Complainant

Respondent

Parties

Michael Fox

Tedcastles Aviation Fuels Limited

Complainant

Respondent

Anonymised Parties

Michael Fox

Tedcastles Aviation Fuels Limited

Representatives

Marie O Connor SIPTU

Sinead Mullins IBEC

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-00021344-001

27/08/2018

The Complainant commenced employment with the Respondent, an Aviation Fuel company, in the role of an Aircraft Refueler, on 14 June 2004.

The Complainant’s employment with the Respondent terminated on 13 August 2018, on the grounds that the Complainant had reached the retirement age of 65.

The Complainant claims that the termination of his employment on the above basis is a breach of Employment Equality Acts and amounts to discrimination on the grounds of age. The Complainant submitted his claim in this regard to the Workplace Relations Commission on 27 August 2018.

Background:

It was submitted on the Complainant’s behalf that he began his employment with the Respondent on 14 June 2004, when he was aged 51. It was stated that the Complainant was not provided with a written contract of employment. It was further submitted that, at the time the Complainant was recruited by the Respondent, employees would remain as temporary workers for a considerable number of years before being made permanent.

According to the submission made, the Complainant received a Statement of these Terms and Conditions of Employment in 2012, in the context of a collective agreement negotiated by his Trade Union. However, it is submitted that there is no collective Agreement in place which deals with retirement age nor is there a Company Handbook.

In addition, it was submitted that the Complainant’s Statement of Terms and Conditions of Employment is silent on the matter of retirement age. The Complainant also submits that he did not enter any agreement with the Respondent in relation to retirement age. It was further submitted that the Complainant is unaware of the existence of any document or policy created by the Respondent, which points to a specified or established retirement age.

According to the Complainant’s submission, he joined the Respondent’s Pension Scheme in 2017 and received a letter dated 1 July 2017 from the Human Resources Department, which inter alia, strongly advised the Complainant to consider starting to save towards his retirement on 13 August 2018. However, it was submitted, on the Complainant’s behalf, that, if he had not decided of his own accord to enter the Pension Scheme, then he would never have been made aware by his employer directly of a normal retirement age.

It was submitted on behalf of the Complainant that the retirement age set out in the Pension Scheme is the earliest date on which he could draw down his pension. It was further submitted that the obligation rests entirely with the Respondent to exercise caution in placing reliance on pension scheme rules and benefit statements in seeking to establish the existence of a contractual retirement age for the employment concerned.

According to the Complainant’s submission, on commencement of his employment, as a temporary worker, he was provided with two weeks on the job training. It was submitted that the Complainant was made permanent in around 2009 according to the above referenced statement of his Terms and Conditions of Employment, which he received in 2012.

In support of his complaint, the Complainant referenced three employees who he contends were still engaged with the Respondent after 65 years of age. It is further submitted that, as these comparators exist, it is not custom and practice nor an express term that the normal retirement age is 65. Consequently, the Complainant submits that the Respondent cannot objectively justify his dismissal.

According to the Complainant’s submission, he is required to work two day and two night shifts, on an 8:30 to 8:30 roster. It was stated that the Complainant was responsible for the refuelling of commercial airliners at the airport. It was further submitted that the Respondent employed four crews comprising of a “chief” and an “operator” on a permanent shift with one crew always being on duty. It was further submitted that, in addition, there would be another “operator” on duty to assist but on a 6 to 6 shift.

It was submitted that, due to a previous case of a colleague being forced to retire at 65, who later won his appeal at the WRC, the Complainant wrote to the Respondent’s Terminal Manager, on 13 November 2017, stating that he did not intend to retire on 13 August 2018. It is submitted that the Respondent replied, by letter dated 2 January 2018, outlining their position that the normal retirement age is 65 in accordance with the Company’s Occupational Pension Scheme. It was further stated that the Respondent also outlined two reasons for the normal retirement age, which was the first time that the Complainant was notified of these. It was further submitted that the Respondent’s reply did not address the fact that other employees had remained beyond 65 years of age.

According to the Complainant’s submission, at that stage, he was not aware of the normal retirement age nor had it been objectively justified. It was stated that it was only recently that the Complainant was advised of the reasons why he was being forced to leave his employment.

