Complainant

Respondent

Anonymised Parties

A General Operative

A Manufacturing Company

Representatives

Martin Corbett SIPTU

Aoife McFadden 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-00026658-001

28/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00026658-002

28/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00026658-003

28/02/2019

The Complainant is seeking compensation as a result of being forced to retire at the age of 65 and he alleges this is discriminatory in breach of the Equality Act. Before the Complainant retired he requested a six month extension of work after the age of 65 and this was declined by the Respondent on the basis of objective grounds, custom and practice and a Collective Agreement with the workforce to implement a mandatory retirement maximum age of 65. The Complainant alleges this is a breach of Section 6 (1) and 6 (2) of the Employment Equality Acts 1998-2015 and that no consultation or negotiation took place took place on his dismissal. The Complainant also alleges there was no legitimate aim, no objective grounds or objective justification for his dismissal at the age of 65. The Respondent denied the claim. The Complainant also claimed that the Respondent was in breach of the 1993 Minimum Notice and Terms of Employment Act by not providing 8 weeks notice of the termination of his contract of employment

The Complainant was employed as a General Operative since October 2nd 1993 until his unfair termination of his employment in October 12th 2018. The Complainant submitted a claim to the WRC on February 28th 2019.

The Complainant had an excellent attendance record and earned approximately 1,000 Euros per week.

The Complainant was skilled, performed a variety of roles, was loyal and fully fit for all duties. Thus the Respondent had no objective grounds for justification of the termination of the Complainants employment. The termination was purely on the grounds of the Complainant reaching the age of 65 which contravenes the Employment Equality Acts 1998-2015.

The Respondent failed to follow any due process and there was no consultation, negotiation or agreement on the issue.

The Complainant relies on the Act which states a ground of discrimination based on age “as the treatment of one person in a less favourable way than another person in a comparable situation”

The Complainant was treated less favourably on the grounds of his fellow workers who were allowed to work on whereby the Complainants employment was terminated on the grounds of age contrary to the Acts.

The Complainant referred a complaint to the WRC against the Respondent on February 28th 2018 alleging discriminatory grounds for his dismissal based on age. The Complainants initial reaction was disbelief on the grounds he was being dismissed on the base of his age.

The Code of Practice Longer Working S.I. 600 of 2017 sets out the best practice in these cases. None of them were applied to the Complainant.

The Complainant seeks to rely on the Act which states in Section 6.2 “(the discriminatory grounds) one person is treated less favourably than another, has been or would be treated”.

The Complainants Representative submitted substantial legal precedents to support his claim including the matter of the Hight Court ruling in Quigley v HSE where no retirement age existed in the Complainants contract of employment. Also in the matter of Connaught Airport Development Company Limited v John Glavey where the WRC refused to imply a mandatory retirement age into a contract where there was no evidence the employee had been informed of such a retirement age. The Complainant also referenced, to support his case, the decisions in Dr. Anne Cleary v University College Dublin, Valerie Cox v RTE, Mary Herbert v TNT Express (Ireland Ltd), Thomas O Mahoney v South Doc, Donellan v The Minister for Justice Equality and Law Reform and the UK case of Seldon v Clarkson, Wright and Jakes. The detail of these cases and other cases submitted have been considered by the Adjudicator in assessing this case.

The Complainant submitted that even if a compulsory or mandated retirement age existed it had to be objectively justified however the Respondent compulsory retired the Complainant without any objective justification and therefore discriminated against the Complainant.

The Complainants case of discrimination necessitates the discharge of the burden of proof that there is a prima facie case to answer by the Respondent. The Respondents submission is made on a strictly without prejudice basis to the Complainants obligation to discharge this burden of proof.

The Respondent operates two manufacturing sites in Ireland hundreds of kilometres apart.

The location where the Complainant was employed is a source of reliable employment in a small rural community area. The plant has received significant investment and more is being considered.

The plant operates on a 24hr x 7 day basis with a number of shift patterns.

