UDD209

Background

The Complainant joined the civil service on the 4^thJanuary 1999. He was an established civil servant whose retirement date was tied to his 65^thBirthday which fell on the 8^thof January 2017. The Complainant had sought an extension to his retirement age, but this was not granted, and he retired with effect from the 8^thJanuary 2017.The Complainant’s case is twofold 1) that his application for retention after age 65 was not processed in accordance with the circular governing such requests and 2 )his application for retention was refused because he had made a protected disclosure.

Preliminary issue.

Respondent’s case

The Respondent raised a preliminary issue in relation to the jurisdiction of the Court to hear the case. The Respondent’s position is that there was no dismissal as Mr Mc Loughlin retired from his employment on reaching the age of 65 as provided for in the Civil Service Regulation Act 1956. The Respondent citied section 2 (1) (b) of the Unfair Dismissals Acts 1977 to 2015 which states that the Act shall not apply in respect of the following persons:

• “(b) an employee who is dismissed and who, on or before the date of his dismissal, had reached the normal retiring age for employees of the same employer in similar employment.”

In relation to the Complainants second ground the Respondent acknowledged that there is an exception to the exclusions at 2(1) (a) and (b). This exception is contained in section 6 (2D) of the Acts which states:

Unfair dismissal.

• 6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

  (2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

  (a)

  (aa)

  (b)

  (ba) the employee having made a protected disclosure,

  (2D) Sections 3 and 4 do not apply to a case falling within paragraph (ba) of subsection (2) and that paragraph applies to a person who would otherwise be excluded from this Act by any of paragraphs (a) to (c) and (e) to (k) of section 2(1).

Complainant’s case.

It is the Complainants case that section 6(2) overrides any possible exclusion in section 2(1) (b) with regard to normal retirement age. Section 6(2) places the onus on the employer to prove that the dismissal was fair in cases like this arising from a protected disclosure. The representative for the Complainant openedRoyal Mail Group(Respondent) v Jhuti[2019] UKSC 55and drew the Courts attention to paragraph 30 to support the contention that once the Complainant had established some evidence that the protected disclosure was the reason for the dismissal then the legal burden lay on the employer to establish the contrary. In response to an assertion by the Respondent that all the documentation was put before the Labour Court at the hearing of PD185 and were therefore res judicata by way of issue estoppel, the representative for the Complainant informed the Court that she could not dispute that fact.

Discussion

It is not disputed between the parties that the Complainant made what he believed to be a Protected Disclosure in 2015 and therefore the Complainant is seeking to rely on section 6(2D) of the Act as set out above. The decision not to accede to the Complainants application for retention beyond 65 years and the related protected disclosure along with the papers relating to same were before the Labour Court previously and addressed in Determination PD.185 which held “that the Appellant has not made out a complaint that penalisation within the meaning of the Act occurred within the cognisable period”. It is the Court’s view that but for the fact that the issue has already been decided the Complainant would have been entitled to take a claim under this Act. However, the issues he is seeking to rely on are res judicata by way of issue estoppel.

The Court needs to consider the second issue raised by the Respondent that the Complainant’s claim for unfair dismissal is debarred by section 2(1)(b) of the Act. The issue to be considered is whether or not the Complainant had reached the normalretiring age for employees of the same employer in similar employment. It is not disputed that the Complainant attained the age of 65 on the 8^thJanuary 2017 the date his employment terminated. It was submitted to the Court by the Respondent that this was at the time in question a mandatory retirement age for civil servants who had commenced work in the Civil Service prior to 1st April 2004. The Complainant in his submission confirmed that “Civil servants recruited prior to 1^stApril 2004 had a mandatory retirement age of 65.”On that basis it is not disputed that 65 was the normal retirement age applying to the Complainant.

Determination

The Court determines that as the Complainant had reached the normal retirement age for employees in his employment, he is debarred by section 2(1) (b) from pursuing a claim for unfair dismissals under this Act.

The Decision of the Adjudication Officer is upheld. The appeal fails.

The Court so Determines.

Signed on behalf of the Labour Court



Louise O'Donnell
MK______________________
12 February 2020Deputy Chairman



NOTE

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