It was further submitted that the Complainant appealed the Respondent’s decision, of 2 January 2018, and an appeal hearing was held on 6 March 2018. According to the Complainant’s submission he was informed, by letter dated 16 March 2018, that his appeal had been rejected.

Union Argument – Age Discrimination:

In making the submission on behalf of the Complainant, his Trade Union representative made reference to Section 6 (1) of the Employment Equality Acts, 1998 – 2004.

Against the background of the above section of the Act, it was submitted, on behalf of the Complainant, that a normal retirement age has not been established in his employment. It was further submitted that there is no contractual provision in respect of a normal retirement age nor is it provided for in any associated documentation or policy. It was further submitted that the Complainant disputes the Respondent’s contention that the normal retirement age is “an implied term” of his employment contract and refers to the three comparators, already referred to, one of whom did not retire until he was 67 years of age. It was further submitted that the comparators provide clear examples that there are different and more beneficial retirement dates applicable within the Respondent’s employment.

Without prejudice to the foregoing point, the Complainant submits that there are no objective or reasonable grounds by which the Respondent might justify the termination of his employment and that this termination was in breach of the protections provided in the Equality legislation.

It was further submitted on behalf of the Complainant, that the facts, as set out above, are of such significance that they are sufficient to establish a prima facie case of discriminatory treatment and that the burden of proof, contained in Section 85 (a) of the Acts, shift to the Respondent for rebuttal.

Relevant Case Law:

In support of the Complainant’s submission, his Trade Union representative referred to the following cases:

·         John Glavey v Connacht Airport Development Ltd t/a Ireland West Airport Knock [ADE16/74]

·         Thomas O’Mahony v Southwest Doctors on Call Ltd [DEC-E2014-031]

·          Joseph Meaney v Tedcastles Aviation Fuels Limited [ADJ-1616]

·         Mary Heffernan v University Concert Hall Ltd [ADJ-6654]

·         Valerie Cox v RTE [ADJ6972]

With reference to the above cases, the Complainant’s representative referred, inter alia, to the lack of express terms as to retirement age in a Contract of Employment, no evidence of exploring a more proportionate response to age-related safety concerns and failure to provide reasonable justification for a fixed retirement age.

Conclusion:

In summary, it was submitted, on behalf of the Complainant, that he was dismissed by the Respondent, in circumstances amounting to discrimination on grounds of age, in terms of Section 6 (2) of the Employment Equality Act and contrary to Section 8 of the Acts. Consequently, the Complainant is claiming compensation in accordance with the legislation.

Background to the Respondent:

It was submitted that the Respondent manages the high-grade fuel and oil refuelling operations at Shannon Airport. It was further submitted that the Respondent employs a compliment of 18 people, made up as follows: (a) Relief Staff - who are employed on flexible contracts to ensure that there is adequate cover for variations in air traffic levels and to provide cover for leave and sick leave, (b) Permanent Refuelers – who are employed on permanent contracts of 42 hours per week and (c) Crew Chiefs - who are permanent shift supervisors but who perform the job of the refuellers as well as their supervisory duties.

Background to the Complainant and sequence to retirement:

The Respondent submitted that the Complainant commenced employment on 14 June 2004, being initially employed in a temporary or relief capacity. It was further submitted that the Complainant was made permanent in May 2009, when he was issued with a statement of terms and conditions of employment, in line with the normal entry practice of the Respondent.

According to the Respondent’s submission, the Complainant retired on 13 August 2018 in line with the established normal retirement age, which is also in line with the Respondent’s occupational pension scheme, of which the Complainant and his Trade Union were fully aware of.

It was further stated by the Respondent that just before the Complainant started work as a Relief Worker, the Union had successfully pursued a claim to allow Relief Staff access to the Company Pension Scheme. According to the Respondent, in the letter accepting Relief Staff into the Pension Scheme in February 2004, the Respondent attached a copy of the pension scheme rules.

According to the Respondent’s submission, the retirement age for staff would have been well known to the Complainant because of the significance of retirements in the Respondent company, where there is no voluntary turnover and permanent/promotion opportunities only arise as a result of retirement.

