DEC-E2020-006

EMPLOYMENT EQUALITY ACTS

DECISION NO.DEC-E2020-006

PARTIES

Michael Murphy

(represented by Kiwana Ennis BL, instructed by Irish Human Rights and Equality Commission)

-v-

Garda Commissioner & Minister for Justice & Equality

(represented by Oisin Quinn SC, Desmond Ryan BL, instructed by Chief State Solicitor’s Office)

File reference: EE/2008/148, EE/2008/149

Date of issue: 7 October 2020

Background to the Claim

1.1 The complainant referred a complaint to the Director of the Equality Tribunal under the Employment Equality Acts on 11th March 2008. At that juncture, the respondents objected to the hearing of this complaint together with a number of linked cases on the basis of jurisdictional issues. The matter was lodged with the Supreme Court which subsequently referred the matter to the European Court of Justice for a decision on the preliminary issue. The question concerning the jurisdiction of the WRC was given by the CJEU in January 2019 which gave jurisdiction to the WRC to hear the complaints. As confirmed by the CJEU in Minister for Justice v Workplace Relations Commission (C-378/17), the WRC is required to disapply any national measure that is contrary to EU law and accordingly the herein case was re-listed for hearing by the WRC.

On 2nd October 2019 in accordance with his powers under section 75 of the Employment Equality Acts, 1998 – 2015 the Director General delegated the case to me, Valerie Murtagh, an Equality Officer/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. As required by Section 79 (1) of the Acts and as part of my investigation, I proceeded to hold a hearing on the 20th and 21st January 2020.

1.2 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 84(3) of the Workplace Relations Act, 2015.

Dispute

2.1 The dispute concerns a claim by the complainant that he was discriminated against by the respondents on the grounds of age in relation to his retirement from An Garda Siochana.

Summary of the Respondents Case.

3.1 The complainant herein claims that he was discriminated against on the age ground in being required to retire at the age of 60 in accordance with the compulsory retirement age set out in the regulations pertaining to An Garda Síochána described in detail below. The complainant was obliged to retire from An Garda Síochána in 2008, being the year in which he attained the age of 60. The complainant held the rank of Chief Superintendent at the time of his retirement. He claims that this mandatory retirement age is unlawfully discriminatory, being less favourable treatment on the age ground contrary to the Employment Equality Act 1998 as amended and contrary to Article 2(2) of the Directive Council Directive 2000/78/EC.

3.2 Counsel submitted that varying retirement ages were set for members of An Garda Síochána of various ranks in Regulation 6 of the Garda Síochána (Retirement)(No. 2) Regulations 1951, S.I. No. 335/1951 (‘the 1951 Regulations’) in the following terms:

“The following provisions shall apply to future members of the Gárda Síochána in lieu of the existing provisions:

(a) subject to subparagraph (b) of this paragraph, every such member shall retire from the Gárda Síochána on attaining the age which is applicable to the rank in the Gárda Síochána for the time being held by such member, that is to say:

(i) in the case of a member holding any rank higher than the rank of chief superintendent—on attaining the age of sixty-five years, and

(ii) in the case of a member holding the rank of chief superintendent or of superintendent—on attaining the age of sixty years, and

(iii) in the case of a member below the rank of superintendent—on attaining the age of fifty-seven years,

(b) notwithstanding subparagraph (a) of this paragraph, if, but only if, the Commissioner is satisfied that it is in the interests of the efficiency of the Gárda Síochána that the age at which any such member would retire under the said subparagraph should be extended because of the possession by that member of some special qualification or experience, the Commissioner may, with the consent of the Minister, extend that age in the case of that member by such period, not exceeding five years, as the Commissioner shall determine”.

3.3 In respect of the rank of Commissioner, the age was lowered from 65 to the age of 60 (or the Commissioner completing a period of seven years in that rank, whichever was the earlier) by the Garda Síochána (Retirement) Regulations 1990, S.I. No. 318/1990. The 1990 Regulations were replaced by the Garda Síochána Act 2005 (Retirement) Regulations 2018, S.I. No. 28/2018, which require the Commissioner to retire after five years’ service in that rank or upon reaching the age of 60, whichever is the earlier.

3.4 In respect of members of the rank of Assistant Commissioner or Deputy Commissioner, the age was lowered from 65 to the age of 60 by the Garda Síochána (Retirement) Regulations 1996, S.I. No. 16/1996 (‘the 1996 Regulations’). The Public Service Superannuation (Miscellaneous Provisions) Act 2004 created a uniform retirement age of 60 (with the possibility of being retired at 55) for new entrants to An Garda Síochána. In respect of existing members below the rank of Superintendent, the age was raised from 57 to 60 by the Garda Síochána (Retirement) (No. 2) Regulations 2006, S.I. No. 686/2006 (‘the 2006 Regulations’).

3.5 Counsel for the respondents submitted that the background to these 2006 Regulations was that the then Tánaiste and Minister for Justice sought Government approval for an increase in the retirement age of members of ranks in the Garda Síochána below the rank of Superintendent from 57 to 60 years. Prior to this change, the position was that under the relevant Garda Síochána Regulations, members of ranks in the Garda Síochána up to and including Inspector, who were recruited to An Garda Síochána prior to 1 April, 2004, were obliged to retire at 57 years of age. Members recruited after that date may serve until 60, subject to an annual check after the age of 55 on fitness to serve, in accordance with the provisions of the Public Service Superannuation (Miscellaneous Provisions) Act 2004.

3.6 In the context of discussions which the Tánaiste had with the Garda Associations in relation to the establishment of the Garda Reserve, he informed the Associations that he saw merit in considering an increase in the retirement age of pre-2004 members of Garda, Sergeant and Inspector ranks from 57 to 60 to facilitate the supervision and mentoring of reserve members by members of those ranks. The Tánaiste believed that the time was right to increase the retirement age for members of these ranks to 60 years, not only for that reason but as a measure to maximise Garda strength at this time. It was also the intention at the time for the Tánaiste to discuss this matter formally with the Garda Associations under the Garda Síochána Conciliation and Arbitration Scheme.

3.7 The combined effect of the above regulations and the 2004 Act is, broadly put, to set down a common retirement age of 60 for all members of An Garda Síochána.[1] The compulsory retirement age applied to the complainants has remained set at the age of 60 for members of their rank by virtue of the continued application of Regulation 6(a)(ii) of the 1951 Regulations, with the possibility of an extension of up to five years with the consent of the Minister for Justice.

3.8 The respondents submit that the compulsory retirement age provided for in the Regulations is objectively and reasonably justified by legitimate aims as elaborated on below and is appropriate and necessary to achieve these aims. Some examples of legitimate aims have been identified in the Industrial Relations Act (Code of Practice on Longer Working Declaration) Order of 2017, referred to at paragraph 117 of the complainants’ submissions. The Code of Practice sets out “best principles and practice to follow during the engagement of employers and employees in the run up to retirement.” The Code of Practice identifies the following examples of what constitutes legitimate aims by an employer:

“Intergenerational fairness (allowing younger workers to progress);

Motivation and dynamism through the increased prospect of promotion;

Health and safety (generally in more safety critical occupations);

Creation of a balanced age structure in the work force;

Personal and professional dignity (avoiding capability issues with older employees);
Succession planning.”

3.9 Counsel refers to the landmark decision of the ECJ in Félix Palacios de la Villa v Cortefiel Servicios SA Case C-411/05 [2007] ECR I-8531 where the Court found that legislation to allow compulsory retirement at age 65 could be objectively and reasonably justified “by a legitimate aim relating to employment policy in the labour market” where the means were “appropriate and necessary” for that purpose. In considering whether the measure was appropriate and necessary to achieve the legitimate aim identified, the Court emphasised the wide margin of appreciation afforded to Member States in this regard. Counsel for the respondents submitted that this case also indicates that the appropriateness of the means adopted will be in part assessed by consideration of whether or not the relevant employees who may be required to retire at a certain age have access to a retirement pension at that juncture.

