Complainant

Respondent

Anonymised Parties

A Civil Servant

A Government Department

Representatives

Cliona Kimber SC and Kiwara Ennis BL instructed by respondent Solicitor

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-00018067-001

21/03/2018

The complainant detailed that his retirement age of 65, was no longer objectively justified by the legitimate aim of the Government as Government policy had changed, and therefore he was discriminated against on the age grounds.

In his second complaint, the complainant detailed that he was discriminated against on the age grounds by granting him a fixed term contract of one year, when ‘new entrants’ received a contract of indefinite duration.

I have taken the decision to anonymise this decision.

During this hearing, the submissions were substantial with copious volume of documentation and oral evidence heard over 2 days and, whilst I will not be referring to every event or reference every case law presented, I have taken into account all the submissions including oral and written made to me in the course of my investigation as well as the evidence presented at the hearing.

First Complaint

The complainant was engaged as a civil servant and in the first of his complaints, he submits that he was discriminated against on the age grounds.

The complainant sets out that he commenced employment on 2nd June 1980 and at the time, it was his expectation and as provided for under the Civil Service Regulations Act 1956 that his retirement date would be 31 May 2018; as he turned 65 on 1st June 2018.  However, the complainant detailed that this expectation changed as Government policy changed on 5th December 2017, and as he was recruited before 1st April 2004, his retirement age should be 70 years; in line with this December 5th government policy. The legislation which provided for this, however, was not enacted until 26th December 2018.

The complainant sets out that EU law has primacy over Irish law and that the respondent was in breach of Article 6(1) Directive 2000/78 which sets out “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.The complainant submits that a retirement age of 65 years for him, was not objectively and reasonably justified by a legitimate aim, as the retirement age of 65 was no longer government policy such that he was discriminated against on the basis of his age.

The complainant sets out he was not challenging the retirement age that applied to him up to 5th December 2017 and acknowledged the right of the state to set a retirement age in pursuit of its legitimate aims in the public interest. However, the complainant submitted, that as the Government changed their policy on 5th December 2017, the retirement age should also have changed on that date, such that a retirement age of 70 years should then have applied to him. As this did not happen, the stipulated age of 65 was no longer compliant with Article (6)1) Directive 2000/78 as “within the context of national law” it was not “objectively and reasonably justified by a legitimate aim” and therefore should be considered discriminatory.

The complainant set out that the legislative delay was avoidable, not justified or necessary as it was detailed that the government could have inserted a statutory instrument into the civil service regulations act 1956 to allow for an increase in the retirement age by way of Ministerial order. Such a statutory instrument would have avoided any delay between the government announcement and its enactment. The government had been reviewing the retirement age of civil servants for a number of years.

Second Complaint

The complainant submitted that the use of a one year fixed term contract as per Circular 21/2017 which the complainant availed of, should in fact have been a fixed term contract up to the age of 70. As the fixed term contract issued was the same as if he was employed as a “new entrant”, the same terms and conditions as a “new entrant” should have been provided to him; namely his contract should have continued indefinitely in line with other new entrants. The complainant set out there was no justification for just providing the complainant with a one year contract as there is work available for him for a longer period of time.   The complainant therefore submitted that it was neither appropriate or necessary and discriminatory. The complainant also detailed that the government failed in their duty to be prepared as they had not taken the necessary steps to amend the legislation.

Case law cited during the hearing, included Hartlaner C169/07, Petersen C-341/08, C‑268/06, C-378/17, Hennigs and Mai C-298-10, Unland v. Land Berlin [C-20/13], Parris v. Trinity College Dublin [C-443/15].

The respondent refuted the complainant’s complaints.

First Complaint

It was detailed that a legitimate aim cannot be rendered redundant immediately on the announcement of a change of government policy and that the measures used in this instance of enacting legislation was proportionate and to have included employees who had already retired as of that date, such as the complainant, would have been disproportionate and excessively complex. The respondent detailed there is a necessary and unavoidable implementation period between making policy change and bringing that policy into legal effect which is an essential element of the democratic process.

The respondent details it is misconceived to suggest that legislation becomes redundant or illegitimate if a government wishes to change their policy as to bring about such changes to effect a change in policy requires a change in the law. As the bill must be drafted and passed by the Dáil and the Seanad and before a Bill can be enacted it must go through several distinct stages in each house before the policy of the legislature is to be determined. It is only when both houses have passed a bill that it is signed into law by the President of Ireland.   Legislation applies until it is amended or repealed and legislation reflects the policy of the legislature not the executive.

The respondent highlighted that there is always going to be an intervening period between deciding policy change and implementing that change into law. In the case of the enactment of the 2018 Act, there was a 12 month period between announcement and enactment which was a reasonable and proportionate length of time. Such an intervening period also applied at EU level when a change in policy provided for in a directive does not in and of itself render the existing law immediately unlawful.

