EDA1916

Background

The Complainant was employed by the Respondent as a Clerical Officer from 27^thAugust 2001. Her employment ceased by virtue of her reaching her 65^thBirthday in June 2017. The Complainant alleges that this was a discriminatory dismissal based on her age. The Complainant had a contractual retirement age of 65 arising from the Qualifications and Particulars of Office for the Office of Clerical Officer which she accepted when she commenced her employment with the Respondent.

Complainant’s Case

The Complainant submits that the decision to retire her from work at age 65 against her will amounts to discrimination on the age ground contrary to section 8 of the Act. She submits that she was in good health and was capable of discharging her duties. She further submits that having indicated her desire to remain at work beyond age 65 it was incumbent on her employer to take steps to determine whether she was capable of undertaking the work for which she was employed. She submits that it failed to undertake any enquires of this nature and instead proceeded to dismiss her from her employment simply because she had reached 65 years of age. The Complainant drew the Courts attention to numerous emails starting on the 3^rdNovember 2017 seven months before she was due to retire that she had sent to the Respondent seeking to extend her retirement date by twelve months. Apart from a holding response in April 2017 the Complainant did not receive any response to her request until two days before she was due to retire when she was advised that her request was being refused. The basis for not accommodating her request was that she was retiring in accordance with the Particulars of Office that she accepted when she took the job. The Complainant’s legal representative raised with the respondent the fact that retirement of age for the Complainant’s category of staff had changed for employees who commenced employment after the Complainant. However, it was the Respondent’s position that that had no affect on the Complainant’s retirement date.

It is the Complainant’s case that she notified the Respondent in good time of her desire to remain at work beyond age 65. She submits that despite those notifications the Respondent did not take any steps to engage with her to extend her employment but instead dismissed her simply because she had reached 65 years and without regard to her capacity to continue at work.

It is the Complainant’s submission to the Court that the actions of the Respondent amounted to discrimination on the age ground as it made no attempt to determine whether the decision in her case was objectively justified.

Respondent’s Case

The Respondent denies that it discriminated against the complainant on the age or any other ground. It submits that it is part of the particulars of Office for Clerical Officers who started work at the time the Complainant started that they would retire at age 65. The Respondent submitted that it has in place a pension scheme that provides income in retirement for staff on reaching the retirement age. It is their submission that the Complainant was fully aware that there was a mandatory retirement age of 65 for her category of staff and any changes to the pension arrangements for staff that commenced work at a different time did not apply to her. The Respondent does not deny that her application to extend her retirement age was never formally responded to. It is their submission that her application fell through the cracks.

It further submits that to grant the Complainant her extension would negatively impact on the Respondent’s Workforce Planning and Financial Management. However, they were not in a position to explain how that negative impact on the Workforce Planning would manifest itself other than to confirm that they had replaced the Complainant. It was their submission to the Court that in terms of Financial management that the replacement member of staff was on the start of the incremental scale and the respondent was on the top of the scale so there was a saving of in and around €10,000 for the Council.

It is their case that the decision to fix a retirement age for this class of worker is consistent with Section 34(4) of the Act and that it is otherwise necessary reasonable and proportionate in that it facilitates the efficient planning of the departure and recruitment of staff.

The Law

Section 6 of the Act states

Discrimination for the purposes of this Act.

• 6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

  (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

  (f) that they are of different ages, but subject tosubsection (3)(in this Act referred to as “the age ground”),

• 8.—(1) In relation to—

  (a) access to employment,

  (b) conditions of employment,

  (c) training or experience for or in relation to employment,

  (d) promotion or re-grading, or

  (e) classification of posts,

  an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

Article 6

• Justification of differences of treatment on grounds of age

  1. Notwithstanding Article 2(2), 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.

  Such differences of treatment may include, among others:

  (a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;

  (b) the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment;

  (c) the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.

  2. Notwithstanding Article 2(2), Member States may provide that the fixing for occupational social security schemes of ages for admission or entitlement to retirement or invalidity benefits, including the fixing under those schemes of different ages for employees or groups or categories of employees, and the use, in the context of such schemes, of age criteria in actuarial calculations, does not constitute discrimination on the grounds of age, provided this does not result in discrimination on the grounds of sex.

Section 34 of the Act states

• 34 (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 Court finds that the Respondent has not set out grounds that objectively justify the selection of that age for this category of staff. While the Respondent relies on the Workforce Plan and Financial Management any issues arising in relation to both of those would have to apply equally to employees who now have a right to work beyond 65 based on the date they commenced employment. In those circumstances the Court finds that the objective reasons identified by the Respondent are not justified by a legitimate aim and therefore the Respondent has not complied with Section 34(4) of the Act and the Complainants claim must succeed.

Determination

The Court determines that the Complainant, was discriminated against on the age grounds due to her dismissal from her employment at age 65. The Court having considered all aspects of this case and the remedies open to it has decided to award compensation of €20,000 to the Complainant.
The Decision of the Adjudication Officer is varied accordingly.

The Court so determines.

Signed on behalf of the Labour Court



Louise O'Donnell
MK______________________
27 May 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.