3.10 Counsel submitted that the compatibility of a compulsory retirement age of 60 for members of An Garda Síochána with the Framework Directive has already been considered by the High Court in this jurisdiction. In Donnellan v Minister for Justice, Equality and Law Reform & others[2008] IEHC 467 (25 July 2008), the plaintiff was an Assistant Garda Commissioner who was retired from the force on reaching his 60th birthday, in accordance with the 1996 Regulations. By way of a plenary action, he sought declarations inter alia that the 1996 Regulations were (a) ultra vires the powers contained in the Police Forces Amalgamation Act 1925 by reason of unreasonableness or irrationality, and (b) incompatible with the Framework Directive.

3.11 In his judgment, McKechnie J rejected the argument that the age set in the Regulations represented unreasonableness on the part of the Minister for Justice such as to render the 1996 Regulation unreasonable. McKechnie J noted the contents of the Hayes Report, from May 2007, which reported that a systematic approach was needed to “succession planning” to prevent too many senior officers retiring at the same time, and in order to ensure that, through training and development, there was a sufficient pool of able and experienced officers to provide continuity in management and direction, and competition for promotion. Counsel for the respondents submitted that for present purposes, McKechnie J also found that the retirement age of 60 for the plaintiff Assistant Commissioner was objectively and reasonably justified by a legitimate aim and was therefore compatible with Article 6 of the Framework Directive

.3.12 At the time when the decision in Donnellan was delivered, section 34(4) had yet to be amended to expressly require that compulsory retirement ages be objective and reasonably justified. However, McKechnie J applied that requirement in any event and subjected the retirement age of 60 to an equivalent analysis including assessing the compatibility of the measure with the Framework Directive. Counsel for the respondents submitted that this means that the High Court has already considered the question of whether the compulsory retirement age of 60 for senior members of An Garda Síochána pursues a legitimate aim and is an appropriate and necessary means of achieving the aim pursued, albeit in respect of a rank above that of the complainant in the present proceedings. Counsel submitted that the Court had little difficulty in finding that both of those requirements was satisfied and that the measure was objectively justified and compatible with Article 6 of the Framework Directive.

3.13 Counsel submitted that it is also very helpful to the adjudication of these claims that the High Court’s analysis was conducted in 2008, the year in which the complainant was compulsorily retired from the Force, and is therefore extremely persuasive authority for the proposition that the retirement age applied to the complainant was objectively and reasonably justified for the purposes of section 34(4) EEA and Article 6 of the Framework Directive. Counsel submitted that McKechnie J accepted the aims pursued by the 1996 Regulations as legitimate and held that where multiple reasons are given for an early retirement age, it is enough if one or more amount to a legitimate aim. He noted that it was well-established that “where justification is sought, and multiple reasons are given, it will be enough that one or more of the justifications advanced, amount to a legitimate aim”.

3.14 Counsel submits that as set out in detail below, the need to create promotional opportunities at the upper ranks of the Force applies equally to these ranks as it did to the Assistant Commissioner and Deputy Commissioner ranks at issue in Donnellan. Further, the complainant was retired in 2008, i.e. in the same year as the plaintiff in Donnellan. The same features and age profile of the Force as were accepted in the High Court were in place at the time when the complainant’s claim was to be judged by the WRC in these proceedings. Counsel for the respondents submitted that relevant to his conclusion was the fact that individual assessment was possible under Regulation 6(b) of the 1951 Regulations. McKechnie J. held that the compulsory retirement age of 60 passed the proportionality test required by Article 6.

3.15 Counsel submitted that the reasoning of the High Court in Donnellan applies a fortiori in respect of the same compulsory retirement age applicable to the complainant, i.e. members holding the rank of Chief Superintendent and Superintendent. The same scope for individual assessment applies to these complainant as it did in the Donnellan case. The complainant wrote to the Commissioner seeking an extension under Regulation 6(b). The Commissioner formed the view that it was not necessary to invoke the provisions of Regulation 6(b). Therefore, an individual assessment was conducted in respect of the complainant as to whether it was in the interests of the efficiency of the Garda Síochána that his retirement age should be extended because of his possession of some special qualification or experience.

3.16 In subsequent cases, the ECJ and CJEU have expanded on the types of aims that will be accepted as legitimate, as well as the types of measures that will be accepted as appropriate and necessary to achieve the legitimate aim(s) identified. In Age Concern England Case C-388/07 [2009] ECR I-1569, the Court of Justice held that the aims which may be considered “legitimate” within the meaning of Article 6 of Directive 2000/78/EC and, consequently, appropriate for the purposes of justifying derogation from the principle prohibiting discrimination on grounds of age, “are social policy objectives, such as those related to employment policy, the labour market or vocational training. By their public interest nature, those legitimate aims are distinguishable from purely individual reasons particular to the employer’s situation, such as cost reduction or improving competitiveness.”

3.17 In Petersen v Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe Case C-341/08, [2010] ECR I- 00047, the ECJ considered a German law setting a maximum age limit for the practising of State [panel] dentists at 68. The Court of Justice held that in principle the State had a legitimate aim in protecting patients from dentists whose performance might be declining. However, in this case that aim had been undermined by allowing dentists to practice on a private basis outside the panel system after the age of 68 and so could not be accepted. The Court did, however, accept the aim of sharing out employment opportunities among the generations in the profession of panel dentist. It accepted that, where the number of posts in a particular profession is limited, retirement at an age laid down by law facilitates access to employment by younger people. It said that if faced with a situation in which there was an excessive number of panel dentists or with a latent risk that such a situation would occur, a Member State may consider it necessary to impose an age limit such as that at issue in order to facilitate access to employment by younger dentists.

3.18 In Georgiev v Tehnicheski Universitet, Joined Cases C-250/09 and C-268/09, [2010] I-11869, the Court of Justice held that the encouragement of recruitment undoubtedly constitutes a legitimate aim of Member States' social or employment policy, in particular when the promotion of access of young people to a profession is involved. The Court further held that the mix of different generations of employees can contribute to the quality of the activities carried out, inter alia by promoting the exchange of experience, in this case among teaching staff and researchers.

3.19 Rosenbladt Case C-45/09 [2010] ECR I-9391 concerned a provision for compulsory retirement at age 65 in a collective agreement for the commercial cleaning sector. The Court of Justice held that the aims of sharing employment between the generations, making it easier for younger workers to find work, particularly at a time of chronic unemployment, and not requiring employers to dismiss employees on grounds of incapacity, which might be humiliating, were capable of objectively and reasonably justifying a difference in treatment on grounds of age. It noted as relevant that the rights of older workers were adequately protected as most of them wished to stop working as soon as they were able to retire, and the pension they received served as a replacement income once they lost their salary.

3.20 The Court also held that in the context of a measure requiring the automatic termination of employment contracts in a sector in which, according to the national court, that measure was liable to cause significant financial hardship to the worker concerned, that that measure did not go beyond what was necessary to achieve the desired aims, in particular the encouragement of recruitment. The Court took into account the fact that the worker was eligible for payment of a pension while at the same time remaining in the labour market and enjoying protection from discrimination on grounds of age.

3.21 In Fuchs and Köhler v Land Hessen, Joined Cases C-159/10 and C-160/10, [2011] ECR I-6919, the Court of Justice found that a German state law compelling state prosecutors to retire at 65, subject to the possibility that they may continue to work if it was in the interests of the service until the maximum age of 68, was compatible with Article 6. It held that the aim of providing a high quality justice service combined with the requirement to encourage the recruitment and promotion of young people was a legitimate aim and in the public interest.

3.22 Counsel for the respondents submitted that the former Equality Tribunal considered a mandatory retirement age in the context of emergency services in Saunders v CHC Ireland Ltd DEC-E2011-142. In that case, it was held that the respondent had demonstrated that the operation of a retirement age of fifty-five was objectively and reasonably justified. In Doyle v ESB InternationalDEC-E2012-086 [2013] ELR 34, the Equality Officer found that the employer had objective reasons for the compulsory retirement age of 65 including the need to establish an age structure amongst its younger and older employees in order to encourage the recruitment and promotion of young people and to facilitate good personnel management, the need to have regard to health and safety for certain employments within the organisation and the difficulty in having separate retirement ages for different persons depending on their work.

