DEC-E2020-002

Equality Officer’s Decision No: DEC-E/2020/002

Parties

Fitzpatrick

(Represented by Ms. Kiwana Ennis BL – Instructed by IHREC)

And

(i) Commissioner of An Garda Síochána and

(ii) The Minister for Justice Equality and Law Reform

(Represented by Mr. Anthony Kerr SC and Mr. Des Ryan BL

– Instructed by CSSO.)

File No: EE/2007/587

Date of issue: 5 October 2020

DISPUTE

This dispute involves a claim by Mr. Brian Fitzpatrick that he was discriminated against by the respondents on grounds of age, in terms of section 6(2) of the Employment Equality Acts, 1998-2004 and contrary to section 8 of those Acts, as regards the manner in which his application to become a Trainee Garda was processed as part of an Open Competition for Selection of Garda Trainees in An Garda Síochána in October 2007.

BACKGROUND

2.1 The complainant states that he is a sworn member of the Garda Reserve since 2006 and, inter alia, as a result of his experience he applied to be a member of An Garda Síochána in October 2007 through a competition conducted by the Public Appointments Service (“PAS”) on behalf of the first named respondent. The complainant states that within a few days he received a response from PAS advising him that he was ineligible for consideration as he was over thirty-five years old – which was the upper age limit that applied. The complainant contends that this amounts to discrimination of him on grounds of age in terms of section 6(2) of the Employment Equality Acts 1998-2004 and contrary to section 8 of those Acts. The respondents reject the assertion that they discriminated against the complainant, stating that the upper age limit is prescribed by the Garda Síochána (Admissions and Appointments) (Amendment) Regulations 2004[1] and that the operation of this upper age limit is objectively justified in terms of sections 34 and/or 37 of the Employment Equality Acts 1998-2004

2.2 The Equality Authority (as it then was – now the Irish Human Rights and Equality Commission (IHREC)) referred complaints against each of the named respondents on the complainant’s behalf, under the Employment Equality Acts, 1998-2004, to the Equality Tribunal (as it was then) on 13 November 2007. In accordance with her powers under the Acts the Director delegated the complaints to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaints commenced on 1 May 2008 - the date they were delegated to me. As one of the complaints is against the Commissioner of An Garda Síochána the complainant is required to comply with the terms of section 77(7) of the Acts and refer the matter to the Commissioner in the first instance. The complainant wrote to the Commissioner on 23 October 2007 in this regard and received a response on 31October 2007. It is submitted on his behalf that this correspondence complies with the requirements under section 77(7) of the Acts.

2.3 This complaint is one of several linked cases which were the subject of judicial review proceedings which commenced in 2008. In February 2009 the High Court (Charlton J) held that the Equality Tribunal, as a body whose powers were defined by statute, was not entitled to commence a Hearing that had a result which enabled that Tribunal to overrule or disapply a Statutory Instrument made by the Minister for Justice, Equality and Law Reform (as it then was) even in circumstances where it considered that the Regulations were inconsistent with the Framework Directive[2]. The Equality Tribunal appealed the High Court judgement and in June 2017 the Supreme Court, whilst upholding the judgement of the High Court, decided to refer a question to the Court of Justice of the European Union (“CJEU”) under Article 267 of the Treaty on the Functioning of the European Union (“TFEU”). The question referred was, in essence, whether a national body established by law, with a general jurisdiction to enforce EU law (in this case equality law) must be taken to have jurisdiction to disapply national legislation that was in breach of the relevant EU law, notwithstanding that jurisdiction also lay with the High Court. The CJEU delivered its judgement on 4 December 2018[3] (the functions of the Equality Tribunal transferred to the Workplace Relations Commission on 1 October 2016). It held that EU law, in particular the principle of primacy of EU law, must be interpreted as precluding national legislation which restricted a national body established by law to ensure the enforcement of EU law in a particular area (such as the Workplace Relations Commission), including the jurisdiction to disapply a rule of national law that is contrary to EU law. In light of the judgement of the CJEU the Supreme Court set aside the judgement of Charlton J in the High Court and the Workplace Relations Commission proceeded to hearing on the complaints. Hearings took place on 12 July 2019, 20 November 2019 and 21 November 2019.

SUMMARY OF COMPLAINANT’S CASE

3.1 The complainant states that he submitted an application to the Public Appointments Service on 12 October 2007 in response to an advertisement inviting applications in respect of an Open Competition for Selection of Garda Trainees in An Garda Síochána. The complainant further states that he received a response from the Garda Recruitment Unit of PAS on 15 October 2017 advising that applicants had to be between the age of 18-35 years on 2 September 2007 to be eligible and that as he was 38 years old at the relevant time, his application could not be processed further and the invitation to examination was withdrawn. The complainant adds that he considered this to be discrimination of him on grounds of age contrary to the Employment Equality Acts 1998-2004 and he wrote to the Commissioner of An Garda Síochána on 23 October 2007 advising it of his opinion and that he intended to pursue the matter to the Equality Tribunal in due course. The complainant further states that he received a reply on behalf of the Commissioner on 31 October 2007 advising that entry to An Garda Síochána was governed by the Garda Síochána (Admissions and Appointments) (Amendment) Regulations 2004[4] and that these Regulations prescribed an upper age limit of eligibility of 35 years. It is submitted on behalf of the complainant that the aforementioned correspondence complies with the requirements prescribed at section 77(7) of the Employment Equality Acts 1998-2004. The complainant states that the Equality Authority referred complaints against both named respondents, alleging that he was discriminated against on grounds of age, in terms of section 6(2) of the Employment Equality Acts 1998-2004 and contrary to section 8 of those Acts, on 13 November 2007.

3.2 The complainant rejects the respondent’s argument that the application of the age restriction as set by Regulation 5(1) of the Garda Síochána (Admissions and Appointments) (Amendment) Regulations 2004[5] does not amount to discrimination on grounds of age contrary to the Employment Equality Acts, 1998-2004. Counsel for the complainant refers to the correspondence received by the complainant from the Garda Commissioner and PAS in October 2007 and submits that this correspondence contradicts the argument advanced on behalf of the respondents. Counsel also refers to the comments of Mr. A and Ms. D at the Hearing which contradicts the respondents’ argument on the issue. Counsel submits that a prima facie case of discrimination on grounds of age has been established and consequently the burden shifts to the respondent in accordance with section 85A of the Employment Equality Acts 1998-2004.

3.3 The complainant’s representative referred seperate complaints against the two named respondents. Each complaint alleges discrimination based on the same issues – the exclusion of the complainant from the competition to select Trainees for An Garda Síochána conducted by PAS in October 2007. In the course of the Hearing Counsel for the complainant submitted that both named respondents share equal liability for the alleged discrimination.

3.4 The complainant states that he became a member of the Garda Reserve in 2006. He completed a medical test which comprised a bleep test, a push/pull test and completed a fitness course but did not undergo a full physical examination. He was also subjected to a background test. He adds that he wears a uniform similar to full-time members and is attached to Store Street Station in Dublin, where he is assigned for duty 30-50 hours each month. The complainant adds that he performs beat duties (accompanied by a full-time member); that he forms part of the Mobile Unit at large events (concerts, sports matches) as operational needs require; that he is trained in the use of force (baton and handcuffs) and must refresh this training every two/three years. In response to questions from Counsel for the respondent the complainant accepted that (i) in his role as a Garda Reserve he is a volunteer; (ii) he had limited powers of arrest; (iii) he was aware that there was an upper age limit for access to the Garda Reserve and assumed that the age limit applied to access to full-time members and (iv) even if he went through the selection process he may still not have become a Trainee. Nonetheless, the complainant contends that his service and experience as a Reserve Garda should have been taken in account in respect of his application. The complainant states that he is currently employed as a Communications Officer in DMR and confirmed that this is a recognised post in An Garda Síochána.