The Complainant has been employed for over 25 years to his retirement on October 12th 2018, his 65th birthday.

The mandatory retirement age for all production staff is 65 years of age.

The Respondent has a Defined Benefit Scheme available to all staff who joined before December 2010. The Complainant was a member of this scheme and upon his retirement received a lump sum, a salary upon retirement and is also in receipt of an annual gross payment from the Approved Retirement Fund investment created upon retirement from an AVC.

A pension statement is sent to each member of the defined benefit pension scheme annually which includes the details of “the normal retirement age” being 63. The pension scheme allows employees to retire from 53 to 58 with the pension scheme trustees consent or retire from the age of 58 with no requirement for trustee consent.

The Respondents mandatory retirement age increased to 65 as part of a site (another site) agreement in 2007, which was agreed with SIPTU and all applicable production employees to include the Complainants site. The Complainants site members, through its Union, sought parity to this agreement and it became part of on-site agreement in 2010 where the contractual retirement age of 65 was used to calculate redundancy packages.

In June 2017 the SIPTU Union approached the Respondent to request whether a number of their members (which included the Complainant) could voluntarily stay for six months beyond their contractual retirement age of 65 years. These discussions included the Complainants pending retirement.

Since the 2007 Agreement came into effect, a total of nine staff have retired across production through reaching the normal retirement age of 65. Seven of those staff were based at the Complainants site. Nobody has worked beyond 65 years and a significant number of employees in both sites retired prior to the age of 65 in accordance with the terms of the pension scheme, custom and practice and in accordance with collective agreements.

The mandatory retirement age has been enforced consistently amongst the production employees and the Respondent wrote to the Complainant on July 27th 2018 advising him of a retirement course available to him.

The Company engaged comprehensively with the Complainant on his request to continue working beyond 65 and the general issue was sent to the Labour Court by SIPTU and the Labour Court found in favour of the Respondent recommending that the current collective agreement as regards a mandatory retirement age of 65 should remain in place until such time as the parties reach an agreement on a replacement.

The Respondent submits that the retirement age is communicated to staff at regular intervals and that staff are aware of the normal retirement age since having been contributors to the pensions scheme since early in their employment.

This is further demonstrated by the collective agreement in the second plant in 2007 which raised the retirement age to 65 and the agreement in the Complainants site in 2010 that used 65 as the retirement age for the calculation of redundancies. The Complainant had the option to retire at any stage from 58 to 65 as previously set out.

The Complainants awareness of his retirement age is demonstrated by the request to work beyond that age and there is a long-standing custom and practice and that under the pension scheme the latest retirement age is 65.

Section 34 (4) of the Employment Equality Act 1998-2015 states; “…. 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 reasonable justified by a legitimate aim, and (b) the means of achieving that aim are appropriate and necessary.” Section 34 (4) is clear and unambiguous. The Respondent has fixed a mandatory retirement age for all of its production category employees, without exception. The Respondent submits that Section 34 (4) allows it, if it so wishes to fix different retirement ages for different employees or class or description of employee and the aim of fixing the retirement age at 65 for production line employees is objectively justified by the need for the Respondent to have age diversity in the workplace and to provide for intergenerational fairness. Age diversity is necessary for operation of the plant in that it ensures a mix of generations of employees so as to promote the exchange of experience and new ideas within the area of operations, which is essential to the survival of the plant.  

Thirty-four per cent of the Respondent’s employees in the production category in the Complainants site are sixty years of age and over in contrast to four per cent who are under 30 years of age.

The Respondent hires temporary staff to cover absences and holidays, and these temporary staff are then placed on a panel awaiting vacancies for a permanent position with the Respondent. These temporary staff only secure permanent employment when a vacancy arises, or a current employee retires. The temporary staff remain on this panel with the understanding that they will eventually get permanency.