3.23 Counsel submitted that more recent decisions since the amendment of section 34(4) have taken a similar approach to assessing objective justification. In Transdev Light Rail Ltd v Chrzanowski EDA 1632 (29 November 2016), the employer was again able to objectively justify a retirement age of 65, in this case for tram drivers. The Labour Court accepted the employer’s argument that tram drivers were "safety critical workers", and that because of the nature of their work, it was very important that they be in a position to perform their roles safely, to ensure the protection of the health and safety of tram drivers, passengers and members of the public. It found that the imposition of an upper age limit for safety reasons was legitimate and proportionate. Counsel submitted that in the case of Clinical Psychologist v Social Services ADJ-00004227, the WRC had regard to the EU jurisprudence outlined above and found that the employer had provided “a full defence to objectively justify” a normal retirement age of 65. The objectives put forward by the employer for the retirement age were to provide conditions and supports to staff that would result in a high retention rate, increased motivation and the opportunity for promotion; to create a balanced workforce which also ensures the organisation can effectively manage the departure and recruitment of staff; to ensure cohesion amongst all staff and create opportunities for intergenerational fairness and appropriate renewal of the various teams across the organisation; and to uphold the employer’s values of dignity and respect for all the staff and to avoid disputes with employees around capacity and/or underperformance.

3.24 Counsel submits that the compulsory retirement age of 60 set for members of An Garda Síochána of the rank of Superintendent and Chief Superintendent pursues a number of legitimate aims which have been accepted by the High Court in Donnellan and by the ECJ/CJEU in the decisions outlined above. Counsel submitted that after the introduction of the 2006 Regulations (wherein the retirement age for Garda ranks below that of Superintendent was increased from 57 to 60), certain members in the rank of Chief Superintendent expressed the view that their retirement age should consequently be increased from 60 to 63 to restore the pre 2006 position where there had been a differential of 3 years in the compulsory retirement age between officers and Garda/Sergeant/Inspector ranks. This matter was raised by the Association of Chief Superintendents, through a Conciliation Council claim.

3.25 Arising from this claim before the Conciliation Council, the Organisation Development Unit (ODU) conducted a Review of Retirement Age for Officers in An Garda Síochána. In its report, dated February 2007, the ODU found inter alia that extending the retirement age would create a hiatus in the succession process and may lead to a loss of morale among members seeking positions in the officer ranks. This could result in an exodus of potential officers if career advancement prospects were limited. Figures from the ODU report indicated that up to 49 officers would be eligible to remain in the organisation in the period 2007-2009 inclusive should this age extension be granted. The said ODU report was circulated to all Assistant Commissioners for their views prior to returning this to the Commissioner with an overall recommendation in advance of the Conciliation meeting. Mixed recommendations were received from the Assistant Commissioners.

3.26 Counsel submitted that the then Garda Commissioner prepared a Memo dated the 25th October 2007 which sets out a number of important and legitimate reasons as to why the claim should not be acceded to and as to why, in substance, the compulsory retirement age for officers (such as Superintendents and Chief Superintendents) should be maintained at 60. Counsel for the respondents submitted that this document is critical to understanding at this remove in 2020 the position in the build up to this complaint in 2008 as to why the respondents assert that maintaining the compulsory retirement age for Superintendents and Chief Superintendents at 60 was both important and necessary and what the reasons for it were. On 25th October 2007, the Office of Garda Commissioner wrote to the Secretary General of the Department of Justice, Equality and Law Reform, recommending against increasing the retirement age. It stated:

“[The Commissioner is] of the view that should the Minister concede this claim at conciliation [this] decision is highly likely to create a serious hiatus in the succession process through stagnation in the promotion process in the next three to five years at the very minimum, leading to a possible loss of morale amongst suitably skilled and competent members in the current middle ranks who are now seeking promotion to officer ranks.

It would again introduce differing retirement ages between officers and Garda/Sergeant/Inspector ranks, with further potential for internal unease in terms of equality and fairness for all members of the organisation and any change from the current policy of a retirement age of 60 years for all ranks will, inevitably, lead to claims from the other ranks for a similar increase.

These are significant issues in the context of ensuring maximum operational and administrative efficiency going forward for the immediate three to five years at a time when An Garda Síochána is already going through a time of significant change which needs to be allowed bed down, and in these circumstances it may be prudent to defer any decision on this claim until the effects of such changes are evaluated.”

3.27 Counsel submitted that the said correspondence and documentation demonstrates that the justification for the compulsory retirement age of 60 for Chief Superintendents including the complainant was given full and detailed consideration and was found to be valid and necessary at the time when the complainant was retired in 2008. Counsel submitted that as can be seen from the said contemporaneous documentation, the aims that justify the compulsory retirement age of 60 in this case include:

the need to maintain stability in the force at a time of particular change for An Garda Síochána;
the related importance of maintaining equality and fairness for all members in terms of an equal retirement age (of 60);
the need to ensure maximum operational and administrative efficiency at a time when An Garda Síochána was already going through a time of significant change;
the need to avoid internal unease in the event that the then policy of retirement at age 60 for all members would be changed for a particular group;
the risk of claims from other ranks for changes in their retirement age;
the risk of creating a serious hiatus in the succession process through stagnation in the promotion process if the retirement age for this group of senior officers was to be increased;
the risk of creating a loss of morale amongst suitably skilled and competent members in the middle ranks (e.g. sergeants and inspectors) who would be seeking and expecting promotional opportunities based on the compulsory retirement age of 60 for Superintendents and Chief Superintendents;
the maintenance of motivation within the force and senior ranks, by preventing the blocking of the Superintendent and Chief Superintendent ranks;
the creation of a competitive pool of candidates from which Assistant and Deputy Commissioners might be chosen.

3.28 Counsel submits that the documentation at the time reflects an understanding that a change to the retirement age of 60 in 2008 would have created a serious hiatus in the succession process through stagnation in the promotion process for the following three to five years at a minimum, leading to a possible loss of morale among suitably skilled and competent members in the middle ranks who were then seeking promotion to officer ranks. Furthermore, alteration of the retirement age for Chief Superintendents and Superintendents would reintroduce differing ages between officers and Garda / Sergeant / Inspector ranks, with further potential for internal unease in terms of equality and fairness for all members within the Force. There were in 2008, and continue to be, significant issues in relation to ensuring maximum operational and administrative efficiency in the years following the alteration of the retirement age, at a time when the Force was already going through a period of significant change in 2008.

3.29 Counsel submitted that all of the foregoing reasons are clearly legitimate aims within the context of the EU and domestic case law in relation to compulsory retirement ages. Counsel submitted that the compulsory retirement age of 60 set for Superintendents and Chief Superintendents of An Garda Síochána is appropriate and necessary to achieve the aims pursued, for the reasons advanced above. Reliance is also placed on the fact that there is the possibility of individual assessment provided for within Regulation 6(b) of the 1951 Regulations. Counsel submitted that this was accepted in Donnellan as significant and is equally relevant in this case. In addition, the complainant was entitled on retirement to a pension.

Summary of the Complainant’s Case

4.1 The complainant herein is challenging the mandatory retirement age by which his employment was terminated in 2008 when he reached the age of 60 on the basis that this amounted to direct discrimination on the grounds of age. It is submitted on behalf of the complainant that compulsory retirement at a certain age amounts to direct age discrimination and that therefore the complainant can make out a clear prima facie case which it accordingly falls to the respondents to rebut.

4.2 On 11th March 2008 Mr. Murphy instituted a claim of discrimination on the grounds of age under the Employment Equality Acts against the Minister for Justice and Equality, (then called the Minister for Justice, Equality and Law Reform and hereinafter referred to as “the Minister”) and the Garda Commissioner (“the Commissioner”) in respect to his mandatory retirement from his role of Chief Superintendent of the Garda Síochána on reaching the age of 60.