3.5 Dr. Thomas, a former senior ranking police office in the UK, attended the Hearing on behalf of the complainant. He states that for several years he was Assistant Chief Constable at Kent Police Force, six years of which he was responsible for Recruitment, Personnel, Training and Professional Standards. The witness states that Kent Police force currently has no upper age limit for recruitment to the force - a characteristic common to many other police forces in the UK - although, when questioned by Counsel for the respondent and the Adjudication Officer/Equality Officer he stated that an age limit might have operated in 2007. He was unable to say what this age limit was. Dr. Thomas detailed the fitness requirements operated by Kent Police Force. He added that it was a standard test, which applied, inter alia, to all police officers in the force, including recruits, regardless of gender. He further stated that the test was mandatory and must be completed and passed every year. Once a recruit or officer meets the required standards, they are considered suitable for assignment to full operational duties (with reasonable adaptations if necessary), although, in response to a question from Counsel for the respondent, he accepted that officers in the Riot Squad etc. are required to meet higher standards of fitness. The witness stated that the physical testing process does not include any assessment of upper body strength. He added that personnel who fail the test may be permitted to repeat the test on a couple of further occasions but ultimately, they may be subject to the standard Unsatisfactory Underperformance Procedures. In response to a question from Counsel for the complainant the witness stated that a consequence of recruiting too many young people is that there is a “glut” of retirements within a short space of time and that this creates a difficulty for recruitment planning.

3.6 Professor Moyna, is Professor of Clinical Exercise Physiology at Dublin City University, appeared for the complainant. The witness provided further details of his academic and professional qualifications. A Report authored by Professor Moyna as regards the operation of the upper age limit and the fitness regime operated by the respondents was furnished to the Adjudication Officer/Equality Officer. The witness agrees with Dr. Murphy-Griffin that the role of a Garda involves hazardous situations and is physically demanding. He expresses the view that aging is a multidimensional construct and opines that it has a primary and secondary component. Primary biological aging refers to the progressive deterioration of one’s physiological function which occurs as a person gets older. Secondary aging refers to “accelerated deleterious structural and functional age-related changes caused by lifestyle factors that quicken the rate of biological aging”. The witness adds that reducing sedentary behaviour and maintaining levels of physical activity is the single most important means of limiting the rate of decline in physiological function. The witness adds that in his view, “selecting an arbitrary maximum chronological age of 35 years for entry to An Garda Síochána assumes that all individuals undergo the same age-related deterioration in physical function and fails to take account of the complex nature of biological aging, and in particular, the role of a healthy lifestyle.”. He adds that he “sees no reasons why women and men over the age of 35 years who attain an age and sex adjusted fitness level should not be allowed apply to join An Garda Síochána”. Professor Moyna expressed concern that “members of An Garda Síochána are not required to maintain a minimum fitness level or undergo any undergo any additional fitness evaluations through their career after graduating from Training College” and noted there was no data available determine if members possess optimal levels of muscle strength, endurance and cardiorespiratory fitness. In response to a question from Counsel for the respondent the witness stated that his Report focussed on physical fitness only.

3.7 Counsel for the complainant notes that Articles 4 and 6 of the Framework Directive[6] provides a derogation to the principle of equal treatment. Article 4 provides as follows –

“1. Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.”

Counsel for the complainant states that this is often referred to as the general occupational requirement derogation and requires the respondent to demonstrate that its actions of constitute a legitimate aim; that the characteristic constitutes an occupational requirement and that the means of achieving that legitimate aim is proportionate.

Article 6 of the Framework Directive Framework Directive[7] provides as follows

“1. 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.”

Counsel for the complainant states that this provides that direct discrimination on grounds of age is justified and requires the respondent to demonstrate that its actions of the constitute a legitimate aim; and that the means of achieving that legitimate aim is proportionate and necessary.

3.8 Counsel for the complainant note that Article 4 and 6 of the Framework Directive[8] are transposed into Irish law by sections 37(2) and 34(5) respectively of the Employment Equality Acts 1998-2004. Counsel agrees that the test required to demonstrate objective justification in terms of Article 4(1) of the Acts is (i) the objective pursued must be a legitimate aim; (ii) the characteristic required must constitute a genuine and determining occupational requirement for the occupation activities in question, (iii) the characteristic must be age related, and (iv) the requirement must be proportionate. Counsel submits that in relying on Articles 4 and/or 6 of the Framework Directive[9] the respondent is seeking to depart from the operation of the principle of equal treatment. Counsel notes Recital 23 of the Directive which states that a difference in treatment may be justified in “very limited” circumstances. It is submitted that the Articles and the relevant provisions of the Employment Equality Acts 1998-2004 must be interpreted strictly. Counsel further submits that the respondent is required to produce cogent evidence in support of its arguments and argues that it has failed to do so.

3.9 Counsel for the complainant notes that the respondent submits that the legitimate aim in the instant case is to ensure the ongoing and proper functioning and operation of An Garda Síochána and that it relies on the Wolf[10]case in this regard. Counsel for the complainant submits that the respondent has failed to demonstrate that the operational capacity of An Garda Síochána amounts to a legitimate aim as required. Counsel submits that the circumstances in Wolf[11]was for a limited period and that older staff carried out other duties. Moreover, the CJEU was provided with scientific data in support of its argument. No such data was submitted, or limitation applies, in the instant case. Counsel further notes that in Sorondo v Academia Vasca de Policia y Emergencias [12] the national measure in issue provided for a transfer to other less physical duties when a person reached the age of fifty-six years, several years before retirement. Consequently, there were mechanisms to deal with older employees doing physical roles. Counsel notes the respondent’s confirmation that no such mechanisms exist in An Garda Síochána and submits that the assertion by the respondent that without the upper age limit there would be large numbers unable to perform duties requiring high levels of physical exertion was a generalisation, unsubstantiated by data. Counsel for the complainant did however, accept that the role in An Garda Síochána involves high levels of physical activity and that this characteristic is a genuine and determining occupational requirement for the role in that role.

3.10. Counsel refers to the EU Commission’s Paper “Age Discrimination and European Law” and notes the comments that the use of age as a proxy for characteristics such as ill health or incapacity and warns against stereotypical assumptions. Counsel adds that the Commission’s Paper notes that “individual deviations from statistical trends are often so great as to ensure that age often constitutes an inadequate proxy for any given individual.”[13] Counsel submits that the respondent’s arguments that the characteristic of physical capacity is linked to age is underpinned by such a stereotypical approach, that they are general in nature and do not contain any specifics. Counsel further notes the Commission’s comments that “the use of such age limits will have to be shown to be clearly necessary; even a pressing legitimate aim such as public safety cannot justify the sweeping use of age limits where individual assessment is possible.”[14]. Counsel submits that it is possible for older people to meet the physical standards required in An Garda Síochána. This matter could be established by regular testing once a person is attested. Counsel adds that the application of the age limit is a blunt instrument. The objective of having a police force which possesses the physical capacity to perform the full range of duties could be accommodated by regular physical testing when conducting the technique training every two years and that this would not give rise to significant cost.

3.11 Counsel for the complainant rejects the arguments advanced on behalf of the respondent in respect of the return on investment. Counsel argues that a person recruited for example at forty years of age and retiring when s/he is sixty years’ old would satisfy the return the same as a person recruited at thirty-five years’ old and retiring at fifty-five years of age. Counsel argues that older people bring different experiences to situations, many of which are positive in nature, which have the capacity to bring other benefits. Counsel concludes by arguing that cost/economic factors cannot, in isolation, justify discrimination.

3.12. Counsel for the complainant notes that many other police forces in the UK either do not have an upper recruitment age or permit applications by persons older the thirty-five years. Counsel also notes the comment contained in the “Future of Policing in Ireland”[15]that “Age diversity should be encouraged. The current maximum age limit of 35 is outdated and should be scrapped”. Counsel submits that the respondent has failed to discharge the requirement that the measure applied is proportionate. Counsel argues that the professional medical evidence adduced in the course of the Hearing states that the effects of aging can be delayed by engaging in physical and lifestyle change and that the objective can be assessed during a person’s career in An Garda Síochána instead of the operation of an upper recruitment age limit of 35 years. Counsel submits that in the event that the operational effectiveness of An Garda Síochána is in jeopardy, the Minister can address the matter by applying section 37(4) of the Employment Equality Acts, 1998-2004 to particular competitions. Counsel submits that the measure applied by the respondent is not appropriate and necessary. It goes beyond what is necessary to achieve the legitimate aim and that aim could be achieved by other means. Counsel argues that, in the circumstances of the instant case, the respondent has failed to demonstrate the impugned measure is objectively justified in terms of Article 4 and 6 of the Framework Directive[16] and the relevant provisions of sections 34 and 37 of the Employment Equality Acts 1998-2004.