The age profile of the three temporary employees currently on the recruitment panel seeking permanent employment are twenty-five years old, a thirty-one-year-old and a thirty-seventy year-old. The employees have been on the panel for approximately fifteen months. In the last 36 months, the number of permanent vacancies that have arisen in the site in the production employee category is two. A further three employees have joined the relief panel.

In support of the Respondent’s objective justification of their aim of fixing a retirement age in order to attain age diversity within the workplace there is the very real issue that those employed by the Respondent are provided with secure well-paid jobs in a rural location and as such they serve a legitimate social purpose of providing local employment within the local community.  

Within the Complainants area, the most recent census figures show that within the working population between the ages of 20 and 65, 77.5% of this working age population of both men and women are between the ages of 20 and 50 and only 22.5% are between the ages of 50 and 65.    

Within the Complainants plant, of the hourly paid employees on site, 61% are over 50. Within the SIPTU hourly paid production staff, 68% of this population are over 50 and 32% are under 50. Of the temporary production workforce, all are under 50 and 80% are under 40.

The demographics of the site are in inverse proportion to the age profile of the local population of working age.

The Respondent wishes to cite the following cases in support of its position;

Felix Palacios De La Villa v Cortefiel Servicios SA441/05 where the European Court of Justice held that a mandatory retirement age, which was used to absorb high unemployment and to promote better distribution of work among generations was an objectively justified aim achieved through proportionate means.

The question posed by the Spanish referring Court to the European Court of Justice was “whether the prohibition of any discrimination based on age in employment and occupation must be interpreted as meaning that it precludes national legislation such as that in the main proceedings, pursuant to which compulsory retirement clauses contained in collective agreements are regarded as lawful, where such clauses provide as sole requirements that workers must have reached retirement age, set at 65 years by the national legislation, and must fulfil the other social security conditions for entitlement to draw a contributory retirement pension.”

The court concluded in its statement that the answer to this question; “must be that the prohibition on any discrimination on grounds of age, as implemented by Directive 2000/78 must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, pursuant to which compulsory retirement clauses contained in collective agreements are lawful where such clauses provide as sole requirements that workers must have reached retirement age, set at 65 by national law, and must have fulfilled the conditions set out in the social security legislation for entitlement to a retirement pension under their contribution regime, where

— the measure, although based on age, is objectively and reasonably justified in the context of national law by a legitimate aim relating to employment policy and the labour market, and

— it is not apparent that the means put in place to achieve that aim of public interest are inappropriate and unnecessary for the purpose. “

The Adjudicating Officer was referred to the case of Irish Ferries v Martin McDermott EDA 1631 where a claim of discrimination on the age ground was not upheld by the Labour Court because the retirement age was collectively agreed with the Union, SIPTU, and the employee was aware of the retirement age, having been advised of it through the company pension policy. It was cited in this case that: ” the court sees no merit in the Complainant's argument that he had a legitimate expectation of working beyond age 65. The court finds that the Complainant was at all times aware that he was a member of a pension scheme that required that he retire at age 65”

In Paul Doyle v ESB International DEC-E2012-086 the Equality Officer upheld the objective justification for the aim of ensuring retention, motivation and dynamism among current employees and the means of achieving the aim though the fixing of a mandatory was appropriate and necessary and stated; “I am satisfied that the Respondent wishes to establish an age structure among its younger and older employees in order to encourage the recruitment and promotion of young people and to facilitate good personnel management. I am therefore satisfied that the Respondent has an established a legitimate employment policy with a legitimate aim for the reason why, at the latest, employees with the Respondent must retire at 65 years of age.”

The recommendations as set out In the Workplace Relations Commission Code of Practice on Longer Working SI600/2017 (WRC Code of Practice) with regard to ensuring that an employee approaching the mandatory retirement age is aware and allowed reasonable time for planning, arranging advice, and succession planning has been followed by the Respondent for a considerable number of years.  

An employee who is approaching retirement age is sent written notification requesting that the employee engage in a retirement course. As outlined above and in compliance with the WRC Code of Practice the Respondent engaged with the employee and his representative to consider his request for longer working.

