DEC-S2020-008

EMPLOYMENT EQUALITY ACTS

DECISION NO.DEC-S2020-008

PARTIES

Mr. Michael McKenna

-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/2008/718

Date of issue: 15th of October 2020

1.              DISPUTE

                      1.1       This dispute involves a claim by Mr. Michael McKenna that he was discriminated against by the respondents on grounds of age, in terms of section 6(2) of the Employment Equality Acts, 1998-2004 and contrary to section 8 of those Acts, in relation to his compulsory retirement from an Garda Síochána on his 60th birthday

• BACKGROUND

2.1       The complainant is challenging the mandatory retirement age by which his employment was terminated on the 3rd of November 2008 when he reached the age of 60 on the basis that this amounted to direct discrimination on the grounds of age in terms of section 6(2) of the Employment Equality Acts 1998-2004 and contrary to section 8 of those Acts. The respondents reject the assertion that they discriminated against the complainant, stating that varying retirement ages are 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’). The respondent also submits that the retirement age is objectively justified in terms of sections 34 and/or 37 of the Employment Equality Acts 1998-2004.

2.2       The complainant referred a complaint to the Director of the Equality Tribunal (as it was then) under the Employment Equality Acts 1998-2004 on the 31st of October 2008.

At that time a number of similar cases were lodged with the Tribunal and an objection was raised by the respondent to the hearing of these cases firstly awaiting the written judgement of Mr Justice McKechnie in the High Court case of "Donnellan v Minister for Justice" in respect of the mandatory retirement age for Assistant Commissioners and secondly awaiting the outcome of "the Minister for Justice Equality and Law Reform v Director of the Equality Tribunal” which challenged the jurisdiction of the Equality Tribunal.

2.3      In February 2009 the High Court (Charlton J) held that the Equality Tribunal, as a body whose powers were defined by statute, was not entitled to commence a Hearing that had a result which enabled that Tribunal to overrule or disapply a Statutory Instrument made by the Minister for Justice, Equality and Law Reform even in circumstances where it considered that the Regulations were inconsistent with the Framework Directive .

2.4       The Equality Tribunal appealed the High Court judgement and in June 2017 the Supreme Court decided to refer a question to the Court of Justice of the European Union (“CJEU”) under Article 267 of the Treaty on the Functioning of the European Union (“TFEU”).  The question referred was, in essence, whether a national body established by law, with a general jurisdiction to enforce EU law (in this case equality law) must be taken to have jurisdiction to disapply national legislation that was in breach of the relevant EU law, notwithstanding that jurisdiction also lay with the High Court.    The CJEU delivered its judgement on 4 December 2018 (by which time the functions of the Equality Tribunal had transferred to the Workplace Relations Commission pursuant to the Workplace Relations Act 2015).    It held that EU law, in particular the principle of primacy of EU law, must be interpreted as precluding national legislation, which restricted a national body established by law to ensure the enforcement of EU law in a particular area (such as the Workplace Relations Commission), including the jurisdiction to disapply a rule of national law that is contrary to EU law. In light of the judgement of the CJEU the WRC must be taken to have jurisdiction to disapply national legislation that was in breach of the relevant EU law, notwithstanding that jurisdiction also lay with the High Court. Accordingly following the CJEU judgement the Workplace Relations Commission proceeded to a hearing on the complaint.

2.5      In accordance with his powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission referred the case to me, Orla Jones an Adjudication Officer/Equality Officer for investigation, hearing and decision and for the exercise of other relevant functions of the Director (General) under Part VII of the Acts, at which point my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on 27th of January 2020.

2.6       This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 of the Workplace Relations Act 2015.

• SUMMARY OF COMPLAINANT’S CASE

3.1       The complainant submits that he was discriminated against by the respondents on the grounds of age in relation to his compulsory retirement from an Garda Síochána at the age of 60.   The complainant is challenging the mandatory retirement age by which his employment was terminated when he reached the age of 60 on the basis that this amounted to direct discrimination on the grounds of age.    

