Complainant

Respondent

Parties

Pat Hayes

Ball Beverage Packaging Ireland Limited

Complainant

Respondent

Anonymised Parties

Pat Hayes

Ball Beverage Packaging Ireland Limited

Representatives

SIPTU

IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00022194-001

27/09/2018

The Complainant claims that he was discriminated on the grounds of age contrary to Section 6(2) of the Acts by being forced to retire at the age of 65.

The Respondent denies the claim.

The Complainant claims that he commenced employment with the Respondent on 16 December 2000 as a General Operative and he claims that his permanent contract of employment did not specify a retirement age.

The Complainant said that he approached Ms. A, HR manager, to request an extension to remain working for another year beyond his 65th birthday as he had substantial financial obligations to meet such as a mortgage. He said that Ms. A that she will seek legal advice on the matter, as it was a current topic at the time as there were discussions ongoing nationally about an extension to the pension age.

The Complainant said that at a Trade Union meeting in November 2017, the shop steward raised the issue of staff nearing retirement, possibly being allowed to stay on in the work force beyond their 65th birthday. Ms. A said that the Respondent had consulted with its legal advisors and could report back that there was no change to the law in relation to staff being allowed to stay on beyond the retirement age and the Respondent was not changing its policy at that point.

The Complainant’s evidence is that the issue was raised a number of times, but the Respondent just came back and said that it was waiting for changes to the legal situation before it would be changing its stance on it. The Complainant said that he was compulsory retired on 11 May 2018.

The Complainant said that he did not want to retire at that time and there was no retirement age set out in his contract of employment or in the Respondent’s Company handbook. He said that there is no compulsory retirement age in the private sector. He said that he was not entitled to his state pension for a year later when he turned 66 years old and did not want to leave employment until then.

The Complainant said that he was retired and removed from his job because of his age and this was the only reason given. He said that this is direct discrimination on the grounds of age. He said in such cases it is for the Respondent to show that its decision is objectively justified by reference to the existence of a legitimate aim and evidence that the means of achieving that aim is appropriate and necessary.

The Complainant referred to Statutory Instrument 600 of 2017 which set out the best practice in responding to requests to work beyond the retirement age namely that the employer needs to consider utilising the skills and experience of older workers; should have objective justification of retirement and standard retirement arrangements. The Complainant also said that the Statutory Instrument sets out how an employer should manage a request from an employee in how to work longer.

The Complainant said that the grounds for the refusal of a request to remain in employment should be set out and communicated to the employee and there should be recourse to an appeals mechanism through the established grievance procedure.

The Complainant claims that he has established a prima facie case as per Southern Health Board v Mitchell [2001] and therefore the burden of proof should now shift to the Respondent to prove otherwise. He also relied on the Donnelly v the Minister of Justice, Equality and Law Reform with regard to that the legitimate aim or purpose must be appropriate; Palacious de la Villa v Cortefiel Services SA where an employee should be allow to work beyond the retirement age to avail of pension retirements; O’Leary v Mayfield Community Employment Enterprises Dec – E2015-144 and Kavanagh v Candle Community Trust Dec-E2016-018, where the Equality Officer found in the Claimants favour in similar age related matters.

The Respondent is a manufacturer for almost 40 years and employs circa. 154 people.

The Respondent said that although the production process is highly automated it is nonetheless still very much hands-on with mechanical-type skills being very important. The tasks are very physical at times, particularly during maintenance where heavy physical work is carried out.

The Respondent said that the Complainant was employed as a production operative since 20 February 2002 and he retired at 65 years of age as is explicitly stated in his contract of employment, which was produced in evidence. The Respondent also said that the retirement policy is in place in the organisation since 1978, is well know by all employees and operates without exception. The Respondent said that the Complainant, would be well aware of this due to his own Trade Union involvement.

The Respondent said that its retirement age of 65 is reasonable and proportionate. It said it is seeking to facilitate a balanced age structure among production operatives employed and it also assists in preventing disputes concerning an employee’s fitness to work beyond certain ages, as per Fuchs & Kohler v Land Hessen (CJEU case, C-159/160/10). The Respondent was keen to demonstrate that elements of the role are physically demanding and deems that the retirement age is set at 65 due to this and is justified and relies on the decision in Marine Pilot v Port Company (Adj-00004560) to support maintaining safety of the employees. The Respondent said that as part of its continuous workforce planning programme it has to attempt to hire replacements for staff who are leaving, and this case was no different.

The Respondent also was adamant that the Complainant never made a request for an extension to his employment beyond 65. The Respondent said that there was no written record of a request and the Complainant has not in evidence identified when the request was made. The Respondent said there were discussions and questions from the Trade Union about the Respondent’s retirement age generally, but never individually about the Complainant. The Respondent said that the Complainant had no legitimate expectation that he would be permitted to remain in employment after his 65th birthday. No other member of staff has ever remained on in the Respondent’s employment beyond this age. The Complainant is a member of the Defined Benefit Pension Scheme and yearly annual reports issued to him clearly stating that a pension is payable on reaching 65 years of age. The pension scheme documentation clearly states that his retirement age is 65. The Respondent relies on O’Reilly v Irish Press [1937] to support its claim that the Respondent had established a custom and practice in this regard.