4.3. Mr. Murphy was appointed Chief Superintendent in July 1992 and served as Divisional Officer in the Wexford/Wicklow division from that time. On 25th January 2008 Mr. Murphy wrote to the Commissioner seeking an extension of his service beyond his age of retirement as per Regulation 6(b) of the 1951 Regulations. In this letter, Mr. Murphy referred to the many complicated investigations across the whole area of criminal law that were successfully completed during his tenure as well as high profile cases of people trafficking and drugs importation with excellent coordination of the National and Regional units, the customs service and external police forces. He stated that all the divisional strategic goals, in line with National and Regional Policy had been attained to a high degree of excellence. He stated that over the last year under his direction the Wexford/Wicklow division had achieved excellent results in the area of crime detection and reduction with a detection rate of 47% and a reduction in headline crime of 4%. He stated that the Regional Commissioner had expressed high levels of satisfaction on the divisional performance under Mr. Murphy’s direction and control. He stated that he was motivated and capable of providing strong leadership and a well-managed, accountable police service to the people of Wexford/Wicklow for many years to come and he requested an opportunity to perform that task.

4.4 Counsel for the complainant submitted that notwithstanding that Mr. Murphy’s letter was written to the Commissioner, no reply was received from the Commissioner. Instead, a letter was issued to the complainant by Chief Superintendent and Personal Assistant to the Commissioner, which stated as follows:

“I am directed by the Commissioner to refer to your correspondence dated 25 January 2008 in the above matter.

The Commissioner has given consideration to your application for an extension of service under Regulation 6(b) of the Garda Síochána (Retirement) (No 2) Regulations 1951 and has noted the grounds put forward by you in support of your application.

I wish to advise you that the Commissioner is not satisfied that in your case it is necessary for him to invoke the provisions of Regulation 6(b) of the Garda Síochána (Retirement) (No 2) Regulations 1951 and accordingly will not be seeking the consent of the Minister for Justice, Equality and Law Reform to do so.

The Commissioner wishes to convey his deep appreciation for the excellent work, dedication and commitment that you have displayed during your service in An Garda Síochána.”

4.5 A letter was issued by the Equality Authority (as it then was – now the Irish Human Rights and Equality Commission) to the Commissioner stating that the compulsory retirement age of Mr. Murphy was in breach of the Acts and in contravention of European Council Directive 78/2000 (“the Directive”) and in those circumstances, there was a request to the Commissioner to disapply the compulsory retirement provisions and to sanction the continuation in service of Mr. Murphy beyond his 60th birthday.

4.6 The Equality Authority also wrote a further letter to the Minister for Justice in very similar terms to its letter to the Commissioner, however there is no record on file of any substantive response from either the Commissioner or the Minister to said letters.

4.7 The current position is that the applicable mandatory retirement age for all ranks of the Garda Síochána is age 60 except for reserve members who have a retirement age of 65. The potential for an extension of service as per Regulation 6(b) of the 1951 (No. 2) Regulations applied to the complainant at the time of his retirement in 2008. It was not clear to the complainant if any Chief Superintendents have ever had their service extended pursuant to Regulation 6(b).

4.8 Counsel for the complainant stated that the role of Chief Superintendent is mainly administrative and managerial. It is not a directly operational role and does not require the performance of demanding physical activities. In 2006, the Association of Chief Superintendents formally requested to have the compulsory retirement age set aside. This led to a review of the retirement age by the Garda Síochána and in February 2007 a briefing document entitled “Review of Retirement Age for Officers in the Garda Síochána” was issued.This review noted that the application by the Association of Chief Superintendents “would appear to have some merit.” In this regard, it was stated that the basis for the setting of the mandatory retirement age seemed to have little bearing on the physical capabilities of each member and that the Garda Code did not indicate any duties and responsibilities of officers that were reliant on the physical abilities of the member. It was also noted that the retirement age for members of the Garda reserve was 65 up until which age reserve members were expected to undertake beat work and assist full time members which they did in addition to their full-time work.

4.9Among the issues outlined that were said to “militate against the application” to set aside the retirement age were:

- The entitlement of the Garda Síochána to set a mandatory retirement age in order “to preserve the operational effectiveness of the service” which it stated was “protected by European and Irish legislation which makes special provision for the emergency services.”
- That if the retirement age were increased to 63, this would create a hiatus in the succession process that could lead to loss of morale among suitably skilled and competent members seeking promotion.
- There were operational aspects to the role of Chief Superintendent and the role attracted increased workload and accountability as a result of the 2005 Act.

In reaching its conclusions, the review noted that in the period from 1950 to 1952, the life expectancy for a male was 64.5 years and for a female was 67.1 years. In 2006 however, life expectancy had increased to 76.1 years for a male and 81.1 years for a female. The review further noted that in respect to other jurisdictions, the UK had increased the retirement age in 2006 for the Superintending and Association of Chief Police Officers (ACPO) ranks to 65 whereas in New Zealand and Australia, mandatory retirement ages for all careers including police had been made illegal.

4.10 Even before the amendment to s.34(4), however, and in accordance with Article 6, it was clear that fixed retirement ages had to be objectively justified. In Donnellan the High Court found that domestic legislation imposing a retiring age must be both “compatible and conformable” with the Directive. The case of Doyle v ESB International DEC–E2012–086 was also cited in this regard. In the case of O’Neill v. Fairview Motors Ltd [2012] ELR 340, the Equality Officer found that s.34(4) of the Acts was to be given a purposive interpretation so as to reflect the presumed intention of the Oireachtas to faithfully transpose a provision of European law and that there was an obligation to interpret the Acts in a manner that was harmonious “in light of” the Directive.

4.11 Therefore, it is submitted that notwithstanding that the facts of the case herein relate to 2008, and prior to the above referred amendment to s.34(4) inserted in 2015, the obligation on the respondents in fact has not changed i.e. that at all times the respondents were and are required to establish that the fixed retirement age relied upon is objectively justified by a legitimate aim and that the means of achieving that aim are both appropriate and necessary. It is of note that s.37 of the 1998 Act was amended by the 2004 Act to amend the exemption provided for at s.37(6) of the 1998 Act whereby the provisions prohibiting discrimination on the grounds of disability and age did not apply to employment in the Defence Forces, the Garda Síochána or the Prison Service. This amendment provides that this exclusion only now applies to employment in the Defence Forces and therefore no longer applies to the Garda Síochána.

4.12 The burden of proof provisions are contained at s.85A of the Acts and provide that where in any proceedings facts are established from which it may be presumed there has been discrimination in relation to the complainant, it is for the respondent to prove the contrary. In respect to the quality of evidence required to rebut the prima facie case, which it is submitted has been made out herein, in Portroe Stevedores v. Nevis [2005] ELR 282, the Labour Court followed the decision of the English Employment Appeals Tribunal in Barton v. Investec Henderson Crothwaite Securities Ltd [2003] IRLR 332 where it held that since the facts necessary to prove an explanation would usually be in the possession of the respondent, “cogent evidence” was requiredto discharge the burden and that mere denials of discriminatory motive, in the absence of independent corroboration, had to be approached with caution since discrimination was “usually covert and often rooted in the subconscious of the discriminator.” In Nevins,the Labour Court also noted that particular difficulties arose in the case of age discrimination because, unlike the other proscribed grounds, there was “no definitive point of distinction between the young, the middle-aged and the old.”

4.13 Counsel refers to a paper commissioned by the European Commission entitled“Age Discrimination and European Law” Colm O’Cinneide, 2005. In this paper, it was noted at the outset that age discrimination was different to other forms of discrimination. In dealing specifically with retirement ages, it is stated:

“Mandatory retirement involves the selection of an arbitrary chronological date (usually the 65th birthday). It fails to take account of the vastly different situations that older persons may find themselves in at that date. By denying access to the workplace, it can close off opportunities for individual self-realisation and constitute a paternalist intrusion in personal life that violates the principle of human dignity. Perhaps the most compelling argument against mandatory retirement ages is that employers could hypothetically achieve the same degree of certainty and planning by setting individual contractual terms, encouraging early retirement where necessary, and using good performance management techniques rather than the blunt tool of a mandatory retirement age.

An alternative source of justification for mandatory retirement is the need to free up jobs held by older people in order to make space for younger people. However, while it may be possible to justify this in the context of specific forms of employment, it is contestable whether it can be justified across the labour force as a whole, particularly since it has been shown that relatively high levels of employment of older people are correlated with higher, not lower, levels of employment of younger people. Careful consideration needs to be given by member states to the range of issues and arguments at stake.”