3.2       On 31st of October 2008 the complainant 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 Superintendent of the Garda Síochána on reaching the age of 60.

3.3       The complainant was appointed Superintendent on 4th of June 2001.   On 1st of October 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 Garda Síochána (Retirement)(No. 2) Regulations S.I. No. 335 of 1951 (“the 1951 (No.2) Regulations”) which Regulations are addressed in more detail below.

3.4       In this letter, the complainant referred to his work in Internal Affairs Investigations and the considerable experience he had built up since working in this area since June 2005. He also referred to his considerable experience prior to that in the investigation of crime as well as his experience and skills and managerial responsibilities undertaken in his role as Superintendent within the force. He stated that he believed that he was capable of providing further contributions over the coming years in the investigation of either complaints or crime or indeed in any area deemed appropriate in the interests of effectiveness and efficiency as Superintendent of An Garda Síochána. He requested to be retained in the job for a period not exceeding 5 years.

3.5       The complainant received a response to this letter on the 29th of October 2008 from the Superintendent who was Personal Assistant to the Commissioner.

The reply stated as follows:

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.

3.6       On 31st of October 2008 the complainant wrote to the Equality Tribunal alleging discrimination on the ground of age under the Employment Equality Acts 1998 and 2004. The correspondence stated that the claim was based on comparable compulsory retirement ages within the Civil Service.

3.7 The complainant submits that various organisations both public and private have retirement ages which go beyond the age of 65.   He refers to Public Sector employees recruited before 1st April 2004 and who did not reach the retirement age of 65 before December 2018 and now have a new retirement age of 70. The complainant submits that Public Servants at Principal Officer level could retire at 65 where he had to retire at 60. He also submits that Judges in various courts can remain up to at least age 70.   The complainant submits that there seems to be no retirement age for politicians, and he notes that President Higgins is 78 and that a local TD in his constituency is 74 years old and both are well able for their roles.

3.8       The complainant submits that the role of Superintendent is not a directly operational or confrontational role and that it is comparable to the role carried out by Assistant Principal or Principal Officers in the Civil Service. He submits that the role of Superintendent does not require the performance of demanding physical activities.

The complainant submits that he enjoyed his job had a diverse and successful career for 40 years and was fit and able to do the job beyond the age of 60 . He states that he would be well able to carry out the role of Garda Superintendent up to the age of 65.   The complainant also submits that his father was permitted to remain in his post as a Garda until he was 63 years old.

3.9       The complainant submits that the Home Office UK recently reviewed the retirement age for police officers and concluded with a two-tier system of compulsory retirement ages linked to rank which enables the complex and dynamic business of policing to be delivered now and in the future. He states that the new compulsory retirement ages came into effect on the 1st of October 2006 and provide that Constable and Chief Inspector ranks retire at age 60 and Superintending and ACPO ranks retire at age 65.   The complainant submits that there is no reason why the retirement age in Ireland could not be extended to age 65 across all ranks of Garda and that the only bar to doing so is the will of the respondent.

3.10 The complainant submits that the retirement age for other ranks within the Garda Síochána have been increased in recent years and refers to the fact that the retirement age for Garda Sergeants and Inspectors was increased from age 57 to 60 back in 2006 and that this is a basis for increasing the retirement age for Superintendents. He submits that a change in the law is required to ‘level the playing field’.

3.11     The complainant in his submission refers to 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 submits that the Code provides that employees can request to remain at work beyond the retirement age whether or not that retirement age is specified in their contract.   The Code also requires that employers engage in this process.   The complainant goes on to state that he did engage with his employer prior to his retirement date and requested that this retirement age be extended but his request was denied and instead he was forced to retire at age 60.

3.12     The complainant submits that the Garda Commissioner has recently engaged in talks with the Minister regarding the possibility of increasing the retirement age for senior Garda officers. The complainant submits that this would suggest that it could equally have been done during his time as a Superintendent.

