiel Servicios SA. This concerned the legality of a compulsory retirement clause in collective agreements in Spain which provides that employees in certain sectors must retire at age 65. At paragraph 72, the judgement states:

“It does not appear unreasonable for the authorities of a Member State to take the view that a measure such as that at issue in the main proceedings may be appropriate and necessary in order to achieve a legitimate aim in the context of national employment policy, consisting in the promotion of full employment by facilitating access to the labour market.”

Having examined this judgement, I find that it is concerned with “national employment policy” in a member state of the EU with a high level of unemployment and a desire to facilitate a greater degree of participation in the workforce by the unemployed. This does not reflect the circumstances of the complainant and the respondent, where her retirement resulted in the promotion of just one individual in one organisation, in a country where unemployment is relatively low.   Also, in Palacios, employees who were subject to the collective agreement were required to retire at age 65 if they had “satisfied the conditions laid down in social security legislation for entitlement to a retirement pension…” (paragraph 22).   At age 65, the complainant did not satisfy this condition.

The case of Petersen in 2010 was concerned with panels of dentists in Germany and the compulsory age of retirement was 68.In Georgiev v Tecnicheski Universitet, (also 2010) the judgement of the CJEU applied to third level lecturers in Bulgaria.   Like the dentists in Petersen, the lecturers’ conditions of employment permitted them to remain at work up to the age of 68. The 2011 case of Fuchs and Köhler, was concerned with the retirement age of judges in Germany. In each of these cases, the outcome applied to an identifiable group of workers such as dentists, judges, university lecturers and, in Palacios, the members of a collective agreement. These decisions were reached in a national context and concerned matters of national policy. I find that, apart from their general jurisprudence, as the complainant occupied a unique role in a national broadcaster, of which there is only one (national broadcaster) in Ireland, I do not find that the broad scope of the decisions referred to here are applicable to the instant case.

The respondent relies on the decision of the High Court in 2011 of McCarthy v HSE, and the finding of Mr Justice Hedigan that, while her contract made no mention of a retirement age, it was not unlawful for the HSE to compulsorily retire Ms McCarthy because her pension scheme provided that she was entitled to her pension at age 65. I note from an examination of the judgement that Ms McCarthy was a member of the HSE’s superannuation scheme and one of the rules of the scheme was that contributions ceased at age 65, which was the age of retirement in the HSE for employees who, like Ms McCarthy, joined before 2004.   I note that the complainant’s DC pension provided that she would retire “In normal circumstances,” at age 65 and there was no limitation on her continuing to make contributions after that age.

The case of Donnellan v Minister for Justice, Equality and Law Reform, like McCarthy v HSE, pre-dates the enactment of section 34(4) of the Equality Act; but its findings have been frequently cited as establishing an employer’s entitlement to prescribe a specific age of retirement. In his judgement, Mr Justice McKechnie reflected on the fact that Mr Donnellan had the benefit of a generous pension and lump sum. Before concluding, he stated that the case in hand turned on its own facts and “should not be taken as supporting the general legitimacy of all mandatory retirement or reporting ages.”

Mr Lyons relied on the Labour Court determination of 2017 in Connaught Airport Development Limited and John Glavey. Here, the employer appealed against a finding by an adjudication officer that Mr Glavey’s retirement at age 65 was discriminatory. The Labour Court concluded that Mr Glavey had not been informed that he was required to retire at age 65 and,

“There was no express term in his conditions of employment requiring him to retire at age 65 years and, in the Court’s opinion, no such term can be regarded as having been implied or incorporated on any of the accepted tests.”

From a contractual point of view, this finding reflects accurately the circumstances of the complainant. However, unlike the complainant in the case under consideration, Mr Glavey opted not to join his employer’s pension scheme and he was therefore ignorant of any pension-related information regarding a retirement age. I’m not convinced by the complainant’s assertion that she was unaware that the “normal retirement age” of 65 in the respondent, might apply to her. For these reasons, unlike the circumstances of the Glavey case, I must consider the defence of objective justification.

Contractual Obligation to Retire at Age 65

Before considering the respondent’s case that the complainant’s retirement was objectively justified in accordance with section 34(4) of the Act, I wish to examine its position that her retirement at age 65 was implied in her contract of employment.

The complainant’s contract contains no provision regarding a retirement age. It was argued that the terms of the Staff Manual are implied in her contract. Section 4.4 of the Manual refers to employees being notified eight months before they reach the age of 65 that they are due to retire at that age. However, section 4.12 has the title, “Working after normal retirement date” which may be arranged on the basis of a once-only fixed-term contract. It is apparent therefore that the Staff Manual provides for the possibility of working beyond age 65. Also, I note the observation of Mr Lyons that the Manual contains no statement to the effect that an employee must retire at 65.