SUMMARY OF RESPONDENT’S CASE

4.1 The respondents reject the assertion that either of them discriminated against the complainant on grounds of age, or at all, contrary to the Employment Equality Acts 1998-2004 in respect of the Open Competition for Selection of Garda Trainees in An Garda Síochána which was held in October 2007. Mr. A, who is the Head of the Unit which oversees the Garda recruitment process in the respondent, attended the Hearing in November 2019. He detailed the role that PAS initially conducted in the course of the competition for Garda Trainees in 2007. He clarified that PAS assessed the application forms received to determine if the applicants met the age requirements – that on 2 September 2007 applicants were between the age of 18 and 35 years of age. He confirmed that if the application forms indicated that the applicant fell outside of this age range the application was rejected. He further confirmed that as the complainant fell outside the age range, his name was not on the list sent to the relevant Unit in the Department of Justice and Law Reform following this initial assessment in October 2007, as PAS is required to conduct the competition in accordance with the conditions set by the Garda Commissioner, including the relevant Regulations.

4.2 Ms. D, an official who works in the Garda Recruitment Division in the Department of Justice and Equality, also attended the Hearing. She detailed what was involved in the remaining stages of the competition – competency tests, medical, physical and vetting/security check. Ms. D provided details of the numbers of candidates which failed at each stage of the selection process in 2007 and stated that 85% of the candidates who were deemed to pass the initial stage of the selection process progressed to the formal Training Programme in Templemore that year. In response to a question from the Adjudication Officer/Equality Officer Ms. D stated that (i) the complainant’s name was not on the list of suitable candidates passed to her from PAS and (ii) the Department did not assess the complainant’s application form in any way. Counsel for the respondents submits that the age restriction applied by PAS as part of the initial stage of the selection process does not amount to discrimination on grounds of age contrary to the Acts. There are other elements involved in the process and the complainant may not have met those requirements. Counsel further submits that there is a difference between eligibility and appointment under the Regulations and argues that the initial burden of proof required of the complainant has not been discharged. The respondents made no comments on the arguments advanced by Counsel for the complainant that they were equally liable for the alleged discrimination, notwithstanding the arguments that the application of the Regulations is not unlawful.

4.3 Dr. Murphy-Griffin, a lecturer at Waterford Institute of Technology in the Department of Sport and Exercise, located in the School of Health Sciences, appeared for the respondent. The witness provided further details of her academic and professional qualifications and stated that she has a personal interest in the physical training regime of An Garda Siochána as she is married to a serving member. She added that she is currently supervising a PhD student who is a member of staff at the Department of Physical Education at the Garda Training College in Templemore. The respondent submitted a Report authored by Dr. Murphy- Griffin which she spoke to in the course of the Hearing. The witness stated that the research reviewed in her Report clearly highlights the importance of physical fitness for the proper functioning of a police officer regardless of age or gender, in particular in safely dealing with arrest scenarios. She added that it is commonly agreed that physical fitness decreases with age and that its effects vary according to several factors, including life history, genetics, lifestyle and healthy behaviour and she notes that peoples’ cardio and respiratory fitness will decline at different rates having regard to these factors. Finally, the Report notes that fitness testing applied in An Garda Síochána was required due to the physically demanding nature of police work and to ensure that members would be physically able to perform the necessary tasks without endangering themselves or others. The standards were age related and age categories were required because of the decreasing levels of physical fitness with increasing age. Dr. Murphy-Griffin states that that -following further research, she believes that this remains the position and that the fitness tests should take account of this and that it is a factor for consideration when examining the age of potential recruits. In the course of thee Hearing she is of the view that she can speak from a position of particular knowledge as she was involved in the development of the physical fitness requirements in An Garda Síochána in 2006.

4.4 In response to questions from Counsel for the respondent, Dr. Murphy-Griffin stated that she agreed with the comments advanced by the German Government to the Court of Justice of the European in Wolf v Stadt Frankfurt am Main[17] that lung function, musculature and endurance diminish as a person gets older and confirmed, in her view, that these factors equally apply to An Garda Síochána. The witness further agreed with the comments contained in two Reports submitted by or on behalf the Basque Police force to the Court of Justice of the European Union in Sorondov Academia Vasca de Policia y Emergencias[18], in particular that “police work is both physiologically and psychologically demanding which over time leads to a deterioration of adaptation mechanisms and an increase in chronic diseases that cause the functional age to be higher than in other professions” and that “from the age of 40 years there is an age associated decrease in resilience to stress and a subsequent inability to perform another task for a variable period of time.”.The witness accepts that these views assist in justifying the establishment of a maximum age limit for entry to the Basque Police Force and that they equally apply in the instant case. In response to questions from Counsel for the complainant the witness stated that fitness levels could be achieved and maintained if testing was available on a regular basis. The witness also stated that her understating was that the only time that a Garda undergoes physical fitness testing is pre-attestation and that any results achieved at that stage may not be indicative of what a person’s fitness levels might be five years later at age forty – assuming the person joined on Garda Síochána at the upper age limit.

4.5 Inspector Z, who is the Inspector in Charge of Employee Relations at the Garda Headquarters, attended the Hearing. He detailed the Training Programme undertaken by trainees/probationers over a two- year period which results in the award of a BA in Applied Policing. The witness added that the total cost to the respondent for all issues connected with the two-year programme is approximately €73,000. In response to questions by Counsel for the respondent the witness stated that (i) full-time members of An Garda Síochána have far more extensive powers that Reserve members insofar as the former deals with all criminal activity and the latter has limited duties, usually under the supervision of a full-time member; (ii) there is no provision to assign members off night duty – any assessment of capability must be determined by the Chief Medical Officer (“CMO”) who must recommend assignment to light duties; (iii) there were currently (November 2019) 550 member on light duties; (iv) he has been a member of An Garda Síochána since 1996 and stated that it was his opinion, in light of this experience, that subduing a suspect is a physically demanding task and (v) there were, on average, two serious assaults on Gardaí which required hospitisation each week.

4.6 Inspector Z detailed the shift pattern which operated in 2007. Members were required to do 10-hour shifts – 6 days on/4 days off. In 2008 this changed to 8-hour tours, including seven consecutive night shifts 10pm-6am. The witness submitted that these shifts represent stamina sapping rosters, which are exacerbated if members have to deal with the increased demands which apply to the Border Region, Dublin and areas impacted by organised crime. Inspector Z added that the age profile of serving members is monitored monthly and submitted that any time the potential exists to lose 1,200 members – which is a significant corporate risk. He further stated that a member of An Garda Síochána can retire on full pension after thirty years’ service and that most members have retired by the age of fifty-five. The witness added that typically loses 300 members of An Garda Síochána on retirement annually. To address this a similar number are recruited, although there were no new recruits appointed to An Garda Síochána between 2009-2014 due to a recruitment embargo. The witness states that it takes 3-5 years to make a member fully effective and the respondent requires an appropriate return on its investment. Details of the age profile of An Garda Síochána was submitted by the respondent in support of the process involved in keeping the issue under review. The witness argued that the operation of the upper recruitment age limit of 35 years is primarily operational to provide effective policing by ensuring a constant flow of skilled, trained and experienced officers and it underpinned the respondent’s succession planning. He added that the reduction of operational capacity of An Garda Síochána would be detrimental to the safety and security of society. In response to a question from Counsel for the complainant Inspector Z stated members were required to complete “Techniques Testing” every two years and accepted that this was not the same as a fitness test. Finally, the witness stated that (i) members are expected to respond to any call unless they are on “light duties” – which results in assignment to non-operational/non-confrontational duties and (ii) that there would be a cost to the respondent if periodic testing was operated for all members and he confirmed that members are not tested for physical fitness levels after they are attested.