The Respondent states that, although the Complainant did not join the pension scheme after his first year of service or when he was made permanent or when he received a statement of terms and conditions of employment, he made enquiries about joining the scheme as recently as August 2011. The Respondent submits that while the Complainant was provided with a pension booklet and an application form he did not apply to join the pension scheme at that time.

According to the Respondent’s submission, after discussions with his Trade Union, in 2012, the Complainant was issued with a statement of terms and conditions which clearly references the right to join the pension scheme. It was further submitted that in October 2013, the Complainant again made contact with management seeking information on the pension scheme. The Respondent stated that, on foot of those contexts, the Complainant was written to with details of the pension scheme, including the pension rules, which clearly referenced a retirement age as opposed to a pension age. It was further submitted that the Complainant again did not apply to join the scheme at that point in time.

The Respondent submitted that the Complainant was present at a local meeting between his Trade Union and management in April 2016 where the Pension Scheme was discussed. It was submitted that at this meeting, the Trade Union representative requested the Respondent to remind staff, who had not joined the Pension Scheme, that they were entitled to join the scheme and thereby avail of the Company pension contribution.

It was submitted that the Respondent, on foot of this meeting, wrote directly to the Complainant on 1 July 2016 to remind him that he was entitled to join the pension scheme. According to the evidence presented, this correspondence stated, inter alia: “we would strongly advise you to save towards your retirement on 13 August 2018 especially considering the tax benefits that are available”. According to the Respondent, the Complainant did not reply to this correspondence, either to refute or challenge the statement of his retirement date of 13 August 2018 or to apply to join the scheme.

According to the Respondent’s submission, on 17 October 2016, the Complainant’s Trade Union representative wrote to the Respondent, on his behalf, seeking entry to the pension schemes with retrospective payment of pension contributions for the term of his employment. The Respondent further stated that in reply to this request, it was pointed out, in a letter dated 20 December 2016, that while the Complainant was entitled to join the scheme, the Respondent did not consider it had any obligation to make retrospective pension contributions, given the history of the industrial relations negotiations that have taken place with regard to access for relief workers to the pension scheme.

The Respondent submitted that, as no reply has been received to their correspondence of 20 December 2016, they wrote to the Complainant again, on 13 February 2017 inviting him into the pension scheme. It was further submitted by the Respondent that this letter concluded as follows: “we would strongly advise you to save tours your retirement on 13 August 2018, especially considering the tax benefits that are available”. The Respondent submitted that, in response to this letter, an application to join the pension scheme was received from the Complainant dated 15 March 2017, following which the Complainant was admitted to the pension scheme, with payroll deductions commencing in March 2017.

According to the Respondent’s submission, all of the pension documentation sent to the Complainant to facilitate his joining the pension scheme clearly indicates that the scheme is aligned to the company retirement age and specifies a retirement age of 65. It was further submitted that the letter inviting him to join the scheme clearly indicated that his retirement would happen in August 2018.

The Respondent submitted that on 13 November 2017, the Complainant provided a handwritten note to his manager, stating that he did not intend to retire in August 2018. The submission further states that the Respondent replied to the Complainant on 2 January 2018 acknowledging his request to work past his retirement age but refusing same on the grounds that there were no exceptional circumstances which would warrant making an exception to the retirement age which was in existence in order to protect the health and safety of Air Craft Refuelers.

The Respondent submitted that formal written notice of the Complainant’s retirement issued on 11 January 2018, with an invitation to attend a preretirement training course. It was submitted that, on 19 January 2018, the Complainant appealed the decision to refuse his request to work past retirement. According to the Respondent’s submission, the Complainant’s grounds for appeal were that he was fit enough to work and had insufficient notice of the company’s retirement age. In addition, the Complainant quoted comparators who had exceeded the retirement age and he also referenced his length of service and unblemished record.

According to the Respondent’s submission, a written appeal outcome was issued to the Complainant on 16 March 2018, advising that his appeal had been unsuccessful. It was submitted, by the Respondent, that the Complainant retired on 13 August 2018. It was further stated that he was offered a retired gathering presentation, both of which he declined.

