Complainant

Respondent

Anonymised Parties

A Gatekeeper

A Rail Company

Representatives

Gilvarry & Associates Solicitors

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-00021301-001

23/08/2018

The complainant had other complaints heard on 27th February 2018 by an adjudicator. This adjudicator subsequently left the WRC and no decision was issued. The complaints were allocated to a different adjudicator for a new hearing on 13th November 2018 in addition to these said complainants but at the request of the complainant’s representative the adjudicator agreed to recuse himself. A new hearing with a different adjudicator took place on 18th January 2019.   The complainant submits that she was discriminated against on the basis of her age when her employment was terminated and that she was victimised by terminating her employment when she opposed the discrimination. This decision may be read in conjunction with ADJ-00009265. I have taken the decision to anonymise this decision.

The complainant commenced employment on 13th September 1984 as a gatekeeper and was issued a contract of employment that provided for a retirement age of 70.

In 2000 the complainant entered the respondent’s pension scheme and paid arrears of pension contributions back to 1995. A new pay deal was negotiated in 2003 between the respondent and the employees and the complainant was on the national negotiating committee but was not aware of any changes in age of retirement that would apply to her. There was no change to her retirement age either mentioned or agreed either in 2000 or 2003. The complainant detailed that the HR Manager at the time Mr A advised her that her retirement age would remain 70 and not 65 (later changed to 66), albeit her pension contributions would cease at 66.

Over the years, changes in technology has resulted in an increase of automation of railway gates and the complainant has been providing relief services to the respondent.   In 2016 she was advised that the retirement age was 66 and that she advised the respondent that this was unacceptable as her contract said 70. Around 14th April 2017 the complainant was offered voluntary severance as she was advised that there was an excess of gatekeepers and that the offer was a once-off offer. The complainant accepted the offer of a voluntary severance package but when she confirmed acceptance on 5th May she was told that she was too late and would have to wait for the next scheme and no scheme has been offered since then. She was compulsorily dismissed on 5th February 2018 with effect from 24th February 2018.

It was put forward that the respondent cannot prove that there was a contractually fixed retirement age of 66 because the retirement age is 70 in the contract and the respondent could not unilaterally alter her contractual terms. Case law cited included EDA 1710 Glavey v Connaught Airport, Valerie Cox v RTE, Mitchell v Southern Health Board [2001 ELR 201, Coillte Teoranta & O’Dwyer [EDA 064]. Without prejudice to the above it was detailed that there was no objective justification for a retirement age of 66 as several workers have been allowed to work past 66.

It was also put forward that but for protesting at the illegal discrimination owing to her age and threatening the respondent to proceed with a complaint under the equality legislation, her employment would not have been terminated. The complainant detailed that this amounts to prima facia evidence of penalisation/victimisation under the Acts.

Evidence of Mr B –

Mr A who had also worked as a gate keeper gave evidence that he also did not know that his retirement age had changed from 70 to 66. It was also his evidence that he had confirmed his acceptance of a severance package but the offer was rescinded. Mr A confirmed that he is pursuing his complaints through the WRC.

The respondent detailed that the complainant was part of the national negotiating committee who reached an agreement which provided for an option for gate keepers to join the respondent’s pension scheme. The complainant received an information booklet referring to the scheme which details that normal retirement age was 65. This retirement age was later increased to 66. The agreement reached in 2004 was given statutory effect and the terms and conditions of gate keepers including the complainant were thereby amended to reflect the terms of the agreement. It was outlined that the complainant cannot on one hand accept the benefits of the pension scheme and at the same time assert that she is not bound by the conditions attached to them, such as the retirement age.

It was denied that any gate keeper, who was a member of the pension scheme, remained working after the age of 66. Only those who were not a member of the pension scheme may have been permitted to stay on until the age of 70 subject to a medical. In 2011, 2013 and 2015 the complainant would have been supplied estimates for voluntary severance predicated on a retirement age of 65.

It was also denied that the complainant had been victimised by her retirement as she was well aware of her retirement age when she signed up for the terms of the pension scheme, which was prior to any suggestion that she would pursue a claim of discrimination. Evidence was provided of the agreement reached on Friday 20th June 2003 and which detailed under Section 5 “resident level crossing keepers are eligible to join existing (XYZ) Wages Grade pension scheme subject to the rules of the scheme”. Also, Section 5(d) under retirement age it detailed that “crossing keepers will be required to retire from the Boards’ service no later than age 65”. This is also set out in SI 93/2016

It was put forward that the respondent satisfied the requirement for proportionality as it does not apply the requirement of a retirement age of 66 to all employees without distinction. The respondent detailed that they have ensured that the measure is the minimum requirement to achieve the legitimate objective of the employer.

Case law cited included Hospira v Ropert EDA 1315, Seldon v Clarkson Wrights and Jakes [2012] UKSC, McLoughlin v Great Southern Railway [1944] .