4.14 The CJEU has addressed the issue of mandatory retirement ages in a number of cases. The ambit of the age-related derogation permitted by Article 6(1) of the Directive was explored by the CJEU in Palacois de la Villa v. Cortefiel Servicios SA C-411/05 (16th October 2007).However, the means employed had still to be appropriate and necessary although it was the case that Member States enjoyed a broad discretion in the choice of both the aims and the means to pursue them. It was held in Palacios that the measure in question did not unduly prejudice the legitimate claims of the workers because it was based, not only on reaching a specific age, but also on having qualified for a pension.

4.15 Incorporated Trustees of the National Council on Ageing (Age Concern England) v. Secretary for State for Business, Enterprise and Regulatory Reform C-388/07 (5th March 2009) examined the legality of the UK regulations which provided, subject to certain conditions, that it was not unlawful for an employer to dismiss an employee who had reached the age of 65 when the reason for the dismissal was retirement. This provision was implied into every contract of employment unless the employer provided for a different retirement age. In considering the applicable legal principles, the CJEU held that it was lawful to impose mandatory retirement ages in national legislation but that such provisions must be objectively and reasonably justified based on employment policies, labour market or vocational training objectives and the means of achieving those aims must be appropriate and necessary.

4.16 In Peterson v. Berufungsausschuss fur Zahnarzte fur den Bezirk Westfalen-Lippe C-341/08 (12th January 2010)the CJEU examined a law that prohibited practising as a panel dentist after reaching the age of 68 but did not prohibit private practice over the age of 68. It concluded that it was for the national court to identify the aim which was actually being pursued by the measure.

4.17 Rosenbladt v. Oellerking GmbH C-45/09 (12th October 2010)concerned a dispute about a clause in a collective agreement for employees in the commercial cleaning sector which provided for automatic termination at the end of the month in which the employee became entitled to a retirement pension or at the latest, at the end of the month in which the employee had reached 65. The CJEU held that the aims of sharing employment between generations, making it easier for younger workers to find work, particularly in times of chronic unemployment, while protecting the rights of older workers whose pensions serve as replacement income, and not requiring employers to dismiss them on grounds of incapacity which may be humiliating, were in principle capable of being objectively and reasonably justified. It was noted that the measure was not based only on age but also on an entitlement to payment of a pension.

4.18 In Georgiev v. Technicheski Universitet Sofia, Filial Plovdiv Joined Cases C-250/09 and C-268/09 (18th November 2010)the CJEU held that Article 6(1) did not preclude national legislation under which university professors were compulsorily retired when they reached 68 and may only work beyond 65 on one-year fixed-term. Fuchs and another v. Land Hessen Joined Cases C-159/10 and C-160/10 (21st July 2011)concerned a regional law that provided for the compulsory retirement of civil servants including state prosecutors at age 65 (which could be delayed to age 68 on request and if in the interests of the civil service) where the claimed aims were: to achieve a balance between the generations; the efficient planning of the departure and recruitment of staff; encouraging the recruitment or promotion of young people; avoiding disputes about older employees’ ability to perform their duties and to

4.19 Counsel asserts that in respect to the information that must be produced by a Member State in order to demonstrate the appropriateness and necessity of the measure at issue, it was held that “the measure must not appear unreasonable in the light of the aim pursued and must be supported by evidence the probative value of which it is for the national court to assess.” Seldon v. ClarksonWright & Jakes [2012] IRLR 591 is a UK Supreme Court decision which examined a retirement provision in an individual contract of employment as opposed to a national law or provisions in collective agreements authorised by national law. The matter was sent back to the Employment Tribunal for further consideration in light of the Supreme Court guidance where it was found that the retirement age of 65 was objectively and reasonably justified. Lady Hale summarised that there were two kinds of legitimate objective: the first being “intergenerational fairness” which could mean a variety of things including: facilitating access to employment by young people; enabling older people to remain in the workforce; sharing limited opportunities to work in a particular profession fairly between the generations; promoting diversity and the interchange of ideas between younger and older workers. The second objective (being as Lady Hale noted “much more controversial”) could “be summed up as a dignity.” This included avoiding having to dismiss older workers on the grounds of incapacity or underperformance, thus preserving their dignity and avoiding humiliation and as avoiding the need for costly and divisive disputes about capacity and underperformance. This was the much more controversial as the assumptions underlying objectives looked “suspiciously like stereotyping.”

4.20 Lady Hale went on to state that the fact a particular aim was capable of being a legitimate aim was “only the beginning of the story” and that it was still necessary to inquire whether it was “in fact the aim being pursued.” She noted however, that although it had to be the actual objective, it could be “an ex post facto rationalisation.” In regard to establishing if the means chosen were appropriate and necessary, Lady Hale stated that “the means have to be carefully scrutinised in the context of the particular business concerned in order to see whether they do meet the objective and there are not other, less discriminatory, measures which would do so.”

4.21 Counsel states that the only decision of the superior courts in this jurisdiction on this issue isDonnellan v. Minister for Justice, Equality and Law Reform and Ors [2008] IEHC 467. ThisHigh Court decisionconcerned a challenge to the mandatory retirement age attaching to the role of Assistant Commissioner of the Garda Síochána. The challenge was based on two arguments (a) that the Garda Síochána (Retirement) Regulations 1996 S.I. No. 16 of 1996 (“the 1996 Regulations”) providing for the retirement age in question was ultra vires the Police Forces Amalgamation Act 1925 and (b) that the provisions of the 1996 Regulations were incompatible with the Directive. In respect to the compatibility with the Directive, the High Court held that there could be no doubt that members of the Garda Síochána came within the remit of the Directive and that, therefore, the provisions of the 1996 Regulations which had the effect of terminating the plaintiff’s employment at age 60 constituted direct discrimination within the meaning of Article 2 thereof. The High Court then went on to examine if the discrimination could be justified under one of the derogations provided for in the Directive.

4.22 Referring to the opinion of the Advocate General in Palacios, the High Court noted it had been acknowledged in European law that age discrimination was of a specific nature in that age as a criterion was a point on a scale and that therefore age discrimination may be graduated and that it was more difficult to determine the existence of discrimination on grounds of age than for example discrimination under the other grounds (such as sex) where the comparators were more clearly defined.The High Court also referred to the European Commission Paper on “Age Discrimination and European Law” (as referred to above) in determining the issue of whether the derogation at Article 4(1) regarding a genuine occupational requirement could apply in this case and decided (at paragraph 86) that this derogation did not apply as the 1996 Regulations could not be said to be aimed at “preserving the operational capacity” of the Force nor could it be said that the age of Assistant Commissioners formed part of the “occupational requirement” of the job and further there was nothing inherent about the age used in the 1996 Regulations “which would mean that a person of a certain age was required for the job.”

4.23 The High Court did find, however, that the retirement age in question could be justified under Article 6(1) on the basis that the measure was for the purpose of achieving the legitimate aim of “employment policy” based on, in particular, the identified justifications of ensuring motivation and dynamism through the increased prospect of promotion and the creation of the most useful pool of candidates possible for appointment to the position of Commissioner. It was further held that the measure in question was both appropriate and necessary to achieve this aim. In reaching its decision the High Court had regard to the fact that notwithstanding that the 1996 Regulations reduced the retirement age for Assistant Commissioners from 65 to 60, by the 1951 (No. 2) Regulations, the Commissioner was permitted to extend the service of a member on his or her request per Regulation 6(b).

4.24 Counsel for the complainant submits that in Donnellan,the evidence was that the number of members within Commissioner ranks was 15 whereas at Chief Superintendent level, it was 52. This was out of a total force of 13,874 at that time. The case was also focused on the reduction in the retirement age for the Deputy and Assistant Commissioner ranks introduced by the 1996 Regulations in respect to which there was certain evidence before the court of the reasons relied upon by the government in 1996 in making the decision to reduce the retirement age for these ranks. This included ensuring that the potential candidates for the role of Commissioner from the pool of Deputy and Assistant Commissioners were not too old for appointment (after the change in the retirement age of Commissioner brought about in 1990 as referred to above).