Respondent’s Substantive submission:

Against the above background, the Respondent set out their position in reply to the Complainant’s claim, under the following headings:

1)      Prima Facie Case of Discrimination:

According to the Respondent’s submission, it has been the well-established practice of the Equality Tribunals and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited. The Respondent stated that it would argue, in the strongest possible terms, that the Complainant had failed to discharge this burden of proof because he had failed to provide objective evidence demonstrating he was treated differently and discriminated against on the basis of his age, in terms not sanctioned under the law in Ireland.

In support of the submission in this regard, the Respondent cited the following cases: Southern Health Board v Mitchell [DEE001, 2001, ELR201], Margetts v Graham Anthony & Company Limited [EDA0-38] and Melbury v Valpeters [EDA/0917]

In conclusion on this point, the Respondent submitted that, notwithstanding that the particular circumstances in each of the above referenced cases are different, it is clear that it is only when the Complainant has discharge this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the inference of the discrimination raised.

2)      Relevant Legislation:

Notwithstanding their view that the Complainant had failed to discharge the burden of proof by establishing a prima facie case of discrimination, the Respondent proceeded to make submission in relation to the claim as submitted. In this regard, the Respondent made reference to Sections 6 (1) and (2) of the Employment Equality Act, 1998 to 2016.

The Respondent also submitted that “direct discrimination” is defined as occurring when one person is treated less favourably than another is, has been or would be treated and that person is of a different age than another person. It is further submitted that direct discrimination consists of two elements: the first being the less favourable treatment of the individual making the complaint and the second being the existence of age grounds for that treatment. It was further submitted by the Respondent that both elements must be satisfied for the claim of discrimination to succeed.

In addition, the Respondent referred to the general framework for equal treatment in employment and occupation, as set out in the Council Directive 2000/78/EC. The Respondent submitted that the directive recognises the differences in treatment in connection with age may be justified by member states under certain circumstances. In particular, the Respondent refer to Article 6 (1) of the directive which provides that discriminatory treatment directly based on age is permissible subject to objective and reasonable justification, where the means of achieving these aims are appropriate and necessary.

Following on, the Respondent referred to Section 34 (4) of the Employment Equality Act, which states that the fixing of different ages for retirement shall not constitute discrimination 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 Respondent submitted that they have met these tests with regard to the Complainant in relation to his retirement. In support of this contention, the Respondent submitted that Section 34 (4) of the Acts is clear and unambiguous and, as provided for under that section, they have fixed a mandatory retirement age for all employees in the same category as the Complainant, which is objectively justified by the Respondent’s need to have age diversity in the workplace and to provide intergenerational fairness, succession planning and to protect the health and safety of air craft refuelers.

In support of their submission in this regard, the Respondent referred to the authorities provided through a number of European Court of Justice (ECJ) judgements and those of other higher courts on the matter of retirement ages as it relates to various national social policies.

In conclusion on this aspect of the submission, the Respondent stated that their compulsory retirement age of 65 years is permitted by both Section 34 (4) and Section 37 (2) of the Employment Equality Acts.

3)      Normal Retirement Age in the Respondent Company:

In response to the Complainant’s contention that there was no established normal retirement age for permanent refuelers, the Respondent accepted that there was no express contractual term providing for retirement age. However, the Respondent submitted that there is an implied and well established term that the contractual retirement age is 65.

In support of this contention, the Respondent stated that it has an occupational pension scheme in place which specifically provides for a normal retirement age of 65 years of age. It was further submitted that the Complainant was entitled to join the scheme from the start of his employment and was provided with information in that regard at intervals throughout his employment before he eventually joined the scheme in March 2017.

In addition, the Respondent submitted that the normal retirement age is 65 would have been communicated to the Complainant in all of the pension scheme documentation provided to him and into specific pieces of correspondence which were sent to him in 2016 and 2017. The Respondent further submitted that the Complainant did not refute or question the existence of the normal retirement age of 65 either when receiving the information/correspondence or prior to joining the scheme in March 2017.

According to the Respondent’s submission, apart from the alignment of the retirement age and the pension age which is well known, it is irrefutable that the retirement of staff is exceptionally important in the Respondent because of the impact it has on their employment status and earnings and is discussed widely with retirements keenly anticipated because of that positive impact on the remaining staff.