The Respondent is not able to facilitate the request for longer working as it seeks to ensure intergeneration fairness with age diversity in its workplace, the nature of the work within the category of employee and the requirement of the business did not provide the opportunity to extend the Complainant’s employment beyond the mandatory retirement age taking into consideration that the Complainant having availed of the benefit of access to the defined pension scheme and was being provided with a lump sum payment from the defined benefit scheme together with a monthly pension payment.

The Respondent relies on the case of Fuchs and Kohler v Landhessen in C‑159/10 & C‑160/10 where the Courts of Justice of the European Union “accepted that a measure that allows for the compulsory retirement of workers when they reach the age of 65 can meet the aim of encouraging recruitment and be regarded as not unduly prejudicing the legitimate claims of the workers concerned, if those workers are entitled to a pension the level of which cannot be regarded as unreasonable”.

The Respondent relies upon the protection afforded to it under section 34(4) of the Employment Equality Act 1998- to fix a mandatory retirement age that is objectively justified as set out above and the means of achieving this aim of age diversity and intergenerational fairness is appropriate and necessary which the Respondent asserts it has met these requirements in its objective justifications as set out above and that the means of achieving these aims are proportionate in the circumstances.

The Complainant was and is aware of the mandatory retirement age of the Respondent. The Complainant was aware on many levels in addition to having to be proactive in initially joining the Pension Scheme and again when transferring his membership to the Joint Pension Scheme. The notification regarding the change in Schemes clearly set out the pension age of 63. The Respondent asserts that the increase in the mandatory retirement age to 65 through the Collective Agreement in 2007 therefore applied to all employees of the Respondent. 

The Adjudication Officer is referred to the officious bystander test interpreted into Irish employment contracts in the case of O Reilly  v Irish Press [1937] 71.I.L.T.R. 194 ( the O’Reilly case) where it was held “it is necessary in order to establish a custom of the kind claimed that it be shown that it was generally known that anyone concerned should have known of it or easily become aware of it.” 

Support for the finding that the Complainant was aware of the retirement age as an implied contractual term can be found in the application of the O Reilly case judgement in the Aoife McCarthy v Health Service Executive case of 2009 no. 1104JR where Hedigan J citing the O Reilly v Irish Press [1937] 71.I.L.T.R. 194 stated “ A term providing for the applicability of the retirement age to the applicant's tenure as a term of her employment with the Respondent may be implied, as a matter of fact, in reliance on the officious bystander test. The retirement age of 65 was ubiquitous in the civil service and was contained in the superannuation scheme, of which the applicant was a member.” 

The defence of the claim under Section 11 of the Minimum Notice & Terms of Employment Act 1973 (the Act). This claim has no legal basis. The Act does not apply in the circumstances where a contract of employment determines by the occurrence of an event, namely the attainment of the mandatory age of retirement of the Respondent company. It is submitted that the Respondent did not discriminate against the Complainant as alleged or at all in the claim form of the Complainant and the Respondent relies on section 34(4) of the Employment Equality Act 1998-2015 as set out above and it is requested by the Respondent that the Adjudication Officer so finds.

It is further submitted that the there is no action under Section 11 Minimum Notice & Terms of Employment Act 1973 for the reasons as set out above.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

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

‘‘(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds   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 description of those grounds for the purposes of this Act) are

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

Section 34(4) of the 2015 Employment Equality Act gave effect to Article 6 of the Council Directive 2000/78/EC of November 2000 establishing a general framework for equal treatment in employment and occupational states and Section 34(4) of the 2015 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 2015 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.

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.

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 in this case worked for the Respondent for a substantial number of years with a high skillset and unblemished record. He does not appear to have a contract of employment, was fit for all duties and claimed the Respondent had no objective grounds justifying his termination of employment at the age of 65. Furthermore, it was detailed by the Complainant that when he raised his objection to retirement, the Respondent did not follow any due process. The Complainant also outlined that his retirement was not necessitated by any legitimate aim and that his fellow comparators at work who are allowed to work on whereby the Complainants employment was terminated on the grounds of age.