4.25 Counsel submits that in the wider public service, the compulsory retirement age used to be generally aged 65 but there were variations to this depending on the date of recruitment. Public servants appointed from 1st April 2004 and before 1st January 2013 (who are governed by s.3(1) of the Public Service Superannuation (Miscellaneous Provisions) Act 2004) (“the 2004 Act”) have no statutory retirement age. Furthermore, public servants appointed from 1st January 2013 (who are covered by s.13 of the Public Service Pensions (Single Scheme and Other Provisions) Act 2012) have a maximum retirement age of 70. The situation was then somewhat regularised by virtue of s.3 of the Public Services Superannuation (Age of Retirement) Act 2018 (“the 2018 Act”) which came into effect on 26th December 2018, whereby the compulsory retirement age was increased to 70 for public service employees recruited before 1st April 2004. This means that across the public service the compulsory retirement age is either 70 or, (for those employed from April 2004 and before January 2013) there is no retirement age. Further, the 2018 Act empowers the Minister for Public Expenditure and Reform to increase the retirement age by ministerial order on having regard to the factors set out in the 2018 Act including: the likely effect of such an order on recruitment, promotion and staff retention and any evidence of an increase in normal life expectancy in the State available by the Central Statistics Office from time to time.

4.26 This increase in the retirement age across the public service was, of course, subject to a limited number of exceptions including in respect to members of the Garda Síochána. Counsel for the complainant contends that the move towards a raising of the retirement age is further evidenced by the Industrial Relations Act 1990 (Code of Practice on Longer Working)(Declaration) Order 2017 S.I. No. 600 of 2017 (“the Code”) prepared by the WRC in response to a request from the Minister for Business, Enterprise and Innovation to address the issue of longer working. The Code sets out the best industrial relations practice in managing the engagement between employers and employees in the run up to retirement age. It is noted in the Code that the proportion of older workers, and in particular workers who want to continue in employment beyond what would have been regarded as the traditional retirement age i.e. of 65, is forecast to grow significantly in the future.

4.27 At recital 19, the Directive refers to safeguarding the “combat effectiveness of their armed forces” as grounds for Member States choosing not to apply the provisions of the Directive concerning disability and age to all or part of the Member States’ armed forces. Recital 19 specifically states however that Member States which make that choice “must define the scope of that derogation.” As noted above, s.37(6) of the 1998 Act originally allowed for such a derogation in respect to the Garda Síochána but this was removed by the 2004 Act. In such circumstances, Counsel for the complainant submitted that it is clear that such a derogation cannot be availed of by the respondents. This was also undoubtedly the case at the time of the correspondence referred to which was sent in 2008. In so far as the reference to “ensuring the effectiveness of the Force” appears to be a reliance on the Article 4(1) derogation (as also referred to in recital 18 quoted above), it is submitted that this derogation is not relevant given the nature of the role conducted by the complainant being a managerial and administrative based one. It is further noted that no genuine occupational requirement has ever been specifically identified by the respondents. In any case, given the case law referred to above and in particular in light of the finding in Donnellan, it is submitted that there is no basis on which the respondents can seek to rely on the defence of a genuine occupational requirement to justify the retirement age of 60 for Chief Superintendents. Therefore, it is submitted that in order to rebut the prima facie claim of discrimination, the respondents must come within Article 6(1).

4.28 Counsel for the complainant asserted that from the case law referred to above, it can be seen that it can be lawful to impose mandatory retirement ages in national legislation if the measure is objectively and reasonably justified based on social policy objectives related to employment policies, labour market or vocational training objectives and the means of achieving the aims are appropriate and necessary. The legitimate employment policy objectives were summarised by Lady Hale in Seldonas being (a) intergenerational fairness and (b) dignity. It is for the respondents to adduce evidence establishing both the objective being relied upon and establishing that the identified objective is legitimate. In this respect, the respondents are obliged to adduce cogent evidence. Based on Donnellan, the respondents are seeking to rely on the legitimate employment policy objective based on the particular justifications of ensuring motivation and dynamism through the increased prospect of promotion and the creation of the most useful pool of candidates possible for appointment to the position of Commissioner which it might be argued are justifications that come within the intergenerational fairness category of the legitimate employment policy objective.

4.29 It is submitted on behalf of the complainant however that the respondents should not be permitted to rely on Article 6(1) in the circumstances of this case on the following grounds. Although it is accepted that Member States have a broad discretion in respect to the choice of its legitimate aims and the means of achieving them, as noted in Age Concern Englandthat discretion “cannot have the effect of frustrating the implementation of the principle of non-discrimination on grounds of age. Mere generalisations concerning the capacity of a specific measure to contribute to employment policy, labour market or vocational training objectives are not enough to show that the aim of that measure is capable of justifying derogation from that principle and do not constitute evidence on the basis of which it could reasonably be considered that the means chosen are suitable for achieving that aim.” Counsel for the complainant submitted that when identifying the objectives being relied upon, the respondents should not be permitted to rely on generalised claims to the effect that the retirement age at issue is required in order to achieve any identified or relied upon employment policy objective. Rather, they must be required to furnish specific objectives and then required to demonstrate how the retirement age in question is required in order to meet such objectives.

4.30 Regarding the objectives relied upon in Donnellan. Counsel submits that in that case the decision was based on its own set of “specific facts” and the findings made therein were not to be “taken as supporting the general legitimacy of all mandatory retirement or appointment ages.”

- 1. Donnellanalso concerned the retirement age of Deputy and Assistant Commissioners which comprises a smaller category than the group of Chief Superintendents at issue here.
  2. Regarding the objective of ensuring motivation and dynamism through the increased prospect of promotion, O’Cinneide (referred to above) pointed out that it was contestable that mandatory retirement ages could be justified across the labour force as a whole on the basis of freeing up jobs by older people to make space for younger people “particularly since it has been shown that relatively high levels of employment of older people are correlated with higher, not lower, levels of employment of younger people.” Moreover, there is no evidence that there is any actual issue with recruitment of younger people to the Garda Síochána. In fact, it seems to be the case that recruitment competitions are oversubscribed. As stated in Seldon“if there is in fact no problem in recruiting the young and the problem is in retaining the older and more experienced workers then it may not be a legitimate aim for the business concerned.”
  3. Regarding the particular objective of creating the most useful pool of candidates possible for appointment to the position of Commissioner, it is noted thatthis has far less relevance in the within case than in Donnellan as, in Donnellanthis was considered to be a pool created from the Deputy and Assistant Commissioner ranks.
  4. A further distinguishing feature of Donnellanis that, there was evidence before the High Court setting out the reasons relied upon by the respondents in making the decision in 1996 to reduce the retirement age applicable to Deputy and Assistant Commissioners. To be in a similar position in the within case therefore, the respondents would have to adduce evidence of the reasons for the decision made in 1951 to have two different retirement ages for Superintendents and Chief Superintendents depending on the date of commencement with the Garda Síochána. In this respect, the first set of 1951 Regulations increased the age of retirement from 60 to 63 for existing members whereas the 1951 (No. 2) Regulations (with the current retirement age) applied to new entrants only.

4.31 Counsel argues that the failure of the Commissioner, either himself or through his Personal Assistant, to give any reasons for his decision to refuse the request for an extension to the complainant undermines the transparency in the decision-making process and it is submitted should be taken into consideration in deciding if the objective being relied upon by the respondents herein is a legitimate one. Further, in relying on the derogation at Article 6(1), it is also for the respondents to demonstrate that the measure in question, i.e. the mandatory retirement age of 60, is proportionate by showing that it is appropriate and necessary. Counsel submitted that Lady Hale stated in Seldon this meant that “the means have to be carefully scrutinised in the context of the particular business concerned in order to see whether they do meet the objective and there are not other, less discriminatory measures which would do so.” In this regard the following is noted:

- The retirement age at issue in this case of 60 is particularly low especially compared to the retirement ages at issue in the case law of the CJEU referred to above and furthermore, it has not changed since 1951. It is submitted that it is difficult to see how this low retirement age could in fact be necessary to achieve a legitimate aim in respect to any employment policy objective identified by the respondents. In the UK, the retirement age for the Superintendent and ACPO ranks was increased to 65 in 2006. Counsel submitted that there does not seem to be any compelling reason why the retirement age for the Garda Síochána could not be increased to 65 across all ranks (or at least the managerial and administrative ranks). It is submitted that in the absence of such a reason, the age of 60 is rendered disproportionate.