It is a legitimate aim to allow civil service and public service employees to plan for an upcoming change in retirement age. Such a change has a consequently increase in the numbers of the workforce. Appointment of civil servants is undertaken by the Commission for Public Service Appointment and that process can take up to 6 months. To impose changes with immediate effect would create uncertainty and prevent the employer from being able to engage in effective and meaningful workforce planning. In this instant case there were 180,000 employees employed prior to 01 April 2004 who would be impacted by changes. It was detailed that a transitional period is objectively justifiable by a legitimate aim and is proportionate and necessary.

It was rejected that the Minister had the power to make immediate changes to the retirement age consequent on the 2018 Act. Any such Statutory Instrument to bring about change would require the Minister to have regard to a number of factors including the effect of the order on recruitment, promotion, pensionable age applicable at the time of the order, evidence of an increase in normal life expectancy, costs to the exchequer and an investigative process would need to be embarked upon.

The respondent detailed that there is legal justification for transition periods and that member states are permitted to adapt to changing employment circumstances; anda member state is permitted discretion when seeking to bring about a legitimate aim in the public interest which validates transitional arrangements in place for a limited period of time. The respondent also made reference to the SI No 600/2017 Industrial Relations Act 1990 (Code of Practice on Longer Working (Declaration) Order 2017 which sets out examples of a legitimate aim and that the legitimate aims of intergenerational fairness and succession planning are properly and lawfully relied on in this case and are proportionate.

It was not possible for the 2018 Act to have retrospective affect and some of the difficulties with same would include at what point in time should the new law be given retrospective effect and that should it have applied to the date of the alleged change of policy, namely 5th December 2017, then it would not benefit those who were required to retire on 4th December 2017. This would have added excessive complexity.

Second complaint

The respondent refuted, the complainant’s secondary complaint, that the complainant should have received a contract up to the age of 70 years. It was submitted that the complainant has failed to reference a suitable comparator with a different age who received more favourable treatment. The respondent also detailed how the complainant had signed his understanding and acceptance of the terms of the contract and therefore, he was not entitled to any further rights and that it was a legitimate and proportionate response of the respondent offer him this contract.   It was detailed that it was reasonable to offer the complainant a fixed term contract following retirement and offering a fixed term contract up to the age of 66 tied in with the age of the state pension. The respondent put forward also that someone retiring is not the same as new entrants as they differ in that they are retiring, they have a pension, they have been offered a fixed a fixed term contract for reasons including as a good will gesture.

Case law cited during the hearing included:

Minister for Justice , Equality and Law Reform and the Commission of An Garda Siochána v The Workplace Relations Commission [2017] IESC 43, C-378/17, Palacios de la Villa v Cortefiel Servicios SA C-411/05 2007] ECR 18531, Hennigs and Mai C-298-10 Unland v Land Berlin C-20/13 and Thomas Specht v Land Berlin C-501/12, Parris v Trinity College Dublin C-443/15 , Mangold v. Helm C-144/04 [2005] ECR I-09981, Bilka-Kaufhaus GmbH v. Karin Weber von Hartz (C-170/84) [1986] ECR 1607, R v Secretary of State for Employment ex parte Seymour Smith (Case C-167/97 [1999] ECR I-623. Nikloudi v Organismos Tilepikinonion Ellados AE Case C-196/02, Petersen v. Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe C–341/08, [2010] IRLR 254, Rosenbladt v. OellerkingGebäudereinigungsge GmbH Case C–45/09, [2011], IRLR 51, Georgiev v Tehnicheski Universitet Sofia C–250/09 and C–268/09, [2010] All ER (D) 25 (Dec), Seldon v Clarkson Wright & Jakes [2012] I.R.L.R. 591, Doyle v ESB International DEC–E2012–086, EDA1710 Connaught Airport Development Limited v John Glavey

The complainant sets out that a decision to retire him was not objectively and reasonably justified by any legitimate aim such that he was discriminated against on the age grounds. The complainant accepted the right of the respondent to apply a retirement age but that once government policy changed, Section 8(1) of the Civil Service Regulation 1956 was in effect redundant and or that it should have been amended at the same time that government policy changed.

His second complaint is that the decision to provide him with a one year fixed term contract was discriminatory on the age grounds. The respondent denies both claims.

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

·         ‘‘(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—

o    (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.

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, 25 and Articles 6 (1) of the Directive are of particular relevance to the instant case.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.

Article 6 (1) of the Directive provides: -

·         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.

First Complaint:

The first of the complainant’s complaints is that as government policy changed, the respondent was not objectively and reasonably justified by a legitimate aim to apply a retirement age of 65 to him.