4.7 Sergeant Y, who was in charge of the Garda Reserve training in The Training Unit in Templemore between 2010-2015 attended the Hearing on behalf of the respondent. He stated that the primary function of a Reserve Garda is to support/assist full-time members is the discharge of duties – a reserve member has no role in the custody/care of prisoners. Reserve members are also perceived as having a role in bridging links between An Garda Síochána and the community – accompanying member to schools. Retirement homes, community watch meetings. The witness stated that people who wish to become a member of the Garda Reserve apply though a competition organised by PAS. Candidates attend a short interview. Those deemed suitable undergo a medical screening – no fitness assessment is conducted. Candidates then complete 120 hours training in Templemore over five phases. On successful completion of the training the candidates are appointed as Garda Reserves and assigned to stations as operational needs require. They are subject to a two year’ probationary period and there is no fitness test after attestation. In response to questions from Counsel for the complainant the witness accepted that some of the tasks assigned to a Garda Reserve could involve physical engagement.

4.8 Ms. E, a senior official from the Department of Justice and Equality’s Garda Division, states that her Division is involved in the implementation of the key recommendations made by the Commission on Future of Policing in Ireland. The witness added that the Division is focussing on the key recommendations only and has no knowledge why the issue of age in An Garda Síochána was not addressed by the Commission. Ms. C is a Physical Education Instructor at the Training College in Templemore since the late 1990’s. She attended the Hearing and provided details of the physical fitness assessment which Trainees undergo since 2007. The programme has two strands – first a physical fitness test (bleep test) and the second a physical competency test (which is an obstacle type scenario which simulates a struggle with a person). Trainees must pass both elements of the test. If a trainee fails the fitness test they are permitted to repeat, they must pass the second time, or their training is terminated. The witness added that trainees are tested several times during training and they must maintain the required fitness level. In response to a question from Counsel for the complainant the witness agreed that there would be benefits to An Garda Síochána if members fitness were tested after attestation.

4.9 Counsel for the respondent refers to Article 4(1) of the Framework Directive[19] and states that this Article is transposed into Irish law by section 37(2) of the Employment Equality Acts 1998-2004 which provides as follows –

“For the purposes of this Part a difference of treatment which is based on a characteristic related to any of the discriminatory grounds (except the gender ground) shall not constitute discrimination where, by reason of the particular occupational activities concerned or of the context in which they are carried out —

(a) the characteristic constitutes a genuine and determining occupational requirement, and

(b) the objective is legitimate and the requirement proportionate.

Counsel for the respondent also refers to section 37(3) of the Acts which provides as follows-

“It is an occupational requirement for employment in the Garda Síochána, prison service or any emergency service that persons employed therein are fully competent and available to undertake, and fully capable of undertaking, the range of functions that they may be called upon to perform so that the operational capacity of the Garda Síochána or the service concerned may be preserved.”

4.10 Counsel submits that the possession of a high level of physical capacities is a characteristic related to age; that it constitutes a genuine and determining occupational requirement for carrying out the role of a member of An Garda Síochána; that the objective of ensuring the proper functioning of An Garda Síochána is proportionate to that objective and that the age of thirty-five years set in the Regulations falls with the Minister’s margin of appreciation in making those Regulations. Counsel argues that the Commission should show significant deference to the Minister and the Commissioner of An Garda Síochána unless the age selected is manifestly disproportionate. Counsel notes that the Regulations were amended to increase upper age from twenty-six years to thirty-five years in the Garda Síochána (Admissions and Appointments) (Amendment) Regulations 2004[20] - the lower age having been prescribed in the previous Regulations. Counsel further submits that An Garda Síochána is unique in that it is a single unified police force. Members are generally unarmed. Section 7 of the Garda Síochána Act 2005 sets out the wide range of areas An Garda Síochána is required to provide policing to. Counsel submits that it therefore forms an integral part of the State security services and that the need to provide these services is constant. Consequently, the respondent requires a constant flow of members who are trained and competent to perform all duties, including the significant physical demands placed on a member in discharging those tasks, to provide it with the flexibility to enable it deploy members in response to the ever-changing needs and demands of policing in the jurisdiction.

4.11 Counsel for the respondent refers to Article 6 of the Framework Directive[21] Framework and in particular paragraph (1)(c) of same provides that differences of treatment which might objectively justify departure from the principle of equal treatment includes, among others –

“(c) the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.”

Counsel states that this Article is transposed into Irish law by section 34(5) of the Employment Equality Acts 1998-2004 as follows –

(5) Without prejudice to the generality of subsection (3), it shall not constitute discrimination on the age ground to set, in relation to any job, a maximum age for recruitment which takes account of—

(a) any cost or period of time involved in training a recruit to a standard at which the recruit will be effective in that job, and

(b) the need for there to be a reasonable period of time prior to retirement age during which the recruit will be effective in that job.

Counsel submits that financial considerations are relevant and should be considered in the overall assessment of objective justification as required by section 34 of the Acts. He adds that the cost of providing training to those admitted as trainees is substantial. The respondent is entitled to a return on this investment and the trainee must serve for a significant time before that outlay is recouped. Counsel submits that there is a legitimate employment policy and labour market objective in ensuring that members would, in the ordinary course, remain in service for a reasonably long period of time so that the State could recoup its investment in training. If members do not remain in service for a reasonably long period of time, there are additional recruitment and training costs associated with their replacement which would place a substantial additional burden on public finances. Counsel submits that such a scenario is encompassed by section 34(5) of the Acts and argues that this was a factor taken into consideration by the CJEU in both the Wolf[22]and Sorendo[23] cases.

4.12 Counsel states that the nature and maximum recruitment ages that are justifiable under Articles 4(1) and 6(1) of the Framework Directive[24] have been considered in a number of judgements of the CJEU, beginning with the landmark Decision in Wolf v Stadt Frankfurt am Main[25] and more recently in Sorondo v Academia Vasca de Policia y Emergencias [26]. He adds that the judgements are centred on recruitment for the emergency services and are therefore highly instructive for the instant case. Counsel states that the Wolf[27]concerned the operation of a maximum recruitment age for roles in the fire service in Frankfurt. Counsel submits that the CJEU set out a test for determining whether a difference based on age in national legislation is justified as an occupational requirement under Article 4(1) of the Framework Directive[28] as follows –

(i) the objective pursued must be a legitimate aim,

(ii) the characteristic required must constitute a genuine and determining occupational requirement for the occupation activities in question,

(iii) the characteristic must be age related,

(iv) the requirement must be proportionate.

4.13 Counsel submits that the aim in Wolf[29]was to guarantee the operational capacity and proper functioning of the fire service and the CJEU accepted this was legitimate in terms of Article 4(1). Counsel further submits that the legitimate aim in the instant case is to ensure the ongoing and proper functioning and operation of An Garda Síochána and the respondent has met that limb of the test. Counsel adds the CJEU accepted that the nature of the duties in Wolf[30]- fighting fires and rescuing people – involves high levels of physical activity and held that the “possession of especially high physical capacities may be regarded as a genuine and determining occupational requirement”. Counsel submits that the nature of the role in An Garda Síochána involves high levels of physical activity, that this characteristic is a genuine and determining occupational requirement, that the finding of the CJEU applies in the instant case and that the respondent has satisfied the second limb of the test. Counsel adds that the CJEU accepted the arguments and supporting data advanced by the German Government that respiratory capacity, musculature and endurance diminish as an individual grows older. Counsel submits that the characteristic of possession of a high level of physical capacity is a characteristic related to age and notes that this position had previously been accepted by the Equality Tribunal in Saunders v CHC Ireland Ltd [31]. Counsel adds the CJEU was satisfied that “the need to possess full physical capacity to carry on the occupation of a person in the intermediate career of the fire service is related to the age of persons in that career”. It is submitted that the circumstances in the instant case is analogous with those in the Frankfurt Fire Service and that the respondent has met limb three of the test.

