DEC-E2020-007

EMPLOYMENT EQUALITY ACTS

DECISION NO.DEC-E2020-007

PARTIES

Anthony Brislane

-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/2008/311

Date of issue: 20 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 12th May 2008. At that juncture, the respondents objected to the hearing of this complaint together with a number of similar 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 28th 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 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 Garda Síochána in lieu of the existing provisions:

(a) subject to subparagraph (b) of this paragraph, every such member shall retire from the Garda Síochána on attaining the age which is applicable to the rank in the Garda 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 Garda 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 complainant has remained set at the age of 60 for members of his 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. 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 the ranks of Superintendent and Chief superintendent 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. The same scope for individual assessment applies to the 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 the 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 at the time of the complainant’s retirement 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 Superintendents including the complainant and Chief Superintendents 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 Superintendents and Chief 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 submits that he has been discriminated against on grounds of age in relation to his mandatory retirement from An Garda Siochana at age 60. The complainant retired at the rank of Superintendent on 23 May 2008. On 11 April 2008, the complainant 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, the complainant stated that he was appointed a Superintendent in May 2000. He further stated that since then he has served as the District Officer in charge of Fermoy Garda District from 2 June 2000 to 28 June 2002. The complainant stated that for the next six years, he served in Internal Affairs investigating serious complaints on behalf of the Garda Siochana Complaints Board. The complainant further stated in the letter that for the past three years he was the Senior Superintendent-In-Charge of the Internal Affairs Investigation Unit which investigates breaches of Garda discipline on behalf of the Garda Ombudsman Commission in conjunction with the Garda Commissioner. He stated that he had built up considerable experience in both the investigation of complaints against members of An Garda Siochana and prior to that the investigation of serious crime as well as the performance of managerial skills and responsibilities as a Garda Superintendent. The complainant stated that he is capable of providing further contributions over the coming years in the investigation of either complaints or crime or indeed any area or aspect of policing as deemed appropriate and he requested the Commissioner to consider his request in this regard.

4.2 The complainant submitted that notwithstanding that his letter was written to the Commissioner, no reply was received from the Commissioner. Instead, a letter was issued to the complainant on 1 May 2008 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 11 April 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 complainant states that in 2008, there was a general perception by many Garda members, including the public and legal practitioners that mandatory retirement on age grounds could be in breach of the EU Directive 2000/78/EC and the Employment Equality Acts 1998-2007. The complainant asserts that this made it all the more unreasonable for the Assistant Commissioner and Human Resource Management not to explain to him in writing and verbally how the decision to retire the complainant was justified and how it was legal under the EU Directive 2000/78/EC and the Employment Equality Acts 1998-2007. The complainant submits that in his view, it was incumbent on the respondent to provide that information in the retirement notification correspondence dated 31 March 2008.

4.3 The complainant states that the role of the Department of Justice, Equality and Law Reform is to maintain and enhance community security and equality through the development of a range of policies and services which underpin the protection and assertion of human rights and fundamental freedoms consistent with the common good. The complainant contends that successive governments, i.e. the Department of Justice, Equality and Law Reform have failed to live up to their mission statement by taking 15 years to bring forward the legislation which brought Irish law formally in line with EU Directive 2000/78/EC in 2015.

4.4 The complainant submits that in relation to the discriminatory act of compulsory retirement on grounds of age up to and including 2008 and beyond to 2015, employers were unsure as to what constituted objective justification as there were no clear statutory guidelines. The complainant states that they relied on “test” cases in the Irish and European Courts for guidance. The complainant maintains that this lack of clarity led to confusion and resulted in a loose interpretation of objective justification which could be open to abuse by some employers. He states that this approach was likely to be in breach of EU/2000/78/EC and liable to result in an increase in the number of age discrimination cases coming before the WRC.

4.5 The complainant states that objective justification and its interpretation was a contentious issue until its harmonisation and clarification in Irish law with the Equality (Miscellaneous Provisions) Act 2015. The complainant submits that this may explain why no reference was made to any law in the notification of retirement on age grounds to him dated 31 March 2008 from the Assistant Commissioner in Human Resource Management. The complainant asserts that failure to include this information cast a doubt in his mind as to respondent’s compliance with the relevant legislation in this regard. The complainant contends that in his case, an imposition of a blanket mandatory retirement age was used relying on Statutory Instrument 335 Garda Siochana (Retirement) (No. 2) Regulations 1951 to administer the process, as no individual consideration or engagement was afforded to the complainant. The complainant argues that this surely would nullify any objective justification of a legitimate aim and its proportionality had one existed in his case. The complainant states that he has neither seen nor heard any evidence of it.