3.13     The complainant submits that at the time of his retirement his daughter was still in college and so he had to supplement his income following his retirement. He submit s that following his retirement he took up three part time roles as follows:

Investigations in respect of theft and motor vehicle accidents for an Insurance Company,

Assisting in investigations and taking of statement in environmental cases for the Environmental Protection Agency, and

Participating on Interview Boards for the recruitment of Garda trainees for the Garda Síochána.

The complainant submits that this is evidence that he was still fit and able to work and could equally have carried out his Superintendent role after the age of 60.   He submits that he is also a director of two Companies but carries out these roles in a voluntary capacity.

3.14     The complainant in conclusion submits that he was discriminated against by the respondent when he was forced to retire at the age of 60. He claims that this mandatory retirement age amounts to less favourable treatment on the age ground contrary to the Employment Equality Acts as amended and contrary to Article 2(2) of the Directive Council Directive 2000/78/EC. The complainant goes on to submit that any such mandatory retirement age must be objectively justified by the respondent.

4. SUMMARY OF RESPONDENT’S CASE

4.1       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.

4.2       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.

4.3       The respondent submits 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”.

4.4       In respect of the rank of Commissioner, the retirement 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.

4.5       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’).

4.6       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.

4.7       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.

4.8       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. 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.

4.9       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. 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:

1. “Intergenerational fairness (allowing younger workers to progress);
2. Motivation and dynamism through the increased prospect of promotion;

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

1. Creation of a balanced age structure in the work force;
2. Personal and professional dignity (avoiding capability issues with older employees);
3. Succession planning.”

4.10     The respondents 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.

4.11     The respondent 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.

4.12     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.

4.13     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. 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.

4.14     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 same 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”.

4.15     The respondents submit 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 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.

4.16     The respondents submitted that the facility to make exceptions in certain individual cases is also a factor in favour of the lawfulness of an otherwise compulsory retirement age. It is submitted by the respondents 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 at the age of 60 passed the proportionality test required by Article 6.

4.17     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 this complainant as it did in the Donnellan case. The complainant in this case wrote to the Commissioner in October 2008 prior to his retirement 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.

4.18     The respondent submits that 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.”

4.19     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.

4.20     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.

4.21     The 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.

4.22     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.

4.23     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.

4.24     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 International DEC-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.

4.25     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.

4.26    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.

4.27     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.

4.28     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.

4.29     Counsel submitted that the then Garda Commissioner prepared a Memo dated the 2 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 these complaints 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.”

4.30     The respondents submit 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. The respondents 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:

1. the need to maintain stability in the force at a time of particular change for An Garda Síochána;
2. the related importance of maintaining equality and fairness for all members in terms of an equal retirement age (of 60);

iii.        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;

1. 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;
2. the risk of claims from other ranks for changes in their retirement age;
3. 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;

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;

viii.      the maintenance of motivation within the force and senior ranks, by preventing the blocking of the Superintendent and Chief Superintendent ranks;

1. the creation of a competitive pool of candidates from which Assistant and Deputy Commissioners might be chosen.

4.31     The respondents 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 like the complainant 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.

4.32     The respondents 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 generous pension.

5.Conclusions of the Adjudication Officer

5.1       In Donnellan v The Minister for Justice, Equality and Law Reform   McKechnie J held that the imposition of a mandatory retirement age is prima facie discrimination on grounds of age in terms of the Framework Directive - which is transposed into Irish law by the Employment Equality Acts 1998-2004.

5.2       The respondent at the hearing accepted that the complainant had established a prima facie inference of discrimination on grounds of age in respect of his mandatory retirement at age 60 and that the burden shifted to the respondent to rebut the inference raised.

5.3       The Legal Framework

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.”

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.
•  

   Evidence and Case Law

   5.4.     The respondent submits 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 respondent

in its submissions both written and oral at the hearing referred extensively to the Donnellan Judgement and drew many comparisons between Donnellan and the present case.  

5.5       The respondents submit that the mandatory retirement age of 60 for Superintendents pursues a number of legitimate aims and referring to Donnellan advised the hearing that, the need to create promotional opportunities at the upper ranks of the Force applies equally to the rank of Superintendent as it did to the Assistant Commissioner and Deputy Commissioner ranks at issue in Donnellan.