4.14 Counsel states that the CJEU held what must be examined under the fourth limb of the test - proportionality- is “whether that limit is appropriate for achieving the objective pursued and does not go beyond what is necessary to achieve it”. The CJEU was satisfied that the national legislation at issue in Wolf[32]setting the maximum recruitment age of 30 years was proportionate commenting as follows - “To ensure the efficient functioning of the intermediate career in the fire service, it may be considered necessary for the majority of officials in that career to be able to perform physically demanding tasks, an hence for them to be younger than 45 or 50. Moreover the assignment of officials older than 45 or 50 to duties which are less physically demanding requires them to be replaced by younger officials….. Recruitment at an older age would have the consequence that too large a number of officials would not be assigned to the most physically demanding duties.” Counsel notes that the justification advanced in Wolf[33]was accepted by the Equality Tribunal in Saunders v CHC Ireland Ltd [34] and submits that the circumstances of the instant case that the respondent had demonstrated its actions of applying an upper age limit for recruitment to An Garda Síochána as proportionate.

4.15 Counsel submits that Articles 4(1) and 6(1) of the Framework Directive[35] and the question of whether a maximum recruitment age in police forces was justified was considered by the CJEU in two Spanish cases -the first finding that a maximum recruitment age of thirty years was not justified for local police and the second finding that an upper age limit of thirty-five years for recruitment to the police force of the Basque Country was justified. Counsel refers to the first of these cases Vital Perez v Ayuntamiento De Oviedo[36]. Counsel states that the CJEU reiterated its judgement in Wolf[37]but held that the age limit of thirty years was not proportionate in the circumstances. Counsel adds that the crucially the CJEU differentiated the tasks required of the local police force in the Ayuntamiento de Oviedo and held that they were not comparable to those in Wolf[38]. The CJEU noted that in discharging the role required of them, members of the local police force did not require the high level of physical capacities required of the fire service in Wolf[39]. Counsel submits that the duties required of members of An Garda Síochána are significantly different to those at issue in Vital Perez[40]. Counsel states that having concluded that the age limit in Vital Perez[41] was disproportionate in terms of Article 4(1) of the Framework Directive[42] , the CJEU went on to consider whether it could be justified under Article 6(1). The Court noted that (i) the age limit operated was based on the training requirements of the post and the need for a reasonable period of employment retirement to another post and (ii) those objectives are expressly mentioned at Article 6(1). The Court further noted that no evidence had been submitted by the parties to demonstrate that the age limit was appropriate and necessary to achieve the objective of ensuring the training of the officers concerned. Finally, the Court noted that the age of retirement in the local police force was 65 and held that the fixing of a maximum recruitment age of thirty years could not be considered necessary in order to ensure that those officers had a reasonable period of employment before retirement for the purposes of Article 6(1)(c) of the Framework Directive[43]

4.16 Counsel submits that the findings of the CJEU in Vital Perez[44] can be contrasted to the judgement of that Court in in Sorondov Academia Vasca de Policia y Emergencias[45] where the measure at issue was the upper age limit of thirty-five years for recruitment to the Autonomous Community of the Basque Region. Counsel states that in considering whether the recruitment age was justified in terms of Article 4(1) of the Framework Directive[46] the Court once again held that “it is not the ground on which the difference in treatment is based but a characteristic related to that ground which must constitute a genuine and determining occupational requirement”[47]. Counsel refers to paragraphs 34-35 of the judgement where the Court decided that “The possession of particular physical capacities is one characteristic relating to age and the duties relating to protection of people and property, the arrest and guarding of offenders and preventive patrolling may require the use of physical force …… It follows that the possession of particular physical capacities in order to be able to perform the three essential duties of the police of the Autonomous Community of the Basque Country described in Article 26(1) of Law 4/1992, namely ensuring the protection of people and property, ensuring that each individual can freely exercise his or her rights and freedoms, and ensuring the safety of citizens, may be considered to be a genuine and determining occupational requirement, within the meaning of Article 4(1)”. Counsel also refers to the Court’s comments at paragraph 46 of the judgement as follows – “the duties incumbent on the lowest rank of police officers of the Autonomous Community of the Basque Country include tasks that are physically demanding. The Academy has also argued that the age at which a police officer of the Autonomous Community of the Basque Country is recruited determines the length of time over which he is capable of performing such tasks. A police officer recruited at the age of 34, when he will, it should be added, have to undergo training over a period of around two years, will be suitable for assignment to those tasks for a maximum period of 19 years, that is, until he reaches the age of 55. That being the case, recruitment at a higher age would jeopardise the possibility of assigning a sufficient number of agents to the most physically demanding tasks. Likewise, such recruitment would mean that officers thus recruited could not be assigned for a sufficiently long period to those tasks.”. Counsel submits that the Court drew a distinction between the role/tasks of local police and those associated with a state or national police force. He adds that An Garda Síochána are akin to the Basque Police Force as it is the sole and exclusive national police force in Ireland with responsibility for all policing functions. If An Garda Síochána was unable to exercise these duties, it would have serious consequences for the maintenance of public order and in some cases, national security. Counsel submits that the particular capacities required of each emergency service are crucial in determining whether an age limit is justified and argues that the respondent has discharged the burden required of it to show that the upper age limit of thirty-five years for recruitment to An Garda Síochána is objectively justified in terms of Articles 4 and/or Article 6 of the Framework Directive[48].

4.17 Finally,Counsel submits that the choice of age limit – thirty-five years – strikes an appropriate balance between ensuring a wide window for admission to An Garda Síochána, with admission possible over a seventeen year period, and ensuring that all members are able to pursue their career over a sufficiently long period to ensure that they can retire with full, or near-to-full, pensions entitlements and at an age that is appropriate having regard to the demanding nature of the work.

4.18 In conclusion, Counsel for the respondent submits that the age limit for admission as a Trainee to An Garda Síochána as set out in the Regulations - Garda Síochána (Admissions and Appointments) (Amendment) Regulations 2004[49] is justified under (i) Article 4 (1) of the Framework Directive[50] and section 37 of the Employment Equality 1998-2004 and/or (ii) Article 6(1) of the Framework Directive[51]and section 34(5) of the Employment Equality Acts 1998-2004.

CONCLUSIONS OF ADJUDICATION OFFICER/EQUALITY OFFICER

5.1 The issue for decision by me are whether or not the respondents discriminated against the complainant on grounds of age, in terms of section 6(2) of the Employment Equality Acts, 1998-2004 and contrary to section 8 of those Acts when the Public Appointments Service declined to progress his application, after the initial stage, in respect of a Competition for Selection of Garda Trainees in An Garda Síochána which it conducted in October 2007, in circumstances where it was required to conduct the competition in accordance with the instruction of the Commissioner of An Garda Siochána, in particular the application of Regulations made by the Minister for Justice, Equality and Law Reform which prescribed an upper age limit of eligibility for the competition. In reaching my decision on this matter I have taken into account all of the oral and written arguments made by both parties. This Decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 of the Workplace Relations Act 2015.

5.2 As one of the complaintsconcerns an allegation of less favourable treatment by the Commissioner of An Garda Síochána the complainant must, in the first instance, comply with the provisions of section 77(7) of the Employment Equality Acts 1998-2004 and refer the matter to the Commissioner. The complainant made such a reference by letter dated 23 October 2007 advising the Commissioner of his opinion and that he intended to pursue the matter to the Equality Tribunal in due course. The Commissioner replied on 31 October 2007. I have reviewed this correspondence and I am satisfied that it complies with the requirements of section 77(7) of the Acts. The complainant was not satisfied with the response he received. Section 77(8) of the Acts provides that he is permitted to refer a complaint to the Equality Tribunal in those circumstances and he exercised his right to do so – the complaint was received by the Tribunal on 13 November 2007. In light of the foregoing I am satisfied that the complaint against the Garda Commissioner is properly before me for investigation.

5.3 Section 85A of the Employment Equality Acts 1998- 2004 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by, or on behalf of, a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of the Tribunal, the Workplace Relations Commission and the Labour Court and it requires the complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainantdoes not discharge the initial probative burden required of him his case cannot succeed.