4.6 The complainant highlights the Human Rights Charter 2005-2007 and mentions a sample of the objectives on the Audit Report at 31 March 2007 which included the following; Protect the human rights of all Garda staff, Enhance internal procedures to prevent breaches of staff human rights, Build on the existing good practice and further develop human rights and diversity training for all staff. The complainant contends that one would expect that all staff in the HRM office would be fully aware of the importance of best practice in promoting and fostering the principles of this new initiative by their Assistant Commissioner. Therefore, the complainant would expect that in the disputed circumstances of retirements like his, respect would have been shown for his human rights by the inclusion of the relevant information and justification of this milestone decision rather than the one blunt and only reason for his impending retirement as “Retirement on the grounds of age”.

4.7 The complainant maintains that his rights under the Constitution were denied to him. The complainant asserts that one of the main constitutional rights is the right to fair procedures. He states that the Courts and all other bodies or persons making decisions that affect a person must treat the person fairly. He submits that there are two essential rules of fair procedure (i) the person making the decision that affects you should not be biased or appear to be biased and (ii) you must be given an adequate opportunity to present your case. The complainant asserts that a person must be informed of the matter and the person must be given a chance to comment on the material put forward by the other side. The complainant submits that the latter point is applicable in his case, in that, the Assistant Commissioner or a member of his staff was obliged to explain to him either in writing or verbally (or both) how the decision to retire him was justified and how it was legalised under the EU Directive 2000/78/EC and the Employment Equality Acts 1998-2007.

4.8 The complainant referred to the Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017 S.I. No. 600 of 2017 (“the Code”) which sets out the best industrial relations practice in managing the engagement between employers and employees in the run up to retirement age. The complainant stated that while Garda Superintendents are required to retire at 60, members of the public service recruited before 1 April 2004 and who did not reach the retirement age of 65 before December 2018 can now retire at 70. He also stated that Judges in the various Courts can now remain in employment up to the age of 70. The complainant further asserts that the generality of the work conducted by him as Superintendent is not directly operational or confrontational and is comparable to work carried out by Assistant Principal Officers in the Civil Service. The complainant states that he had structured hours, was employed in a wholly administrative role and therefore was not involved in physical exertion. The complainant contends that the Garda Siochana (Retirement) (No. 2) Regulations 1951 does not recognise the changing nature of policing for all Garda Superintendents as a result of societal changes and the workforce modernisation agenda.

4.9 The complainant contends that he was part of an organisation which requires effective work force planning and modernisation and encouraging diversity in the service through recruitment and retention if it is to operate effectively. The complainant asserts that the Home Office in the UK had a review of the compulsory retirement ages for police officers which resulted in a two-tier system of compulsory retirement ages linked to rank which enables the complex and dynamic business of policing to be delivered. The complainant submits that the new compulsory retirement ages came into effect on 1 October 2006. In relation to the rank of Constable – Chief Inspector the compulsory retirement age is 60 and for Superintending and ACPO ranks the compulsory retirement age is 65. In this regard, the complainant asserts that the compulsory retirement ages for police officers is directly related to the various legitimate aims of the police force and reflects the operational requirement of the generality of officers in those ranks. The complainant submitted that the respondent could have considered the option of a fixed term contract but it was not offered to him even though he had requested a retention of service. The complainant further states that following his mandatory retirement, he felt that he could not look for alternative employment while his claim was being investigated.

4.10 The complainant contends that he has been discriminated against on grounds of his age in respect of his mandatory retirement from An Garda Siochana. He submits that the respondents are in breach of the Employment Equality Acts and the provisions of the Framework Directive.

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 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 members 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 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.

5.11 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.”

5.12 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.

5.13 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.

5.14 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. 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, I cannot find any evidence of discrimination or institutional bias therein.

5.15 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.

5.16 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 over 30 years’ service and had access to a full pension which he described at hearing as a good and generous pension.

Decision

6.1 The complaint herein was lodged in May 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 a number of similar 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

20 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.