The complainant does not dispute, as per Section 34(4), the Respondent’s right to fix a retirement age without contravening the prohibition of discrimination on grounds of age which was reinforced by the Labour Court in EDA1710 (Connaught Airport Development Limited v John Glavey).

In Earagail Eisc Teoranta v Richard Lett EDA1513 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, or it can be provided by incorporation where some other document or instrument, of which the employee had notice, can be read in conjunction with the formal contract of employment. The complainant in the instant case did not dispute that he had a contractual retirement age upon hire of 65 years but the age of 65 was redundant. In EDA1710 the Labour Court accepted 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 Section 34(4) of the Act. This, however, 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”. Hedigan J in McCarthy v HSE [2010] 21 ELR 165 also set out in the case of a public servant who sought to challenge a decision of the HSE to retire at age 65 and “considers the dicta of Maguire P. in O'Reilly that anyone concerned “should have known of it or could easily have become aware of it (the retirement age)”.

The respondent in the instant case submitted the stages that legislation must go through before it is enacted. In the complainant’s complaint form he sets out “I had hoped that that the proposed Government’s Public Service Superannuation (Miscellaneous Provisions) (Amendment) Bill, would be enacted before my retirement date, this will not happen.”. The complainant outlined his anxiety and anticipation during this time which included his attendance at some of the debates in the Dáil to keep up to date with the status of the Bill. He detailed also his hope that the legislation would be enacted in time prior to his retirement and his disappointment that this did not happen before he retired. By his own evidence, his hope and anticipation of a potential change in his retirement age, does not reflect that he had an actual “broad awareness” that the retirement age had actually changed until it was enacted on 26 December 2018, as the Public Service Superannuation (Age of Retirement) Act 2018, or that 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.

Furthermore, the change in the retirement age was a complex process which impacted approximately 180,000 employees across the country as well as large civil service employers and I do not find any evidence that the enactment of same was unduly delayed. ]

In the supreme court Judicial Review case of Aer Lingus Teo v The Labour Court (1990 WJSC-SC 1) the complainants had been employed by Aer Lingus as hostesses prior to August 1970. In accordance with the usual terms of employment in the Public Service their contracts contained a condition that they must retire upon marriage. This Public Service marriage bar was abolished in1973. The supreme court set out that “The compulsory retirement of the applicants was a discriminatory act relating to marital status but it was not illegal” and that the Act “does not have retrospective effect”. Further on the Supreme Court details “in view of the non-retrospective character of the Act in effect the slate is wiped clean in respect of matters occurring before the Act”.

A complaint is misconceived if it can have no prospect of success as set out Flanagan v Kelly (No 1997 No 3832P High Court). The retirement age which the complaint seeks to rely on was not enacted by legislation at the time of his retirement and it does not have retrospective effect.   I find therefore his complaint is misconceived.

Second Complaint:

The second of the complainant’s complaint is that offering a one year fixed term contract to the complainant was discriminatory on the basis of his age.   The complainant details that he was given a one-year fixed term contract, as per circular 21/2017, and was considered the same as a new entrant as he was placed at the first point of the scale, and therefore should be entitled to a contract of indefinite duration, similar to other new entrants. It was also detailed in his submission that the use of a fixed term contract was not “objectively and reasonably justified by a legitimate aim” of the employer, and the “means of achieving that aim” are not “appropriate and necessary”. The respondent submits that retirement ages are permitted if objectively justified and that fixed term contracts are permitted if objectively justified and that is what occurred in this instant case. I note that the purpose of offering fixed term contracts was to afford employees who were required to retire at 65 the opportunity to continue working until they qualified for the contributory state pension at 66 which impacted a group of employees. The opportunity to take up this fixed term contract was made available to more than whom the policy was aimed at and that employees who availed of this such as the complainant accepted what this meant when the complainant signed an undertaking on the “basis that their actions compiled with Section 6(3)(C) of the 1998 Act”.

Of significant is that the complainant signed the terms of this fixed term contract which detailed : “I accept the terms and conditions of retention as set out in this Circular. In particular I understand that retention under this Circular does not confer any rights on me to any new arrangement that may be provided for In future legislation in relation to compulsory retirement age, whether or not I am still retained under the terms of this Circular on the date of commencement of that legislation. I understand that retention is for a maximum of one year from the date of my 65th birthday until I reach the age of 66 (the current age of eligibility for the CSP). I also understand that retention under the terms of this Circular is at the minimum point of the relevant pay scale and that pension abatement rules will apply.”

I find that the complainant was aware of what he was signing when he accepted the fixed term contract and has not established a prima facia case of discrimination on the age grounds.

For the first complaint, I find that the complaint is misconceived therefore is not well founded and I dismiss the complaint.

For the second complaint, I find that the complainant has failed to establish a prima facia case of discrimination on the age grounds therefore it is not well founded and I dismiss the complaint.

Equality, fixed term contract, retirement