The Respondent disputed that the Complainant was discriminated against and details that the retirement age is set out in the Complainant’s Company Union Agreements, Pension Schemes Booklets and Annual Pension Information. The Respondent denied it had a prima facie case to answer for discrimination based on the a number of circumstances, including custom and practice, that it had a mandatory retirement age for all employees in the category of employment, that no employee had worked beyond 65, that all had the option to retire earlier, that the Complainant suffered no or little loss as a result of going into retirement, that the general issue had been before the Labour Court and they had confirmed that the age of retirement is 65 for all employees unless changed by a future agreement Company/Union agreement. The Respondent argued that the age profile of staff in that category was heavily proportionate to over 60 and only 4% below the age of 30 and therefore they had a duty to the local community, temporary relief staff and to attain age diversity in the plant, that they did enter into a process with the Complainant to deal with his request to work beyond 65 and there was no objective justification for issuing a post retirement fixed term contract or extension of employment to the Complainant.

In arriving at my Decision, I first have to consider has a prima facie case been established by the Complainant to shift the burden of proof to the Respondent. Neither of the Parties provided a contract of employment for the Complainant. It can be assumed from this that none existed. In the absence of a specific written contractual term applicable to the Complainants employment to terminate his employment at the age of 65 I decide that he has established a prima facie case based on the absence of any specific employment agreement contractual term to terminate his employment at the age of 65 and the burden of proof shifts to the Respondent in this case.

I find it significant that while the Complainant alleges there was no communication or negotiation on the issue, the Complainants wrote to the Respondent on July 31st 2018 seeking an extension of six months to his contract of employment beyond 65. This was a request rather than a legal or contractual argued justification. The case was heard internally including the opportunity to present the Complainants case through representation and the request was refused. This included a meeting where the Complainant, for whatever reason, did not attend a meeting to discuss his request. An internal appeal was heard on his request (which was undated by arrived at the Respondent on October 5th 2018). An appeal Hearing was held on October 5th 2018 and a decision issued on October 9th 2018. SI No 600/2017 – Industrial Relations Act 1990 Code of Practice on Longer Working Declaration Order 2017 “it is good practice for an employer to notify an employee of the intention to retire him/her on the contractual retirement date within 6-12 months of that date”. The Complainant was invited to a Retirement Planning Course in July 2018. This was three months in advance of his planned retirement date. However, the Company and Union engaged in correspondence on the general issue of the 65 age of retirement in late 2017 and the matter was progressed to the Labour Court and the issue was dealt with by the Labour Court in January 2019. In addition, the Complainant’s awareness of the retirement age is again demonstrated by his representative from SIPTU making requests on his behalf that the Respondent   consider his request to work beyond the mandatory retirement age in collective talks that commenced in March 2017. Therefore, the claim that no engagement took place on the issue is not valid. The fact that the Respondent did not accede to the Complainants request is not evidence of no engagement by the Respondent on the issue.

I will now deal with the issue of the contractual situation regarding the Complainants retirement age, both express and implied. As mentioned, neither party supplied a contract of employment for the Complainant therefore I have to assume there was no specific employment contractual term for the Complainant to retire at 65. The core contractual term, outside of the custom and practice claimed by the Respondent, are the Collective Agreements for the Complainants work site and the Respondents other site in Ireland. The Agreement dated 2007 for the other site stated “Retirement Age for Production Employees will be 65, the same as other factory groups, with effect from the date of this Agreement”. The Complainants work site also concluded an agreement in 2010 but this agreement was silent on the specific age of retirement issue for Production Employees. This specific issue was brought on behalf of a Group of Workers from the Complainants site (it was not clear if this included the Complainant), represented by SIPTU , to the Labour Court seeking “some of the workers wish to work beyond the age of 65. The Workers wish to do so with the agreement of the Company”. The Court concluded that a mandatory retirement age of 65 exists across both sites “in practical industrial relations terms”. The Court recommended that the current collective agreement as regards retirement age should remain in place until such time as the parties reach an agreement on a replacement. The Respondent advised the Adjudication Hearing that to date no representation has been made by the Union in   relation to a replacement agreement. These Agreements were a comprehensive restructuring of the Company due to lower demand and included job reductions, changes in work practices, production changes, outsourcing, shift changes, facilities changes along with the inclusion of the mandatory retirement age. Quite why one Agreement had a 65 mandatory age included and another did not was not completely explained but obviously the Respondent operated on the basis it existed in both sites and the Labour Court confirmed this to be the practical situation. It could therefore be concluded that the introduction of the mandatory retirement age was a legitimate aim of the Respondent included as part of this comprehensive restructuring agreement voted upon and accepted by the workforce.