The Explanatory Booklet for the DC pension scheme states, “In normal circumstances, you will retire on your 65th birthday.”   The implication here is that there are circumstances in which a member may retire at a different age, either younger or older than 65. The booklet explains that if a person retires after age 65, their benefits may be postponed until their later retirement.   It’s clear therefore, that, from the perspective of the rules of the DC pension scheme, there is no impediment to a member working past age 65.

Annual benefit statements sent to the complainant refer to “Normal Retirement date (as defined in the Member’s Explanatory Booklet and Scheme rules)” and a “normal retirement age” of 65.

Based on the evidence submitted at the hearing of this complaint, I accept that most people working in the respondent retire at age 65. I find however, that, while 65 is the normal retirement age, a significant number do not avail of this option. Data submitted by the respondent shows that between January 2012 and June 2019, 98 employees people retired at age 65 and 20 people continued working after they reached that age, equivalent to 17% of those who reached age 65 between 2012 and 2019. Many of this group worked for a short few months, but others for a year or more.   The reasons given for remaining on were various; some were associated with the 2016 Olympics and the referenda in 2015 and 2018. Four individuals were retained because of their proficiency in the Irish language and for others, there were business-related reasons for them staying on for an agreed period on fixed-term contracts.

In summary therefore, the normal age of retirement in the respondent is 65, and, for a variety of reasons, generally related to the need for an individual’s skills, there is a practice that some remain working after they reach their normal retirement age.   This cohort of post-age 65 workers is separate to the group of older people identified by the complainant, (13 men and two women) employed on contracts for service, mostly in what were referred to as “on air” roles.

Objective Justification

The respondent’s position is that it was necessary for the complainant to retire at age 65 to ensure intergenerational fairness and to facilitate the promotion of younger producers.   The broadcaster’s concern is that because attrition is so low across the organisation, there is no turnover in the producer / director grade. As a result, young people are prevented from progressing and programme-making is deprived of the ideas and input of young people. The evidence was that there is a risk is that the respondent will not be capable of making programmes that are of interest to a young audience. The respondent’s failure to attract a younger audience is shown in the statistics:   31% of the population of Ireland is over the age of 55, but the respondent’s audience comprises 57% of over 55s.

For the respondent to discharge the burden of proof that demonstrates that discrimination has not occurred, I must be satisfied that the complainant’s retirement contributed to intergenerational fairness in the organisation. I must also be satisfied that this was a legitimate aim and that it was achieved by means that were appropriate and necessary.

While I accept that “intergenerational fairness” has a generally broad objective applying to young and older workers, in the Code of Practice on Longer Working, the meaning given to the phrase is “allowing younger workers to progress” and I intend to limit myself here to that understanding.

We learned at the hearing that, following the complainant’s retirement, her role was filled internally, and this created a vacancy down the line for a new recruit. While the promotion of a producer and the recruitment of someone new may have been a positive outcome, the effect of this on the organisation was so confined and limited to one department, that I cannot accept that it was objectively justified. We learned at the hearing that the complainant was sitting in “a dream job” and that she was one of the “elite of the editorial pool.”  There had been no vacancy for this job since 2013.   It seems to me that her departure may have facilitated the temporary alleviation of disgruntlement, but as a method of achieving intergenerational fairness, it fell considerably short.

The evidence at the hearing was that the respondent had difficulties “allowing younger workers to progress” because of the low rate of attrition (2.4% in 2019). One of the solutions offered was compulsory retirement at age 65. It seems to me that there are certain problems with the application of this as a solution to low staff turnover.

In the first instance, we know that most people in the respondent retire at age 65. This trend is likely to change gradually as the members of the superannuation scheme retire and in future, all employees will retire on the less predictable DC pension. It will also be influenced by the increase in the State pension age to 68 by 2028. However, in July 2018, with most people in the respondent retiring at age 65, I find that it was unnecessary to refuse a request from one person to remain on longer.

I heard the argument that there was no business case for permitting the complainant to work for longer. I also heard the “business case” for permitting another producer to remain on after his 65th birthday, which in my view, was rather subjective.   Based on the evidence, it is my view that, compared to several other employees who, when they reached age 65, were permitted to continue working, the complainant was treated less favourably.

I understand from the respondent’s evidence, that there were no issues with the complainant’s performance; she was innovative, engaged with technology and she was particularly interested in training young producers. It is apparent to me that the ongoing occupation by the complainant of the job of producer / director was causing a sense of career stagnation in her department. It is my view that, in consultation with her, a business case could have been made for assigning her to a new, temporary assignment for a fixed-term, and in this way, freeing up her job for promotion. On this point, I note that in Georgiev v Tehnicheski Universitet, which was cited for the respondent, the plaintiff was permitted to remain at work after the normal retirement date for professors which was 65, until he was 68. In Roche v. Complete Bar Solutions, also referred to by Ms Bolger, Mr Roche was offered a fixed-term contract for one year, but he rejected this option.