5.4 Counsel for the complainant submits that the complainant has established a prima facie case of discrimination on grounds of age contrary to the Employment Equality Acts 1998-2004. Counsel for the respondent submits that the application of the age restriction does not amount to discrimination on grounds of age contrary to the Acts but does not seem to contend that the complainant has discharged the initial probative burden required of him. The complainant furnished correspondence from PAS which clearly states that his application cannot progress to the next stage of the selection process because he was over the age of 35 years on the date he submitted his application for the Open Competition for Selection of Garda Trainees in An Garda Síochána. A similar response was received by him on behalf of the Garda Commissioner. In the course of the Hearing Mr. A confirmed that any application form submitted to PAS for the impugned competition which indicated that the applicant fell outside of the ages of 18-35 years on the relevant date would be rejected and would not proceed to the latter stages of the competition. He confirmed that the complainant’s application was treated in this fashion and that his name was not passed on to the Department of Justice, Equality and Law Reform as suitable for progression to the remaining stages. Ms. D, an official in the Garda Recruitment Division of the Department confirmed that the complainant’s name was not on the list furnished by PAS for further processing as part of the competition. Having carefully considered all of the written and oral evidence adduced by the parties I am satisfied that the complainant was excluded from proceeding to the next stage of the process solely because of his age. It is at this point that the less favourable treatment of him crystallised. The possibility that he may have not succeeded at any subsequent element of the selection process is irrelevant. The fact is that he was denied that opportunity on the sole basis that he was over the upper age limit which applied for eligibility to the competition. In Donnellan v The Minister for Justice, Equality and Law Reform[i][52]McKechnie J held that the imposition of a mandatory retirement age is prima facie discrimination on grounds of age in terms of the Framework Directive[53] - which is transposed into Irish law by the Employment Equality Acts 1998-2004. The view expressed by McKechnie J must equally apply to the operation of a mandatory upper recruitment age. I therefore find that the complainant has established a prima facie case of discrimination on grounds of age and the burden shifts to the respondent to rebut the inference raised.

5.5 Counsel for the complainant submits that each of the named respondents shares equal liability for the alleged discrimination. The scenario in the instant case has been examined by the Equality Tribunal, the Workplace Relations Commission, the Labour Court and the Superior Courts previously – particularly in the context of the relationship between a teacher and a school and the Department of Education and Skills in terms of employment equality legislation. In all cases the outcome was that liability rested only with one of the parties identified, although the outcome had to be determined on a case by case basis. Section 77 of the Employment Equality Act 1998-2004 defines respondent as follows –

“respondent” means the person who is alleged to have discriminated against the complainant …..”

I am of the view that the approach adopted previously by the Tribunal and the Labour Court is appropriate in the instant case. Having considered the evidence adduced by the parties I am satisfied that the recruitment competition was conducted by PAS as an agent for the Commissioner of An Garda Síochána. The conditions of service of a Trainee at that time were governed by a contract entered into between the Trainee and the Garda Commissioner. I am satisfied that this amounts to a “contract of employment” in terms of section 2 of the Employment Equality Acts 1998-2004 and consequently the Garda Commissioner is an “employer” for the purposes of the Acts. The Minister is the paymaster and has a policy role, including determination of the overall number of Gardaí engaged at any time and the standards which apply for recruitment to, and membership of, the Gardaí. In light of the foregoing I find that the Commissioner of An Garda Síochána is the correct respondent for the purposes of these proceedings.

5.6 Counsel for the respondent argues that the impugned selection process comprised several factors, of which the age of the candidates was one. Counsel adds that the complainant would have had to complete the other components successfully before been assigned as a full-time member of An Garda Síochána and one can only speculate what that outcome may have been. Counsel is correct in his comments however, the fact remains that the complainant was denied the opportunity to do so because of the Regulations made by the Minister for Justice, Equality and Law Reform which set an upper recruitment age of thirty-five years. Counsel argues that the Commission should show significant deference to the Minister and the Commissioner of An Garda Síochána unless the age selected in manifestly disproportionate. I cannot accept Counsel’s arguments. Having found that the complainant has discharged the probative requirements under section 85A of the Employment Equality Acts 1998-2004, I am satisfied that the issue I must now decide is whether the Regulations made by the Minister for Justice, Equality and Law Reform - Garda Síochána (Admissions and Appointments) (Amendment) Regulations 2004[54] - and upon which the respondent relies on - amount to objective justification in terms of Articles 4 and 6 of the Framework Directive[55] and the relevant provisions of the Acts. I find no basis, in making that determination, which requires me to show deference to the Minister and I am of the view that Counsel is misguided in his submission that the age limit contained in those Regulations must be manifestly disproportionate. The test set out by the CJEU in this regard is that “whether that limit is appropriate for achieving the objective pursued and does not go beyond what is necessary to achieve it”[56].

5.7 I propose to examine the arguments advanced by the parties on whether the Regulations made by the Minister, which the respondent submits amount to objective justification, in terms of Article 4(1) of the Framework Directive[57], in the first instance. This Article is transposed into Irish law by section 37(2) of the Employment Equality Acts 1998-2004 which provides as follows –

(a) the characteristic constitutes a genuine and determining occupational requirement, and

(b) the objective is legitimate and the requirement proportionate.

Counsel for both parties agree that the CJEU set out a test for determining whether a difference based on age in national legislation is justified as an occupational requirement under Article 4(1) of the Framework Directive[58] in its judgement the Wolf[59]case and I propose to examine the matter against that test. The test set out by the CJEU is as follows –

(i) the objective pursued must be a legitimate aim,

(ii) the characteristic required must constitute a genuine and determining occupational requirement for the occupation activities in question,

(iii) the characteristic must be age related,

(iv) the requirement must be proportionate.

5.8 Counsel for the respondent submits that the legitimate aim in the instant case is to ensure the ongoing and proper functioning and operation of An Garda Síochána. Counsel for the complainant contends that the respondent has failed to support this initial limb of the test. In Wolf[60] the CJEU accepted that the operational capacity and proper functioning of the fire service was a legitimate in terms of Article 4(1). It made a similar finding in terms of the local police force in Vital Perez[61]. Whilst the CJEU did not make an express finding on the issue in the Sorondo case[62] it is clear that it must have satisfied itself of that. Consequently, I am satisfied that the objective advanced by the respondent - to ensure the ongoing and proper functioning and operation of An Garda Síochána – is a legitimate aim in terms of Article 4(1) of the Framework Directive[63]and section 37(2) of the Employment Equality Acts 1998-2004. The second limb of the test provides that the characteristic required must constitute a genuine and determining occupational requirement for the occupation activities in question Counsel for the respondent submits that the nature of the role in An Garda Síochána involves high levels of physical activity, that this characteristic is a genuine and determining occupational requirement and relies on the judgement in Wolf[64] in this regard. Counsel for the complainant accepts the arguments of the respondent on this point. However, in the interests of completeness I would like to say that I would have accepted the arguments of the respondent on this point had the issue been disputed.

5.9 The third limb of the testrequires that the characteristic – high levels of physical activity - must be age related. Counsel for the respondent submits that the CJEU accepted the arguments and supporting data advanced by the German Government that respiratory capacity, musculature and endurance diminish as an individual grows older and held that “the need to possess full physical capacity to carry on the occupation of a person in the intermediate career of the fire service is related to the age of persons in that career”.Counsel for the respondent submits that the characteristic of possession of a high level of physical capacity is a characteristic related to age given the physically demanding tasks which a member of An Garda Síochána must undertake whilst on duty the findings of the CJEU apply to the instant case. Counsel notes that this position had previously been accepted by the Equality Tribunal in Saunders v CHC Ireland Ltd [65]. Counsel for the complainant, whilst at first glance appears to accept this proposition, argues that the professional medical evidence adduced in the course of the Hearing states that the effects of aging can be delayed by engaging in physical and lifestyle change. A significant body of medical evidence was provided by both parties in the course of my investigation, in particular the direct evidence of Dr. Murphy-Griffin and Professor Moyna. It is noteworthy that both witnesses agree that a person’s physiological function deteriorates as a person gets older. The CJEU held in Wolf[66] that lung function, musculature and endurance diminish as a person gets older. In Sorondo[67], the Court held that “police work is both physiologically and psychologically demanding which over time leads to a deterioration of adaptation mechanisms and an increase in chronic diseases that cause the functional age to be higher than in other professions” and that “from the age of 40 years there is an age associated decrease in resilience to stress and a subsequent inability to perform another task for a variable period of time.”. Having carefully considered the matter, I am satisfied that the characteristic of possession of a high level of physical capacity is a characteristic related to age and that the third limb of the test is satisfied.