5.6       Further, I note that the complainant in this case 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 in Donnellan were in place at the time when the complainant’s claim was to be judged by the WRC in these proceedings.

5.7       The respondent in support of its position submitted a considerable volume of case law. The respondent referred to the 2007 judgement of the CJEU in the case of Palacios de la Villa v Cortefiel Servicios SA. In that case the Court held that the encouragement of recruitment was a legitimate aim and in considering whether the mandatory retirement age of 65 was appropriate and necessary to achieve aim identified, the Court emphasised the wide margin of appreciation afforded to Member States in this regard in finding that the aim can change over time and the aim which existed when the provision first came into existence does not have to be the same aim required to maintain the provision.  

5.8       The respondent referred to the Age Concern England Case C-388/07 [2009] ECR I-1569, where the Court of Justice held that the aims which may be considered “legitimate”, “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.     It was argued that the respondents aims were legitimate by social policy objectives.  

5.9       The respondent referred to the case of Petersen in 2010, the Court in that case accepted 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.

5.10     In Georgiev v Tecnicheski Universitet, (also 2010) the Court in that case 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.

5.11     In the Rosenbladt Case C-45/09 [2010] ECR I-9391 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

5.12     The 2011 case of Fuchs and Köhler 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.

5.13     The respondent referred to the case of Clinical Psychologist v Social Services ADJ-00004227, in which 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 included the provision of 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 .

5.14     I note from the evidence adduced that the compulsory retirement age of 60 set for members of An Garda Síochána in 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.

5.15     In addition, I note that reference was made in the Donnellan decision to the legal power to extend the age of retirement in Regulation 6(b) which goes to the heart of the issue of reasonableness and proportionality.  

5.16     The complainant in his submission referred to the Code of Practice on Longer Working in the context of best practice in the run up to retirement age. The complainant submits that the Code recommends that employees be permitted to request to remain in employment beyond the retirement age and requires employers to engage in this process. In evaluating this submission, I note that the respondents do have a derogation from the mandatory retirement age as set out in Regulation 6(b) and that the complainant in this case did apply under this exception to have his employment extended but that this application was unsuccessful.

5.17     The respondent at the hearing stated that the complainants request was considered but that it was decided not to grant the extension. The complainant at the hearing stated that he had always performed his job to a very high standard and was fit and able to continue to do the role past the age of 60 and up to the age of 65 and that he should have been granted the extension.   The complainant in support of this assertion advised the hearing that at the time of his retirement his daughter was still in college and so he had to supplement his income by taking on three part time roles. The complainant submits that this is evidence that he was still fit and able to work and could equally have carried out his Superintendent role after the age of 60.    

5.18     The respondent in response to this made the point that 6(b) is not about a member excelling sufficiently in his role or about the capability of an individual to continue to carry out the role but that the extension under 6(b) is provided for in the interests of An Garda Síochána in relation to maximising operational and administrative efficiency. The complainant advised the hearing that he was not replaced in his role after he retired.

5.19     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.

5.20     The complainant advised the hearing that the retirement age for Garda Sgt Inspectors used to be 57 but that this was increased to 60 back in 2006 he submits that similarly the retirement age for Superintendents should have been increased to age 65.

5.21     The respondent advised the hearing that a review of retirement ages was undertaken by Garda authorities in 2007, this was raised by the Association of Chief Superintendents, through a Conciliation Council claim.  The resultant ODU Report found that extending the retirement age at that time would create a hiatus in the succession process which could lead to a loss of morale among members seeking positions in the officer ranks and which 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 have been eligible to remain in the organisation in the period 2007-2009 inclusive had this age extension been granted.