The issue for me for consideration is whether the Respondent dismissed the complainant in circumstances amounting to discrimination on grounds of age in terms of Section 6 of the Employment Equality Acts, 1998-2015 and contrary to Section 8 of those Acts when it terminated his employment.

Section 6(1) of the Act provides that discrimination shall be taken to occur where “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)

...

(f) defines the discriminatory ground   of age as follows – “as between any two persons … that they are of different ages, but subject to Section (3) …“

Section 85A of the Act sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts.

The Labour Court has stated in Melbury Developments Limited and Valpeters (EDA0917): Section 85A of the Act provided for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. While those facts will vary from case to 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. Section 85A places the burden of establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.

The relevant law is in Section 6(1) of the Employment Equality Acts 1998-2004 and the Equality (Miscellaneous Provisions) Act 2015. This latter amends the former Act in respect to retirement age in requiring retirement on grounds of age to be ‘objectively and reasonably justified by a legitimate aim and requiring the means of achieving that aim to be ‘appropriate and necessary’.

This confirmed the widely accepted jurisprudence in respect of the application of the prohibition of discrimination at the point of retirement on age grounds.

The Complainant submits that he was forced to retire due to the company maintaining that it had a mandatory retirement age in place based on custom and practice once he reached the age of 65. The Complainant said that he was not aware of this custom or practice. However, he was asking if the Respondent was going to change the retirement age of 65 years on foot of the national discussion on the extension to the pension age. He stated that a retirement age of 65 years was not included in his contract of employment. He said he did not know of other members of staff who were permitted to work past the age of 65.

The Respondent said that Complainant never made a case of looking to extend his time in the Respondent and notwithstanding, maintains that the Complainant had a clause in his contract of employment stating that the age of retirement was 65-year-old and it was clearly set out in the Defined Benefit Pension scheme. It also said that it has a well renowned custom or practice on the matter as no one it allowed to stay beyond 65.

Having heard the evidence from both parties, I am satisfied that the Complainant has not established a prima facie case of discrimination on the grounds of age. I note that the Complainant in his own submission rightly points to the S.I. No. 600 of 2017 Industrial Relation Act 1990 (Code of Practice on Longer Working) (Declarations) Order 2017, which sets out for both the employees and employers the best practice in managing the engagement between the parties in the run up to retirement. I am cognisant that this document is established to maintain good Industrial relationships between the parties and is not in its own right a code normally linked to the Employment Equality arena. However, it sets out a very basic honourable code of practice that parties should be acquainted with, particularly staff with an interest and involvement in Trade Union matters, which I understand that the Complainant did. The main standard requirement for an employee reaching the age of retirement that wishes to stay longer is to make a request in writing no less than three months from the intended retirement date to be followed up with a meeting between the parties. I am satisfied that piece is totally missing from the evidence presented in the case before me here.

I am satisfied that the Complainant’s contract of employment clearly states that the retirement age is 65. I have been presented with that evidence. I am also satisfied that all the documentation in relation to the Defined Benefit pension scheme also clearly states 65 as the retirement age. I note that the evidence is that the custom and practice, which is well known and not varied from, is that the retirement age is 65. The Complainant has himself asked if the Respondent was thinking of changing the age of retirement, which is at odds to his claim that he did not know the custom and practice and had an expectation to stay on in work beyond 65 years old.

I note the decision in McCarthy v HSE [2010] ELR165 where it was deemed that the Complainant was “on notice” that her retirement date is approaching. I am satisfied that was the case before me also. The Complainant was not caught by surprise that his retirement date was fast approaching.

I am also satisfied that there is no written request from the Complainant for an application to stay longer than 65 years of age. On the balance of probabilities, I am satisfied that no formal application was made to the Respondent by the Complainant to request same. I also note that the Complainant appeared to attend the formal requirement course without any signs of concern or reluctance. I note that no grievance was raised against the Respondent’s decision to retire him.

All in all, I am satisfied that an application to remain in employment beyond his 65th year was never made and therefore the Respondent could not be adjudged to have done anything more than apply the terms of his contract of employment and retire him at 65 years. I am satisfied in this case that such an application would have to be before the Respondent, at the very least, for the steps to be in motion for such a claim. I find that they were not. Accordingly, I find that the Complainant has failed to establish a prima facie case of discrimination by the Respondent on the ground of age.

In reaching my decision, I have taken into account all the submissions, written and oral that were made to me.

Based on all of the foregoing, I find, pursuant to Section 85A of the Employment Equality Act, that the Complainant has failed to establish a prima facie case.  

Employment Equality Acts – age discrimination – no request - failed to establish a prima facie case