5.10 The final limb of the test is that the measure adopted is proportionate. It is well established that this requires an assessment of whether the measure adopted is appropriate for achieving the objective pursued and does not go beyond what is necessary to achieve it. The legitimate aim pursued by the respondent is to ensure the ongoing and proper functioning and operation of An Garda Síochána. Counsel for the respondent submits a number of factors which should be examined in the context of assessment. The first of these is that An Garda Síochána is unique in that it is a single unified police force. Members are generally unarmed and are required to perform a wide range of tasks across a mumber of areas that An Garda Síochána is required to provide policing to. Counsel submits that it therefore forms an integral part of the State security services and that the need to provide these services is constant. In this regard Counsel contends that An Garda Síochána is akin to the fire service in the Wolf[68]case and the Basque police force in Sorondo[69]

5.11 I accept the respondent’s arguments on this point. I further accept that in order to perform these tasks -many of which are physically demanding- the respondent requires a constant flow of members who are trained and competent, and physically capable of performing these range of duties. Counsel for the respondent contends that without the upper age limit there would be large numbers unable to perform duties requiring high levels of physical exertion, which could have serious consequences for the maintenance of public order and in some cases, national security and I accept the arguments of the respondent that any restriction on the pool of suitable Gardaí would have the consequences indicated. Counsel for the respondent submits that the CJEU accepted that the operation of an upper recruitment age was a proportionate response in both Wolf[70]and Sorondo[71]in pursuing the legitimate aim of ensuing the ongoing and proper functioning and operation of the emergency services at the centre of those cases. Counsel for the complainant submits that the circumstances in Wolf[72]was for a limited period and that older staff carried out other duties. Moreover, the CJEU was provided with scientific data in support of its argument. No such data was submitted or limitation applies in the instant case. Counsel further notes that in Sorondo [73] the national measure in issue provided for a transfer to other less physical duties when a person reached the age of fifty-six years, several years before retirement. Consequently, there were mechanisms to deal with older employees doing physical roles which are not available in the instant case. Counsel for the complainant notes that no such moderated duties are available in the instant case. It is submitted that these differences distinguish the findings of the CJEU in the two cases and impact on the respondent’s arguments of proportionality.

5.12 It is clear that the scientific data in Wolf[74] satisfied the CJEU to the extent that it held that a person’s lung function, musculature and endurance diminish as a person gets older. This proposition was endorsed by both medical experts who attended the Hearing. However, this endorsement is not absolute. Both witnesses were of the view that the effects of aging and the rate of decline in physiological function can be delayed by engaging in physical and lifestyle change. The respondent did not furnish data on the fitness levels of the members of An Garda Síochana in 2007. This is relevant because it is the time the alleged discriminatory treatment occurred and as such the circumstances which prevailed at that time are those which must be assessed in determining objective justification. I suspect that no data was furnished because none exists. This is because whilst at that time trainees were required to attain a certain level of physical fitness during training, they were not tested for fitness level after that. Consequently, the respondent whilst relying on the statement set out in Wolf[75]offered no data to support that the circumstances in Wolf[76]applied to An Garda Síochána in 2007. Counsel for the complainant argued the respondent’s submission on this point was a generalisation and I concur with that. It has been a consistent approach in cases under the employment equality legislation previously, as held by the Labour Court in Nevins and Others v Portroe Stevedores[77], that “since the facts necessary to prove an explanation would usually be in the possession of the respondent, a tribunal should normally expect cogent evidence to discharge that burden.” This is all the more relevant as the matter in issue involves a departure from the principles of equal treatment. Counsel for the complainant submits therefore that any derogation should be construed narrowly, and I agree. Having carefully considered the above, I am not satisfied that the respondent has discharged the burden required of it as regards this element of its argument that its actions are proportionate.

5.13 Counsel for the respondent seeks to rely on the Decision of the Equality Tribunal in Saunders v CHC Ireland Ltd [78] in terms of the argument that the possession of a high level of physical capacity is a characteristic related to age which amounts to objective justification. Whilst this argument is technically correct the facts of that case differ significantly from the matter in issue. Firstly, it was a case involving retirement and the respondent in that case produced evidence that the complainant underwent fitness and other technical training on a regular basis. Secondly, the complainant was fully aware of the retirement age, which was contained in the contract of employment. Finally, the retirement age at issue was fifty-five, which is twenty years greater than the age limit in issue in the instant case. In Saunders[79]the complainant had been performing a physically demanding job without issue at an age much greater than thirty-five years. Having regard to the foregoing I find that Saunders[80]does not avail the respondent.

5.14 The respondent states that all members of An Garda Síochána must be capable of responding to any call when on duty. It further states that if the upper recruitment age is not operated the respondent would have a significant number of members who would be unable to carry out the more physically demanding tasks associated with the role. Counsel for the complainant submits this is a generalisation and I agree with her. The respondent offered no evidence in support of this because as stated above after attestation members are not subjected to any physical fitness tests. I note the EU Commission’s comments in its Paper “Age Discrimination and European Law” that “the use of such age limits will have to be shown to be clearly necessary; even a pressing legitimate such as public safety cannot justify the sweeping use of age limits where individual assessment is possible.”[81]. I am satisfied that the individual assessment of the members is possible in the instant case and that it would not amount to a significant imposition on the respondent, either from a logistical or financial perspective. Indeed, the fact that the respondent does not conduct any test of the physical fitness of members after attestation could have the impact of undermining its stated legitimate aim of ensuring the ongoing and proper functioning and operation of An Garda Síochána. As argued by Counsel for the complainant this test could be accommodated by regular physical testing when conducting the technique training every two years. In light of the foregoing the respondent has not demonstrated that there would be a significant number of members unable to perform the more physically demanding duties if the upper age limit was not to apply.

5.15 Counsel for the complainant notes that the Minister for Justice, Equality and Law Reform has at his/her disposal, powers under section 37(4) of the Employment Equality Acts 1998-2004 and submits that this is a more appropriate mechanism to deal with any operational issues which emerge and are associated with the age profile of An Garda Síochána. I have considered this submission and I am satisfied that this provision gives the Minister an unfettered right to order that the provision applies to any individual competition for appointment to An Garda Síochána and the ground of “age” in terms of the “discriminatory grounds” prescribed at section 6 of the Acts shall not apply to that competition. Consequently, I agree with the argument advanced by Counsel for the complainant in this regard.

5.16 In light of my comments in the preceding paragraphs I find that the operation of the upper age limit of 35 years is not proportionate in terms of Article 4(1) of the Framework Directive[82] and section 37(2) of the Employment Equality Acts 1998-2004. I find that it goes beyond what is appropriate and necessary and that the objective pursued can be achieved by other means. I shall now examine whether the Regulations made by the Minister, which the respondent submits amount to objective justification in terms of Article 6(1) of the Framework Directive[83] Counsel for the respondent submits that paragraph (1)(c) of that Article provides that differences of treatment which might objectively justify departure from the principle of equal treatment includes, among others –

“(c) the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.”

This Article is transposed into Irish law by section 34(5) of the Employment Equality Acts 1998-2004 as follows –

(a) any cost or period of time involved in training a recruit to a standard at which the recruit will be effective in that job, and

(b) the need for there to be a reasonable period of time prior to retirement age during which the recruit will be effective in that job.

5.17 Counsel for the respondentstates that the Training Programme undertaken by trainees/probationers over a two- year period results in the award of a BA in Applied Policing. Inspector Z added that the total cost to the respondent for all issues connected with the two-year programme is approximately €73,000. Counsel submits that the cost of providing training to those admitted as trainees is substantial and that the respondent is entitled to a return on this investment and the trainee must serve for a significant time before that outlay is recouped. Counsel submits that there is a legitimate employment policy and labour market objective in ensuring that members would, in the ordinary course, remain in service for a reasonably long period of time so that the State could recoup its investment in training. If members do not remain is service for a reasonably long period of time, there are additional recruitment and training costs associated with their replacement which would place a substantial additional burden on public finances. Counsel for the complainant rejects the arguments advanced on behalf of the respondent in respect of the return on investment and argues that the same return on investment can be achieved without the operation of the upper age limit for recruitment. Counsel argues that a person recruited for example at forty years of age and retiring when s/he is sixty years’ old would satisfy the return on investment required, the same as a person recruited at thirty-five years’ old and retiring at fifty-five years of age. Counsel concludes by arguing that cost/economic factors cannot, in isolation, justify discrimination.