In support of their submission in this regard, the Respondent provided detailed evidence with regard to employee retirements over the last decade. This evidence demonstrated that 10 employees retired at the normal retirement age of 65 years, while another retired a few weeks short of his 65th birthday. The Respondent submitted that, as a result, it does not accept that the Complainant did not know the retirement age was 65, given that some of his colleagues had already retired at that age. The Respondent further submitted that it is not believable that the Complainant was unaware of the existence of a retirement age of 65.

The Respondent also provided a detailed response with regards to the three comparators the Complainant presented as evidence of colleagues working beyond the age of 65 with the Respondent. The evidence presented by the Respondent shows that all three comparators, two of whom are not directly comparable with the Complainant, in that they were not refuellers, retired at or before the normal retirement age of 65.  

The Respondent further submitted in this regard that while two of the comparators may have worked subsequently for the Respondent, this was in very specific situations covered either by fixed term contracts or contracts for service. The Respondent provided evidence that two of the comparators drew their pension benefits at age 65 and 64 respectively. With regard to the third comparator, the Complainant submitted that he was offered two fixed term contracts, to provide relief work as a refueller, after retiring from his position as Crewe Chief on his 65th birthday, with the result that he did not commence to draw his pension benefits until age 67. However, the Complainant submitted that this took place almost 10 years prior to the Complainant’s retirement.

According to the Respondent submission, the Complainant’s could not have had any legitimate expectation and could not have expected, by any objective standards, to work beyond his date of retirement, i.e. 65 years of age.

With regard to the matter of whether the retirement age must be contained within a written contract, the Respondent referenced the following cases: Hannah Molloy v Connacht Gold [UD891/2009], Sweeney v Aer Lingus Teoranta [DED-E2012-135] and Paul Doyle v ESB [DEC-E2012-086]. The Respondent submitted that these cases demonstrate that the respective tribunal’s accepted the custom and practice of compulsorily retiring employees, notwithstanding the absence of any written policy in this regard.

In relation to the matter of whether any exceptions made to a compulsory retirement age imperils the standing of future retirements, the Respondent submitted that this has been considered by the ECJ, whose decisions are reflected by the EAT, in the following cases: Fuchs & Another v Land Hessen [C-160/10), Georgiev v Technicheski Universitet [C-250/09] and Patrick MacPoppins v G4s Secure Solutions (Ire) Limited [UD 2200/2009].   The Respondent submitted that the conclusion arising from the aforementioned cases was that allowing some employees work past the age of 65 did not prevent later enforcement of the normal retirement age.

4)      Objective justification of the normal retirement age in the Respondent Company:

The Respondent submitted that they operate a well-established practice of compulsorily retiring employees when they reach the age of 65. In this respect, the Respondent submitted that the retirement of employees at age 65 was objectively necessary and reasonably required or justified.

In support of their contention in this regard, the Respondent referred to the following as the objectively justified grounds for applying a normal retirement age of 65:

a)       Inter-generational fairness:

The Respondent submitted that they recruit temporary staff in order to provide the flexibility required by the changing operational requirements of the business. It was further submitted that this flexibility is essential to ensure financial survival of the operation.

It was further submitted that the established retirement age also provides opportunities for younger people, with the majority of progression into relief rolls in the last 10 years having resulted from retirements.

b)      Succession Planning:

Under this heading, the Respondent submitted that there are a number of supervisory positions (Crewe Chief) that are essential to its operation and for which it would be very difficult to recruit from external sources because of the necessity to have specific aircraft refuelling experience. It was further submitted that these Crew Chief positions offer refuelers an opportunity to progress into supervisory roles and increase their earning potential, thus making it essential to have an established retirement age especially considering the fact that the only turnover of staff comes from retirements. The Respondent stated, in this regard, that there have never been voluntary resignations during the Complainant’s employment.

In further submission, the Respondent stated that relief workers are not guaranteed regular hours and often act in a relief capacity for long periods of time waiting to occupy permanent roles with guaranteed hours. The Respondent submitted that, considering the absence of other staff turnover, employee progression can only be achieved through the application of a normal retirement age.

According to the Respondent, they are required to retain a grade of relief staff who work variable hours as a consequence of volume volatility. It was further submitted that this is the recruitment route for all refuelling staff and these release staff, can only progress to guaranteed hours on the vacating of positions. According to the Respondent, the Complainant would not have been in a position to avail of such opportunities had the Respondent not operated a normal and establish retirement age.