- The retirement age at issue in this case was imposed unilaterally by way of statutory instrument and was not one to which the complainant through either collective agreement or individual agreement ever had any input as stated to be of significance in Rosenbladt in deciding if the retirement age was appropriate and necessary.

- As stated in Fuchs“particular attention must be paid to the participation of older workers in the labour force and thus in economic, cultural and social life.” It was noted in Fuchs that keeping older workers in the labour force promotes diversity in the workforce being an aim recognised at recital 25 of the Directive. It was also however noted that there were other divergent interests including sharing work among the generations. In Fuchsit was stated that in respect to defining their social policy, Member States had to find “the right balance between the different interests involved, while ensuring that they do not go beyond what is appropriate and necessary to achieve the legitimate aim pursued.” In respect to the within case, it is noted that life expectancy has increased significantly since the retirement age at issue was enacted in 1951 from 64.5 to 76.1 for males and 67.1 to 81.1 for females as of 2006. This represents an 18% increase for males and 21% for females in life expectancy. Yet no account whatsoever has been taken of this fact by the respondents. This goes against the aims of the Directive; the prevailing approach towards increasing mandatory retirement ages or removing them in order to reflect longer life expectancy and the increased recognition of the importance of age diversity in the workplace. Moreover, the current retirement age for the general public service has increased to 70. It is submitted that therefore the respondents have not struck the right balance in this case in maintaining a retirement age of 60 and that therefore the age cannot be found to be proportionate.
- Extensions to service do not appear to be often made or granted pursuant to Regulation 6(b) of the 1951 (No. 2) Regulations which was confirmed by the CSSO in its 29th February 2008 letter wherein it stated that the extension was intended to apply “exceptionally” and that Mr. G’s application for an extension was “the first such application received from a member of his rank in recent memory.” This means that in factthe extension procedure cannot be viewed as an “individual assessment” or as serving “to temper the severity of what would otherwise be an absolute retirement age; thereby rendering it, in my opinion, proportionate” as had been found to be the case in Donnellan.In reality, given the actual practice in place, it is submitted that contrary to the finding made in Donnellan,thatherethe retirement age can only be “entirely equated with a blanket policy type position.”
- Counsel for the complainant submitted that as noted by O’Cinneide, the most compelling argument against mandatory retirement ages is that the employers could hypothetically achieve the same degree of certainty and planning by setting individual contractual terms, encouraging early retirement and using good performance management techniques rather than the blunt tool of a mandatory retirement age. It is submitted that any issues of ensuring motivation and dynamism and/or the creation of the most useful pool of candidates from which to choose the Commissioner as relied upon by the respondents in Donnellan, could be adequately addressed by more proportionate means other than a mandatory retirement age – for example by encouraging early retirement.

Conclusions of the Adjudication Officer

The Legal Framework

5.1 The legal framework prohibiting discrimination based on age is set out at section 6(1) of the Employment Equality Act 1998 – 2015

“…discrimination shall be taken to occur where –

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in sub-section (2), in this Act, referred to as the ‘discriminatory grounds’…”

At sub-section 6(2)(f), “the age ground” is listed as one of the nine discriminatory grounds.

Section 34(4) was inserted into the Act by the Equality (Miscellaneous Provisions) Act 2015 as a qualifying provision permitting different treatment based on age. The objective of this insertion was to support the establishment of a general framework for equal treatment in employment and occupation, set out in Council Directive 2000/78/EC. Article 6 of the directive provides that,

“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.”

Recital 14 of the Directive states:

“This Directive shall be without prejudice to national provisions laying down retirement ages”

Section 34(4) now provides that,

“… it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees if -

(a) it is objectively and reasonably justified by a legitimate aim, and

(b) the means of achieving that aim are appropriate and necessary.”

5.2 From the perspective of the associated legal provisions related to this case, the Code of Practice on Longer Working (SI 600/2017) provides guidance for employers and employees in the context of a desire on the part of some older workers who would like to remain in employment beyond the traditional retirement age of 65 years.

While the provisions of the Code are not legally binding, its guidance is set in the context of demographic, social and regulatory changes in Irish society:

Improvements in health and lifestyle means that we are living longer and therefore, living a greater proportion of our lives as non-working older people;
It is desirable to consider how our workplaces can encourage the retention of older people who want to work beyond the age of 65;
Since 2014, the State pension age is 66 and it will increase to 67 in 2021 and 68 in 2028;
There is no mandatory retirement age in the private sector and the Public Service Superannuation (Age of Retirement) Act 2018 provides that, subject to some exceptions, public service employees recruited after April 2004 will have a mandatory retirement age of 70.Against this background, the Code recommends ways in which older workers can be supported to make a valuable contribution at work, while acknowledging that compulsory retirement at a specified age will not constitute discrimination if it can be objectively justified by a legitimate aim, including the aim of intergenerational fairness.

Case Law

5.3 A considerable volume of case law was submitted by both sides as authorities for their respective positions and it is beyond the scope of this decision to assess the relevance of each one. I intend therefore, to briefly examine the precedents which were identified as significant. In support of the respondent’s position, Counsel referred to the 2007 judgement of the CJEU in the case of Palacios de la Villa v Cortefiel Servicios SA. This concerned the legality of a compulsory retirement clause in collective agreements in Spain which provides that employees in certain sectors must retire at age 65. In considering whether the measure was appropriate and necessary to achieve the legitimate aim identified, the Court emphasised the wide margin of appreciation afforded to Member States in this regard. Counsel for the respondents highlighted the important distinction in Recital 25, Counsel submits that the provision does not have to state the aim. It was submitted that the aim can be different than when the provision came into existence versus when a claim of discrimination is brought. In this regard, the case of Peterson was highlighted where the reason was changed and now the aim of the provision is to recruit younger persons.

5.4 With reference to the 1951 Regulations, Counsel for the respondents submitted that there is no requirement to have the aim stated in the measure. There is broad discretion given to Member States in this regard. Counsel for the respondents submitted that in 2007, the Commissioner decided to leave the measure in place; he was balancing interests vis a vis promotional opportunities, intergenerational fairness and morale in the middle ranks (Sergeant/Inspector). Counsel argues that the respondent did carry out the process objectively and submits that there was no institutional bias. In the context of the review of retirement ages undertaken by Garda authorities in 2007, while many of the Assistant Commissioners stated that there was a good case to extend the retirement age for Officer level from 60 to 63, i.e. Superintendent, Chief Superintendent, a balance had to be stuck. Counsel for the respondents argue that the Commissioner was grappling with the issue of finding a balance to competing interests and demands and having evaluated the information, the Commissioner was of the view that a change to the retirement age of 60 at that juncture would have created a serious hiatus in the succession process through stagnation in the promotion process for the following three to five years at a minimum, leading to a possible loss of morale among suitably skilled and competent members in the middle ranks who were then seeking promotion to Officer ranks. I am cognisant that the representative from Garda HR at the hearing stated that had the claim on behalf of the Association of Superintendents and Chief Superintendents being acceded to (to increase the age of retirement from 60-63) the AGSI (Association of Garda, Sergeants and Inspectors) was ready to lodge a similar claim for equity and parity with the Officer ranks. The Garda HR representative also gave testimony in relation to the effect it would have on morale and promotional opportunities for the lower ranks. He stated that the promotional opportunities were by way of competitive process. He further stated that it could have resulted in many capable members leaving the job to source work outside the organisation. I note from the ODU report that 49 Officers would be eligible to remain in the period 2007-2009 had the age being extended which would have resulted in much unease and disquiet among those Officers in the middle ranks seeking promotion.

5.5 I accept the point made by Counsel for the respondents where he submitted that the complainant himself got the benefit of being promoted due to members being compulsorily retired at aged 60.

5.6 Reference was made to the Donnellan decision in respect of a legal power to extend the age of retirement in Regulation 6(b) which goes to the heart of the issue of reasonableness and proportionality. Counsel for the respondents made the point that 6(b) is not about a member excelling sufficiently but about the interests of An Garda Siochana in relation to maximising operational and administrative efficiency.