5.18 TheTraining Programme referred to by the respondent in the previous paragraph and the associated costs was not in place in 2007. No costs associated with the actual training regime operated at that time were furnished. Consequently, the respondent has failed to discharge the burden required of it. I would say however, that there is some validity to the arguments advanced by Counsel for the complainant that a return on investment can be achieved by the respondent in a fashion other than recruiting Gardaí before the age of thirty-five years. I am satisfied from the evidence adduced by the parties in the course of my investigation that entrants are predominately in their twenties and that most members have retired by the age of fifty-five. In light of the foregoing the respondent has failed to discharge the burden of proof required of it to avail of the exclusions provided by Article 6(1) of the Framework Directive[84] and section 34(5) of the Employment Equality Acts 1998-2004.

5.19 The complainant contends that PAS was acting as an agent for the respondent when discharging its functions as regards the competition for appointment as a Garda Trainee in 2007. Counsel for the complainant refers to section 15 of the Employment Equality Act 1998-2004 in this regard. Subsection 2 of that section provides that anything done by a person acting as an agent for another person, with the authority of that other person, shall be treated for the purposes of the Acts, to have been done by that other person. The complainant referred a complainant against PAS and in my decision on that referral I have found that whilst the complainant established a prima facie case of discrimination on grounds of age against PAS, it is entitled to avail of protections under section 11 of the Employment Equality Acts 1998-2004 and avoid liability for its actions. Section 15 of the Acts provides that if the actions of the agent are found to be contrary to the Acts then the person who engages that agent to perform those functions is vicariously liable for those actions, notwithstanding that person did not engage in the unlawful activity himself/herself. I am satisfied that PAS was acting as an agent for the first named respondent and that it is vicariously liable for the actions of PAS which are contrary to the Acts in accordance with section 15 of the Acts.

DECISION OF THE EQUALITY OFFICER

6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2015 I find as follows:

(i) the complainant has established a prima facie case of discrimination on grounds of age in terms of section 6(2) of the Employment Equality Acts 1998-2004 and contrary to section 8 of those Acts when his application for selection as a Trainee in An Garda Siochána was rejected at the initial stages of the competition by PAS, who was acting as an agent for the first named respondent, because he was over 35 years of age in October 2007

(ii) the respondent has failed to discharge the burden of proof required to demonstrate that the Regulations made by the Minister for Justice, Equality and Reform - the Garda Síochána (Admissions and Appointments) (Amendment) Regulations 2004 which set an upper age limit of thirty-five years for eligibility for recruitment from the competition in 2007, is objectively justified in terms of the Articles 4 and/or 6 of the Framework Directive and the relevant provisions of sections 34 and 37 of the Employment Equality Acts 1998-2004

and the complainant is entitled to succeed.

6.2 Counsel for the complainant states that the remedy sought by the complainant is to be permitted to have his application for selection considered and not regarded on the sole basis of his age. It is unclear when the next competition for Trainees in An Garda Síochána will take place. Moreover, the complainant is now at an age which would significantly reduce his ability provide service for a reasonable period of time so that the State could recoup its investment in training, always assuming that he would be successful in all aspects of the selection process and successfully complete the training period, which is now two years. Consequently, I consider compensation to be the most appropriate remedy in the circumstances. In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2008 I order that the respondent pay the complainant the sum of €12,700 by way of compensation for the distress suffered by him as a result of this discrimination. This is the maximum award permitted by the provisions of the Acts which were in force at the time. This award is not in the form of remuneration and is therefore no subject to the PAYE/PRSI Code.

________________________________

Vivian Jackson

Adjudication Officer/Equality Officer

5 October 2020

FOOTNOTES:

[1] SI 749/2004

[2] Council Directive 2000/78/EC of 27 November 2000 Establishing a general framework for equal treatment in employment and occupation.

[3] Minister for Justice & Equality v Workplace Relations Commission (Case 376/17)

[4] SI 749/2004

[5] SI 749/2004

[6] Council Directive 2000/78/EC of 20 November 2000 Establishing a general framework for equal treatment in employment and occupation.

[7] Council Directive 2000/78/EC of 20 November 2000 Establishing a general framework for equal treatment in employment and occupation.

[8] Ibid

[9] Ibid.

[10] Case C-229/08

[11] Ibid

[12] Case C-258/15

[13] Pages 34 and 35

[14] Ibid.

[15] Page 67

[16] Council Directive 2000/78/EC of 20 November 2000 Establishing a general framework for equal treatment in employment and occupation.

[17] Case C-229/08

[18] Case C-258/15

[19] Council Directive 2000/78/EC of 20 November 2000 Establishing a general framework for equal treatment in employment and occupation.

[20] SI 749/2004

[21] Council Directive 2000/78/EC of 20 November 2000 Establishing a general framework for equal treatment in employment and occupation.

[22] Case C-229/08

[23] Case C-258/15

[24] Council Directive 2000/78/EC of 20 November 2000 Establishing a general framework for equal treatment in employment and occupation.

[25] Case C-229/08

[26] Case C-258/15

[27] Case C-229/08

[28] Council Directive 2000/78/EC of 20 November 2000 Establishing a general framework for equal treatment in employment and occupation.

[29] Case C-229/08

[30] Ibid.

[31] DEC-E2011-142

[32] Case C-229/08

[33] Ibid.

[34] DEC-E2011-142

[35] Council Directive 2000/78/EC of 20 November 2000 Establishing a general framework for equal treatment in employment and occupation.

[36] Case C416/13

[37] Case C-229/08

[38] Ibid.

[39] Ibid

[40] Case C-416/13

[41] Ibid

[42] Council Directive 2000/78/EC of 20 November 2000 Establishing a general framework for equal treatment in employment and occupation.

[43] Ibid

[44] Case C- 416/13

[45] Case C-258/15

[46] Council Directive 2000/78/EC of 20 November 2000 Establishing a general framework for equal treatment in employment and occupation.

[47] Paragraph 33

[48] Council Directive 2000/78/EC of 20 November 2000 Establishing a general framework for equal treatment in employment and occupation.

[49] SI 749/2004

[50] Council Directive 2000/78/EC of 27 November 2000 Establishing a general framework for equal treatment in employment and occupation.

[51] Ibid

[52] [2008] IEHC 467

[53] Council Directive 2000/78/EC of 27 November 2000 Establishing a general framework for equal treatment in employment and occupation.

[54] SI 749/2004

[55] Council Directive 2000/78/EC of 27 November 2000 Establishing a general framework for equal treatment in employment and occupation.

[56] Wolf v Stadt Frankfurt am Main (paragraph 42)

[57] Council Directive 2000/78/EC of 27 November 2000 Establishing a general framework for equal treatment in employment and occupation.

[58] Ibid

[59] Case C-229/08

[60] Ibid

[61] Case C-416/13

[62] Case C-258/15

[63] Council Directive 2000/78/EC of 20 November 2000 Establishing a general framework for equal treatment in employment and occupation.

[64] Case C-229/08

[65] DEC-E2011-142

[66] Case C-229/08

[67] Case C-258/15

[68] Ibid

[69] Case C-258/15

[70] Case C-229/08

[71] Case C-258/15

[72] Case C-229/08

[73] Case C-258/15

[74] Case C-229/08

[75] Ibid

[76] Ibid

[77] EDA 051

[78] DEC-E2011-142

[79] Ibid

[80] Ibid

[81] Page 34/35

[82] Council Directive 2000/78/EC of 27 November 2000 Establishing a general framework for equal treatment in employment and occupation.

[83] Ibid.

[84] Council Directive 2000/78/EC of 27 November 2000 Establishing a general framework for equal treatment in employment and occupation.