Therefore, in my assessment of the Recommendation, the Labour Court concluded that a collective agreement provided for a mandatory retirement age of 65 across both plants, including the Complainants work site. While the Complainant had retired at the date of the Labour Court Recommendation the collective agreement at the Complainants site came into force in 2010 so therefore was applicable to him at his date of retirement and the Respondent had relied on this implied contractual term in the Collective Agreement, amongst other things, to end the Complainants employment at the age of 65. Therefore, this implied term of the Complainants contract of employment, through the Collective Agreement, that there was an agreed mandatory retirement age of 65 in a Collective Agreement was vindicated by the Labour Court in 2019. Therefore in accordance with Section 34 (4) of the 2015 Act the Respondent and the Trade Union representing the Complainant on behalf of its members working in that category of employment at the Respondents two premises voluntarily entered into agreements setting a mandatory retirement age of 65 and it can be assumed that they both believed this fixing of a mandatory age was both objectively and reasonably justified by a legitimate aim, i.e. the plants restructuring plan, the balancing of the age profile of the workforce, the very generous pension scheme benefits and the need for spreading the benefits of work in a small rural community and that the means, voted upon and accepted by the workforce were appropriate and necessary. Therefore there is no evidence that section 6.2 as maintained by the Complainant was breached as no comparators were offered in the past that worked beyond 65 and as a result of the mutually agreed mandatory age it is highly unlikely to exist in the future.

The Supreme Court case of Martin Reid and James Turner v The Health Service Executive [2016]where Charleton J stated that “               when an agreement is negotiated with the intention of having particular effect on relations between two bodies, it is difficult to argue that no legal effect was intended as between them, as opposed to their membership”. As Megaw LJ held as to disproof of the binding nature of such agreement between unions and employers in Edwards v Skyways[1964]1WRL 349 at               355,”in a case of this nature the onus is on the party who asserts that no legal effect was intended and the onus is a heavy one”.

The Complainant in this case never contested the Site Agreements nor did he not elect to participate In the benefits of those Agreements, nor did he contest the payment of his dues to the union or the increase in his pay by virtue of the many pay agreements and therefore he did not make any case to disavow himself from the collective agreement and he therefore was a party to those agreements. The Respondent submitted evidence that the Complainant was a member of SIPTU and received the pay benefits under the 2010 Collective Agreement.

The Complainant also stated that other staff in his category of employment were allowed to work beyond 65. This was denied by the Respondent and the Complainant provided no evidence to support this claim. So as the Complainant did not provide any evidence of another person in his category of employment that worked beyond 65 and the Respondent denied that this had ever occurred no comparator exists of a person in the category of the Complainants employment that can be shown to have worked beyond 65 since the commencement of this Act.

The Respondents Pension Scheme states the “Normal Pension Date” as 63. This seems at odds with the Respondents submission but is not critical to the decision in this case as a fair degree of flexibility appears to have existed for staff to retire at many ages, up to 65 within the scheme. Therefore, it appears no fixed retirement age existed from a pension perspective but 65 seems to have been the maximum age to work to based on pension booklets and assumptions.