5.22     At the hearing a representative of the Garda HR outlined the effect of increasing the retirement age for Superintendents and Chief would have on morale and promotional opportunities for the lower ranks. He stated that the Garda Síochána is a very flat structure and that promotional opportunities were by way of competitive process. He advised the hearing that promotion to Superintendent doesn’t happen by way of seniority but that it is a very competitive process with less than a half of a percent making it to the rank of Superintendent.   The respondent stated that Inspectors who apply for the position of Superintendent have to upskill and become competitive in order to have a chance at being promoted to the position of Superintendent.   The respondent advised the hearing that an increase in the retirement age of Superintendents would have pushed out promotional opportunities and would have serious implications for the morale of younger guards seeking promotion opportunities and could result in members leaving the job once they attain 30 years’ service to source better opportunities outside the organisation if career advancement opportunities are limited within the force.

5.23     I accept the point made by the respondent that the complainant himself got the benefit of being promoted due to members being compulsorily retired at aged 60.   The complainant at the hearing acknowledged this.

5.24     The complainant advised the hearing that the legislation to allow Public Servants to work to age 70 is in line with allowing employees to work pending their eligibility for state pension which is set to increase to 67 in 2021 and 68 in 2028. The complainant submits that this retirement age has been changed to allow people to work until the State pension kicks in.   I note from the evidence adduced that the complainant at the time of his retirement was already entitled to his Garda pension I note that members of an Garda Síochána accrue 1 year additional service for every year worked after 20 years so that a Garda with 30 years in the job has the benefit of accruing 40 years’ service for pension entitlements so those with 30 years can retire with a full pension. The complainant in the present case had 42 years’ service when he retired at age 60.   The respondent stated that the complainant was entitled to and was in receipt of a very generous pension after retiring at age 60 and that as he pointed out he was still in a position to do other paid work including sitting on interview panels for recruitment of trainee Garda.

5.25     The complainant submits that the Garda Commissioner has recently engaged in talks with the Minister regarding the possibility of increasing the retirement age for senior Garda officers.   I am satisfied that what is at issue in the present case is the fact that a mandatory retirement age of 60 was in place in 2008 when the complainant reached the age of 60 and thus was retired.

5.26     The respondents submit that the documentation in respect of the review of retirement ages in 2007 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.  In addition, I note the point made by the respondent that any 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. The respondent made the point that there were in 2008, 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.

5.27     Having carefully noted the arguments and evidence adduced on this point, I am satisfied that at this juncture in 2007/2008, the Garda Síochána 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.

5.28     Having carefully considered all of the evidence adduced in the within complaints, 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 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 was increased. I accept the evidence of the respondent on the point that an increase in the retirement age could have led to ambitious and capable members of the Force going outside the organisation to source alternative employment and that this was a factor in considering any change to the retirement age.

5.29     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.

5.30     I am also cognisant in the caselaw cited above that access to a pension on retirement is a significant factor, in that, it goes to the issue of proportionality. Members of the Force on attaining 30 years’ service can retire on a full pension. I note that the complainant herein had 42 years’ service and had access to a full pension.

5.31     I should state that the complaint herein was lodged in October 2008 and I am conscious that my investigation on the matters relate to the proceedings and circumstances at that juncture.  Having carefully considered the written submissions and based on the totality of the evidence and testimony available to me at hearing, I am satisfied that the respondents have provided objective justification for the mandatory retirement of the complainant at age 60 in 2008 when he occupied the role of Superintendent and I find that the respondents have I am satisfied that the respondents have established that the retirement age of 60 for the complainant Superintendent objectively and reasonably justified by a legitimate aim and that the means to achieve the aim were appropriate and necessary at that juncture. Accordingly, I find in favour of the respondents and I am satisfied that the complainant was not discriminated against on the ground of age in respect of his mandatory retirement at age 60. 

6. Decision

6.1       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 am satisfied that the respondents have established that the retirement age of 60 for the complainant Superintendent objectively and reasonably justified by a legitimate aim and that the means to achieve the aim were appropriate and necessary, at that juncture. Accordingly, I find in favour of the respondents and I am satisfied that the complainant was not discriminated against on the ground of age in respect of his mandatory retirement at age 60.  

_________________

Orla Jones

Equality Officer/Adjudicator

15th of October 2020