Section 6(1) of the Employment Equality Acts 1998 and 2004 (the Act) provides, -

‘‘(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’)which—(i) exists,(ii) existed but no longer exists,(iii) may exist in the future, or(iv) is imputed to the person concerned,

Section 34(4) of the Act provides for certain savings and exceptions relating to the family, age and disability grounds. Subsection (4) of that Section provides: -

(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.

The Act gave effect in domestic law to Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (the Directive).

Recital 14 provides: -

“This Directive shall be without prejudice to national provisions laying down retirement ages.”

Recital 25 provides: -

The prohibition of age discrimination is an essential part of meeting the aims set out in the Employment Guidelines and encouraging diversity in the workforce. However, differences in treatment in connection with age may be justified under certain circumstances and therefore require specific provisions which may vary in accordance with the situation in Member States. It is therefore essential to distinguish between differences in treatment which are justified, in particular by legitimate employment policy, labour market and vocational training objectives, and discrimination which must be prohibited.

Section 74 of the Employment Equality Acts sets out the definition of Victimisation as follows

(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to —

( a ) a complaint of discrimination made by the employee to the employer,

( b ) any proceedings by a complainant,

( c ) an employee having represented or otherwise supported a complainant,

( d ) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

( e ) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000or any such repealed enactment,

( f ) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

( g ) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

Section 85A (1) of the Act states: “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.”   This means that the Complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the Respondent. In Determination EDA082 McCarthy v Cork City Council the Labour Court pointed out that at the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the facts proved. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.

In Melbury Developments v Arturs Valpeters the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

The complainant commenced work in 1984 and her employment ceased in February 2018. It did not appear to be in dispute that when she commenced employment her retirement age had been set at aged 70. In 2000 she joined a company funded pension scheme and in 2003 a new pay deal was negotiated which included a Pension Scheme which the respondent details set out a retirement age of 66 year. The complainant detailed that she was not aware of that provision within. I note that documentation which references the terms of the scheme includes:

The Final Proposals document whereby it sets out, under Section 5, Sick pay & Pension that “resident level crossing keepers are eligible to join existing (XYZ) Scheme subject to the rules of the scheme and in particular subject to statutory instrument SI no 93 of 2001. Secondly, under the Summary of main (sic) Provisions it details that “normal age of retirement is 65 years”. Thirdly, an amendment was later made under S.I. No 63 of 2016 which increased the normal age of retirement “for the purposes of this scheme, the normal age of retirement shall be 66 years”.

The complainant confirmed receipt of the first two documents but details that she was advised by the then HR Manager that the retirement age of 65 (later 66) would not apply to her. The complainant also expressed upset that the normal retirement party had not been arranged for the her and the respondent could offer no explanation as to why this has not happened todate. It is noteworthy that the complainant was part of the national negotiation team when the gatekeepers became members of the pension scheme, but the complainant detailed that this change in age of retirement was not brought to her attention.

In Earagail Eisc Teoranta v Richard LettEDA1513 the Court held that as a matter of general principle, a termination of employment by way of retirement should be distinguished from a dismissal on grounds of age. A retirement occurs where the employment comes to an end pursuant to a condition of employment which limits an employee’s tenure to the point at which they attain a specified age. It held that a term of employment regarding a retirement 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.

Having reviewed all the evidence including the documentation that the complainant should have been aware of and her involvement in the national negotiation committee, I am satisfied that the complainant voluntarily joined the pension scheme and should been aware that signing up to such a scheme included signing up to the terms and conditions attached which included a change in the retirement age from 65 at the time later amended to 66.   In the circumstances, I find that the complainant has failed to establish a prima facie case of discrimination on the age ground and I dismiss the complaint.

Looking at the second part of her complaint, namely that the complainant detailed that she was victimised as she advised the respondent that she would be pursuing what she saw as illegal discrimination and that her employment was subsequently terminated; the Labour Court set out in Department of Defence v Barrett (EDA 1017), the following in respect of victimisation:

“Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution. Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such “measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment”

The Labour Court in the above case highlighted the test for Victimisation as follows:

1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

2. The Complainant was subjected to adverse treatment by the Respondent, and,

3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.”

The complainant at the hearing outlined that she made the respondent aware she was unhappy with what the complainant regarded as a discriminatory retirement age and would be pursuing this further. The respondent did not dispute that the complainant had protested over the retirement age. I am satisfied that the complainant satisfies the first step of the test, namely had taken an action referred to in at s 74(2). The complainant details that the respondent terminated her employment. Based on all the evidence I am satisfied that the complainant was aware of the retirement date and therefore she was not subjected to adverse treatment by the respondent. I, therefore, do not find any evidence of adverse treatment in relation to her protected Act.

The complaint is, therefore, not well founded and I dismiss the complaint.

For completeness I find that the complainant has failed to establish a prima facie case of discrimination or victimisation on the age ground and the complaints are therefore not well founded and I dismiss the complaints.

I find that the complainant has failed to establish a prima facie case of discrimination or victimisation on the age ground and the complaints are therefore not well founded and I dismiss the complaints.

Victimisation, age, retirement, dismissal