Some of the justification criteria put forward by the Respondent for the termination of employment of the Complainant included the rebalancing of the age of the workforce, opportunity for relief staff to become permanent and the contribution to the local economy. While these are important justifications the core justification for the termination of the Complainants employment at the age of 65 is that there is a binding contractual Company/Union Agreement in place, authenticated by the Labour Court, that gives effect to that mandatory age of retirement. The justifications put forward by the Respondent outlined above were not contained in any specific Company Plan or Company Policy Document, and while not doubting the Respondents intentions, they appear to have been primarily constructed to support their rebuttal of the claim. However, they may have been key to the workforce agreeing to justifying the legitimate aim of a mandatory retirement age of 65.

The effect of the alleged discriminatory act in the Complainants case did not result in any significant loss of income after he retired compared to when he was working due to the effect of the DB pension scheme.

The Complainant’s average salary for last three years of employment was €35,873.78 gross (basic) and €52,408.74 gross (with all allowances) with the average net take home earnings for the last three years of employment inclusive of all allowances being €34,090.90. The Complainant received a pension salary from the age of 65 of €26,447 gross which is in addition to the social welfare payment provided a salary in retirement of €34,364 for 2018/2019. From the age of 66 this amount will have changed to €26,571 gross by way of pension salary in addition to the contributory state pension giving a total of €39,483.. But suffice is to say the Complainant suffered no serious financial disadvantage by not being given the additional six months work he requested. This financial situation substantially meets the pension test set out in Fuchs and Kohler v Landhessen in C‑159/10 & C‑160/10.

Having examined the case precedents submitted by the parties and some other cases relevant to this decision I note that the precedent decisions are varied but only in relation to the circumstances of the individual case being decided upon in relation to the law. For example, in Mary Clarke v Louth Council (EDA 1916) the ruling was in favour of the Complainant on the basis the Respondent had relied on a retirement age that had existed at the time the Complainant commenced work but which had later been changed for the same category of workers solely on the date they commenced employment. This was not similar to the Complainants situation in the case at hand. In Paul Doyle V ESB International (DEC-E2012-086) the Respondent successfully argued they had not discriminated against the Complainant on the basis of workforce planning, the expenses of training younger staff who may leave if not made permanent and the need to introduce a full annual medical for all staff due to the safety of the work performed. In Mc Philips V ISS Facility Services (DEC-E2013-042) the decision favoured the Complainant primarily as the Respondent did not operate a standard retirement age. Again, dissimilar to the case at hand. In John Glavey v Connaught Airport Development Company Ltd (EDA 1710) the decision favoured the Complainant as there was no evidence of a retirement age in a contractual sense nor had the Complainant any awareness of a retirement age. Again, the circumstances in the case at hand were dissimilar. However, from the examination of many cases the most relevant precedent to this case is the one of Irish Ferries Limited v McDermott EDA1631) where it was held that it was appropriate and relevant to the upholding of the objective justification of the aim of the employers mandatory retirement age that the employers provided access (and contributed) to a defined pension scheme. It was also noteworthy that the mandatory retirement age in this case was established through custom and practice as implied terms and were held to be enforceable and not to breach the Employment Equality Acts.   It is also clear that the tests set out in the O Reilly V Irish Press and Mc Carthy V HSE (quoted in detail above) have been met in this case.

In this case the Complainant retired at the age of 65, when there was flexibility in the pension scheme to retire at ages from 58 upwards, there is a collective agreement which the Complainant was a party to and is bound by, that stipulates between the parties (SIPTU and the Respondent) significant work changes, restructuring and pay benefits etc. with a mandatory retirement age of 65 and where the Complainant received these financial benefits for nine years and therefore cannot reasonably expect to opt out of from the one part of the Agreement that he does not wish to accept (the mandatory retirement age of 65) which applies to all staff. No examples of where other staff who had worked beyond 65 were offered in evidence therefore confirming that there was significant custom and practice that age 65 was the maximum retirement age, the Complainant has worked beyond the stated maximum retirement age of 63 in the Company Pension Handbook, the Respondent engaged fully with the Complainant and his Union on consultation on the Complainants request to work beyond 65, the Respondent has put forward substantial reasons on both a regeneration of the age profile of the workforce and to assist the local community with new job opportunities and finally the Complainant appears, from the Information requested to have suffered little or no financial loss arising from his retirement at age 65.