The Respondent submitted that their actions in this regard do not breach Section 34 (4) of the Equality Acts and in support of this position, cited a number of relevant cases including: Donnellan v Minister for Justice, Equality and Law Reform [2008 IEHC 467], Felix Palacious de la Villa v Cortefiel Servicios SA [C-411/05], Rosenbladt v Oellerking Gebaudereinigungsges mbh [C-45/09] and Doyle v ESB International Ltd, [EE/2008/385].

c)       To protect the health and safety of aircraft refuellers:

The Respondent submitted that there are significant hazards to the health and safety of aircraft refuelers, namely heavy physical workloads, shift work and noisy environments, which have a greater impact on older workers, which reasonably and justifiably require retirement age of 65. It was further submitted, in this regard, that health and safety concerns are, and always have been, the primary focus of management in considering the risk to staff and members of the public arising from the work. It is further submitted that these concerns form the basis of the determination of the retirement age.

In support of their contention in this regard, the Respondent stated that they conducted an extensive review of the refueler’s role in 2016. The Respondent further stated that this review took account of research and information on the hazards and risks associated with the refuelling of aircraft. According to the Respondent’s submission, the aforementioned evidence and the nature of the duties which the refuelers and crew chiefs are required to perform a regular basis, make the operation of a retirement age of 65 objectively and reasonably justified.

According to the Respondent’s submission, the outcome of this review clearly emphasised the appropriateness of the established retirement age for refuelers. Consequently, the Respondent submitted that a position of a high physical capacity is a genuine and determining occupational requirement for the role within the meaning of Section 37 (2) of the Acts.

d)      Dignity in the Workplace:

The final factor referred to by the Respondent under this heading, is that of Dignity in the Workplace. It was submitted that this is necessary for the protection of the dignity of employees against future performance management and the avoidance of difficulty and stressful HR processes.

In this regard, the Respondent referred to the, already referenced, ECJ case of Rosenbladt v Oellerking Gebaudereinigungsges mbh [C-45/09], were the Court also found that the automatic termination of employment contract also has the advantage of not requiring employers to dismiss employees of the ground that they are no longer capable of working, which may be humiliating for those who have reached an advanced age.

Conclusion:

In conclusion, the Respondent submitted that the burden of proof rests with the Complainant to show that he was discriminated against on the grounds of age. In this regard, the Respondent reiterated that the Complainant had failed to discharge this burden of proof by failing to provide objective evidence demonstrating that he was treated differently and discriminated against on the basis of his age.

However, without prejudice to their   aforementioned view, the Respondent submitted that the Complainant was retired in line with its normal retirement age, which was lawful within the provisions of the Acts. The Respondent further submitted that the compulsory retirement age of 65 as applied within the Respondent organisation, is permitted by both Section 34 (4) and 37 (2) of the said Acts.

The Respondent further submitted that they demonstrated, by way of the 2016 Review of the Refueler role, that, owing to the particular occupational activity the Complainant was engaged in carrying a high physical capacity, it is a genuine and determining occupational requirement for the role. It was further submitted that the necessity for intergenerational fairness and succession planning is clearly established by the need for retirement to allow relief staff to progress into permanent terms and conditions.

In the light of the foregoing, the Respondent submitted that the termination of the Complainant’s employment by means of retirement at age 65 does not constitute a breach of the Act and, therefore, his claim in this regard should fail.

Section 85 A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a claimant 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 is required to establish, in the first instance, primary facts upon which the claim of discrimination is grounded and from which it may be presumed that there has been discrimination. If he succeeds in doing so, then, and only then, the burden of proof passes to the Respondent to prove the contrary.

Based on the above, when evaluating the evidence in this case, I must first consider whether the complainant has established a prima facie case pursuant to Section 85 (a) (1) of the Employment Equality Acts 1998 to 2008.

The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. The inference of discrimination must have a factual/credible basis and cannot be based on mere speculation or assertions which are unsupported by evidence.

The Labour Court elaborated on the interpretation of section 85 (a) (1) in Melbury v. Valpeters (EDA/ 0917) where it stated that this section: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".