Low attrition and the tendency of employees to remain with one employer for a significant proportion of their working life arises from certain organisational factors, most notably a workforce that enjoys general job satisfaction and good pay and conditions.   It is a feature of long-established and interesting workplaces, including the entire public service, where the mandatory retirement age is now 70. In the respondent, the attrition rate of 2.4% was said to be causing stagnation and the loss of the youth audience. I heard in evidence a sense that the broadcaster is hampered by the need to produce content of interest to young people, without the participation of young people in the programme-making process. I find this argument difficult to accept, because if it is true, it follows that it must be problematic for adults to make films, design computer games or write books for children and teenagers. It must be a disadvantage to be taught by an older teacher. Clearly, this argument doesn’t stand up. Every workforce has its own demographic profile, and the decision to compulsorily retire the complainant has adjusted the age profile in the respondent to such a miniscule degree that it cannot be said to have made any difference to its ability to make programmes that appeal to young people.

Appropriate and Necessary Means

Section 34(4) of the Equality Act provides that the objective justification by an employer of different treatment on the ground of age must be achieved by means that are appropriate and necessary. I do not accept that there was objective justification for the complainant’s retirement and I also find that the means to achieve the sought-after outcome was not appropriate or necessary. I have reached this conclusion due to the disproportionately negative effect on the complainant of her retirement compared to the dubious positive impact on her employer.

The negative outcomes for the complainant include her removal from a job she enjoyed and in which she had some success. I have no doubt that, as it does for most people who are not ready to retire, the complainant’s dismissal was an emotional and lifestyle challenge.   Apart from these effects, which I do not wish to minimise, the financial effect on her was significant, as she went from earning a salary of around €100,000 to a pension of €12,000.   The Assistant Garda Commissioner in Donnellan was entitled to a pension of €60,000 and he received a lump sum of more than €200,000. Mr Doyle, in Doyle v ESB, was a member of what was described as “an award-winning pension.” In Roche v Complete Bar Solutions, the Equality Officer referred to the fact that Mr Roche had “access to two income streams – an occupational pension and the State pension.” the complainant had one year to wait before she had an entitlement to the State pension at age 66.

Before concluding this section, I wish to state that, while I heard in evidence that, in 2005, the complainant challenged her exclusion from the superannuation scheme, in reaching my decision on this matter, I am not influenced by the outcome of her complaint and the findings of the Pensions Authority. The critical facts from a pension perspective, is that the complainant’s pension was not on a par with those of the plaintiffs in the case law cited, and she was not entitled to the State pension when she retired.

Conclusion

I have found that there was no legal or contractual impediment to the complainant remaining at work after the age of 65 and, that to do so is in line with government and social policy regarding longer working lives. It is my view that the outcome achieved by the complainant’s retirement was not so significant that it was reasonable or necessary. I note the final remarks of Mr Justice McKechnie in the Donnellan case, where he stated,

“Any discrimination with regards to age must, as put by that Directive (2000/78/EC) serve a legitimate aim or purpose, and the means taken to achieve that purpose must be appropriate and go no further than is necessary, i.e. they should be proportionate.”

Based on this premise, I find that the decision to insist on the complainant’s retirement at age 65 was disproportionate to the outcome that it achieved.

I am not satisfied that the respondent has shown that there is a connection between the complainant’s retirement at age 65 and the broadcaster’s objective to encourage intergenerational fairness. It must be the case that the closure in 2017 of the young people’s programmes department had the effect of cutting off the supply of young programme-makers coming up through the organisation. While I have no issue with the employment of people in their 70s, the retention of older presenters based on their “on air” appeal fails to open attractive jobs for younger employees and must contribute to the career stagnation that the respondent’s witnesses said closes off promotion for young people.

I am mindful of this finding, in the context of the precariousness of the respondent’s funding and the need to find radical ways to reduce costs. I remain of the view however, that what was achieved by her enforced retirement could have been achieved by another means and a way could have been found, with her co-operation and the creative input of management, to permit her to remain at work and to add value for 18 months.

I have concluded that, as a result of her compulsory retirement on July 9th 2018 at age 65, the complainant was discriminated against on the ground of her age. I decide therefore that, in accordance with section 79 of the Employment Equality Act, this complaint is well founded, and I direct the respondent to pay the complainant compensation of €100,000, equivalent to one year’s salary.  

Retirement at age 65, discrimination on the ground of age