I find that the Complainant did establish a prima facia case for the Respondent to reply to the     discrimination claim on the grounds of age based on the lack of any contractual terms in the Complainants contract of employment (or lack thereof in this case) to define retirement age and the burden of proof that no discrimination took place shifted to the Respondent but it has been met by the Respondent for the reasons set out above and I find that the Complainant was not discriminated against under the Equality Acts (CA-00026658-001).

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

The Complainant made the claim that under the Minimum Notice and Terms of Employment Act 1973 that the Respondent had to give him 8 weeks specific notice prior to his retirement in accordance with Section 4.1 of the Act which states “An employer shall in order to terminate the contract of employment of an employee” and as per Section 4.(2) e where the employee has more than fifteen years’ service (or more) provide notice of 8 weeks.

In this case the Complainant had more than 15 years’ service. The law and precedents in relation to this matter are clear. For example, in the Supreme Court case of Boland’s Ltd v Ward 1988 Hench J stated “The Act (The 1973 Act) is silentas to the form of notice of termination. The Act is concerned only with the period referred to in the notice and it matters not what form the notice takes as long as it conveys to the employee that it is proposed that he will lose his employment at the end of a period which is expressed or necessarily implied in the notice. There is nothing in the Act to suggest that the notice given should be stringently or technically construed as if it were analogous to a notice to quit. If the notice given, whether orally or in writing, in one document or in a number of documents, convey to the employee that at the end of that period expressly or implied referred to in the notices or notices it is proposed to terminate his employment the only question normally arising under the Act will be whether the notice is less than the statutory minimum. “

Mc Carthy J added in the above case that the question of whether the employer was acting “improperly or fraudulently manipulating the contract of employment and the Act itself so as to evade the requirements of the Act” was key to considering if the Act had been complied with. There was no suggestion in the instant case that this was a factor for consideration.

Also, while the cases related to fixed term contracts, unlike this case, the Labour Court decided in Quality and Qualifications Ireland V O Neill MND 1914 that the contract had expired through” the effluxion of time” that notice was not required.

In this case the Complainant was notified of a retirement course well in advance of the 8 weeks before his retirement date. His retirement date was 13/10/2018 and he was notified of the pension course on 27/7/20117. There was engagement between the Complainants Union and the Respondent on the Complainants (and others) retirement dates and extension of his contract in June 2017, months in advance of the Complainants retirement date thus evidencing his knowledge of its forthcoming happening. The Complainant initiated a formal internal grievance/request on July 31st 2017 concerning and stating his impending retirement on October 13th 2018, a few weeks outside the required 8 week notice period. There was also an implied term in the Company/Union situation, the Company Pension Booklets stated the Normal retirement age was “DOB +63” and by custom and practice that all employees knew the maximum retirement age was 65. The Complainant initiated a grievance against his impending retirement in advance of the 8 weeks prior to his retirement, thus proving he was on notice of the retirement date. In accordance with the principal set out above that “ If the notice given, whether orally or in writing, in one document or in a number of documents, convey to the employee that at the end of that period expressly or implied referred to in the notices or notices it is proposed to terminate his employment” the test of adequate notice in accordance with the Act has been complied with.

For all the above reasons I find the Minimum Notice and Terms of Employment Act 1973 was not contravened. (CA-00026558-002).

Claim no CA-00026558-003 was identical to CA-00026558-002 and I find that that the Minimum Notice and Terms of Employment Act was also not contravened in that claim for the reasons set out in CA-00026558-002.

Retirement Age