Having carefully considered all of the evidence adduced, I find that the Complainant has sufficiently established a prima facie case that an act of discrimination took place in relation to the termination of his employment with the Respondent by means of compulsory retirement at 65. Therefore, the burden of proof switches to the Respondent to refute the Complainant’s complaint in this regard.

The Respondent’s rebuttal of the Complainant’s claim of discrimination on the age ground rests on two specific premises. Firstly, the Respondent contends that a “normal retirement age” of 65 had been established and applied to the Complainant. Secondly, the Respondent contends that the established retirement age of 65 is based on clear, objective grounds, which meet the requirements of Section 34 (4) of the Employment Equality.

With regard to the first premise, i.e. that they had established a normal retirement age of 65, the Respondent refuted the Complainant’s contention that he was unaware that such a requirement existed. Having carefully reviewed all of the evidence adduced, I am satisfied that there is no explicit contractual arrangement between the Respondent and the Complainant with regard to an established retirement date.

While the Respondent accepts that no explicit contractual arrangement exists, they contend that there is an implied retirement age of 65 and that this is a well-established term. In support of their position in this regard, the Respondent places significant reliance on the fact that the occupational pension scheme provides for a retirement age of 65 years.  

The evidence shows that the Complainant was, on a number of occasions, provided with Explanatory Booklets and Investment Guides in relation to the pension scheme. These documents, some of which ran to almost 30 pages, contained a myriad of information in relation to all aspects of the pension scheme. Given the technical nature of some of this information, I consider it to be unreasonable of the Respondent to suggest that the Complainant should have gleaned from these documents that a mandatory retirement age of 65 was in existence and that this would require him to retire on his 65th birthday, i.e. 13 August 2018.

Having reviewed the documentation in question I note, inter alia, the following references to retirement date:

·         “When can I retire? In normal circumstances you will retire on your 65th birthday. This is your “normal retirement date”

·         “With the Company’s consent, you may also be allowed to defer your retirement beyond your Normal Retirement Date”.

·         “Normal Retirement Date means your 65th birthday or such other date as the Company may specify and notify to you.”

In the light of the information set out above and the circumstances/context in which it was provided to the Complainant, I find it unreasonable that the Respondent will contend that the complainant was, as a result, fully informed of the existence of an established mandatory retirement date and that this specifically applied to him.

In addition, I note that there were a number of opportunities, arising out of negotiations between the Respondent and the recognised Trade Union on behalf of the employees and the issuing of revised statements of terms and conditions in 2012, when the Respondent could have formally included the provision in relation to normal retirement date, however, this was not done.

In the case of Earagail Eisc Teoranta v Richard Lett [EDA 1513],   the Labour Court expressed the following view: ”as a matter of general principle, the termination of employment the 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 specific age”.

In my view, the above view from the Court, clearly distinguishes between an established retirement date, be that expressly stated or by implication, and another date on which an employer may move to terminate the contract of employment of an employee.

Having carefully reviewed all of the evidence adduced and in a context where no express term existed in the Complainant’s contract of employment requiring him to retire at an appropriately established retirement date, I can only conclude that the Complainant had no clear, actual knowledge as to the existence of such a date.

Section 34 (4) of the Employment Equality Acts , 1998 – 2016, states as follows:

(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.”

In the Earagail Eisc Teoranta case, the Court found that: “an employer’s employment policy in relation to retirement can take effect as a contractual condition of employment which is, prima facie, protected by s. 34 (4) of the Act. However, in the Court’s view that could only arise where the policy is promulgated in such a manner that the employees to whom it applies either knew, or ought to have known, of its existence.”

Based on the above, I am satisfied that the Respondent, in the within case, cannot, in the circumstances that pertain, avail of the protections of Section 34 (4) of the Act.

Consequently, taking all of the above into consideration, I am satisfied that the Complainant was dismissed because of his age and that his claim of discrimination on the grounds of age is well-founded.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find the Complainant’s complaint is well-founded and I make an award of €5,000 in his favour for the Respondent’s breach of Section 8 (1) of the Employment Equality Act, 1998 2015.

The above award represents compensation for infringement of the Complainant’s rights under equality legislation in relation to discrimination on the ground of age. It does not include any element relating to remuneration .

Employment Equality Acts

Age Discrimination

Mandatory Retirement Age