5.7 Reference was made to the Age Concern case by Counsel for the respondents who reiterated that cost measures were not the issue and cost was not part of the rationale for maintaining the age of retirement at age 60. It was argued that the aims were legitimate by social policy objectives.

5.8 The case of Petersen in 2010 was concerned with panels of dentists in Germany and the compulsory age of retirement was 68.In Georgiev v Tecnicheski Universitet, (also 2010) the judgement of the CJEU applied to third level lecturers in Bulgaria. Like the dentists in Petersen, the lecturers’ conditions of employment permitted them to remain at work up to the age of 68. The 2011 case of Fuchs and Köhler, was concerned with the retirement age of judges in Germany. In each of these cases, the outcome applied to an identifiable group of workers such as dentists, judges, university lecturers and, in Palacios, the members of a collective agreement. These decisions were reached in a national context and concerned matters of national policy.

5.9 I note that in the Donnellan judgement, Mr Justice McKechnie accepted the aims pursued by the 1996 Regulations as legitimate and held that where multiple reasons are given for an early retirement age, it is enough if one or more amount to a legitimate aim. He noted that it was well established that “where justification is sought and multiple reasons are given, it will be enough that one or more of the justifications advanced, amount to a legitimate aim”. Mr Justice McKechnie also reflected on the fact that Mr Donnellan had the benefit of a generous pension and lump sum upon retirement.

5.10 Counsel for the complainant argued that since 2008, PSNI officers can apply to An Garda Siochana and that there are many changes coming down the tracks vis a vis direct entry recruitment. Counsel also spoke in respect of the current re-organisation in the Force where 28 Divisions are being reduced down to 19 and specifically referred to the the early retirement package offered to members whereby 30 posts were impacted. Counsel pointed out that these measures will have a much more serious impact on promotion for members coming up the ranks and the difficulties of getting promoted will be hampered by other factors which will have an impact on morale amongst members. Counsel for the complainant submits that the respondents did not examine other measures in 2007/2008 that would have a less discriminatory effect for example looking at an early retirement package such as the one referred to above. While I note the points made by Counsel, in my view, these issues are not relevant to my deliberations which relate to retirements which took place in 2008.

5.11 Counsel for the complainant argued that the Commissioner’s letter dated 25 October 2007 is insufficient to meet the burden of proof. Counsel submits that the Commissioner expresses a personal view, the likelihood of a possible loss of morale but provides no evidence to underpin his personal views. Having carefully noted both sides respective positions on this point, I am satisfied that at this juncture in 2007, the Force was undergoing significant change and accelerated recruitment and in order to bed down arrangements and prevent a knock-on claim from the junior/middle ranks, a considered decision was made not to increase the age of retirement at that time. Having evaluated the evidence adduced on this matter, I find that this was a reasonable and measured response in the circumstances pertaining at the material time.

5.12 The first matter for consideration is whether a retirement age of 60 was necessary and appropriate to achieve the respondents stated aims and objectives. In this regard, the respondents stated aims to justify the compulsory retirement age of 60 are detailed at 3.27 above. These include (vi) the risk of creating a serious hiatus in the succession process through stagnation in the promotion process if the retirement age for this group of senior officers was to be increased and (vii) the risk of creating a loss of morale amongst suitably skilled and competent members in the middle ranks (e.g. Sergeants and Inspectors) who would be seeking and expecting promotional opportunities based on the compulsory retirement age of 60 for Superintendents and Chief Superintendents.

5.13 Article 6 of the Council Directive 2000/78/EC provides that,

Recital 14 of the Directive states:

“This Directive shall be without prejudice to national provisions laying down retirement ages”

Section 34(4) now provides that,

(a) it is objectively and reasonably justified by a legitimate aim, and

(b) the means of achieving that aim are appropriate and necessary.”

5.14 Having considered all of the reasons put forward by the respondents to justify a retirement age of 60, I am satisfied that it was a legitimate aim and a legitimate employment policy to have succession planning as part of the rationale for having a retirement age of 60 to ensure there was a sufficient pool of suitably qualified candidates for promotion through a competitive process.

5.15 Having carefully considered all of the evidence adduced in the within complaint, I consider that the respondents have met the test of objective justification. Having examined the exercise undertaken by Garda HR arising from the claim raised by the Association of Chief Superintendents and the claim before the Conciliation Council, I find that given the flat structure of the Force, the prospect of promotion for the junior/middle ranks to Officer level is a very real one. I note the arguments made by the respondents in the context of a serious hiatus in the succession process through stagnation in the promotion process if the retirement age had been increased in 2008. I accept the evidence given by the representative of Garda HR that if the age of retirement was increased, it could have led to ambitious and capable members of the Force going outside the organisation to source alternative employment and this was a factor in considering any change to the retirement age.

5.16 Furthermore, I find that the fact there is a legal power to extend the age of retirement in Regulation 6(b) as set out in the Donnellan judgement goes to the heart of the issue of proportionality. Counsel for the complainant argued that this measure is totally lacking in transparency and submits that a possibility that arises from the legislation but is never granted totally undermines the respondents’ arguments regarding same. While Garda HR confirmed that no member has been given an extension under Regulation 6 (b) to date, on the basis of the testimony given, I accept the evidence that the issue is not about a member excelling in the job per se but the requirements of the Commissioner regarding the efficacy of the operational needs and administrative needs of the Force. At that juncture in 2008, the Commissioner, having considered the application for extension of service on behalf of the complainant, was of the view that there were no exceptional circumstances that would have justified an extension. I note and accept the points made by the complainant herein in respect of the disappointment and hurt that he felt and being let down in the manner in which it was communicated to him by a curt letter as he viewed it from the Commissioner’s personal secretary as opposed to direct communication by the Commissioner himself. However, as pointed out by Counsel for the respondents, discourteousness does not equate to unlawfulness. In my view, while this matter could have been handled better given the service of the complainant, I cannot find any evidence of discrimination or institutional bias therein.

5.17 I requested information from Garda HR in relation to any members of the Force given an extension beyond the age of 60. I was informed that two members of the Force were granted an extension to service under Statutory Instrument. I am satisfied from the evidence presented that the exigencies of An Garda Siochana was paramount in granting these two extensions to service. In those circumstances therefore, I find that the fact the respondent has a policy that enables a member over 60 to remain in certain circumstances clearly tempers the existence of an absolute retirement age.

5.18 I am also cognisant in the caselaw cited above that access to a pension is a significant factor, in that, it goes to the issue of proportionality. The case of Palacios de la Villa v Cortefiel Servicios SA was cited in this regard. Members of the Force on attaining 30 years service can retire on a full pension. I note that the complainant herein had 30 years’ service and had access to a full pension which he himself described at hearing as a good and generous pension.

Decision

6.1 The complaint herein was lodged in March 2008 and I am mindful that my investigation on the matters relate to the proceedings at that juncture. At the material time, the respondents objected to the hearing of this complaint together with several linked complaints on the basis of jurisdictional issues. The matter was lodged with the Supreme Court which subsequently referred the matter to the European Court of Justice for a decision on the preliminary issue. The question concerning the jurisdiction of the WRC was given by the CJEU in January 2019 which gave jurisdiction to the WRC to hear the complaints. As confirmed by the CJEU in Minister for Justice v Workplace Relations Commission (C-378/17), the WRC is required to disapply any national measure that is contrary to EU law and accordingly the herein case was re-listed for hearing by the WRC.

6.2 Having investigated the within complaint, I hereby make the following decision in accordance with Section 79 of the Employment Equality Acts, 1998 – 2015. I find that while the complainant has established a prima facie case of discriminatory treatment on the age ground; I find that the respondents have established objective justification for having a legitimate employment policy with a legitimate aim and the means to achieve the aim were appropriate and necessary at that juncture. Accordingly, I find in favour of the respondents.

_________________

Valerie Murtagh

Equality Officer/Adjudication Officer

7 October 2020

[1] A higher age of 65 is set for members of the Garda Reserve by the Garda Síochána (Reserve Members) Regulations 2006, S.I. 413/2006.