ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00000031

Parties:

Complaint(s):

Date of Adjudication Hearing:  28/04/2021

Workplace Relations Commission Adjudication Officer:  Michael McEntee

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

Supreme Court -Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th April 2021

The Parties were apprised of the above Supreme Court judgement. On the issue of taking evidence under Oath it was agreed that, as there were no major or material conflicts of actual evidence as set out in the submissions, the Hearing could proceed without the taking of an Oath.

The question of anonymity was raised by the Adjudicator. The Respondent had a slight preference for an anonymous decision but as no strong views were expressed and following the Supreme Court views an anonymous decision has not been sufficiently argued – accordingly the Parties are named.

Due to the Covid 19 restrictions a degree of delay was occasioned in the preparation of the Adjudication decision.

Background:

1:            Opening Jurisdictional arguments.

As a preliminary to the Hearing a number of procedural and jurisdictional issues were discussed and argued.

1:1         Background:

The questions raised were

• (1) The Respondent named, the Revenue Commissioners, was not the correct Respondent as it was an independent State entity, albeit part of the Civil Service, and was simply carrying out the Legal requirements of the Oireachtas as set out in the Civil Service Regulation Act,1956. The Commissioners could not act independently of the 1956 Act and having them as the sole Respondent was fruitless.

The precedent case of Horgan and Keegan v Minister for Education and Skills, The Department of Finance, The Department of Public Expenditure and Reform, Ireland and the Attorney General.C154/18, [2019] IRLR 597 was cited as a recent example. Here the Complainants, employed as Teachers, took their actions against a wider range of Respondents and ultimately the Attorney General and Ireland.

• (2) The Complainant, in this case, was subject to the regulations of Section 8 of the 1956 Act, albeit in a case of Discrimination and Employment Equality. European law was central to her case.

However, in the Supreme Court case Minister for Justice, Equality and Law Reform v the Workplace Relations Commission[2017] IESC 43 the Supreme Court ruled that the Workplace Relations Commission does not have jurisdiction to set aside, disapply or amend measures of legislation.

The case was the subject of a referral to the CJEU and the outcome was Boyle v Minister for Justice and Equality and Commissioner of an Garda Siochana and Workplace Relations Commission C-378/17.

It was argued that in this case EU law was recognised as superior to the Irish ruling and that the WRC did have the necessary powers.

1:2         Respondent Arguments

1:2:1      Correct Respondent

The named Respondent – the Revenue Commissioners, are a separate Legal entity under the auspices of the State. The Commissioners are obliged to implement all State employment legislation – in this case the Civil Service Regulation Act 1956. The Complainant effectively seeks to disapply Section 8 of the Act.

In first instance the named and only Respondent- the Revenue Commissioners are not the correct Respondents or if so should have been joined by the Department of Finance, The Department of Public Expenditure and Reform and the Attorney General.

This argument was advanced and supported by the case of Horgan and Keegan v Minister for Education and Skills, The Department of Finance, the Department of Public Expenditure and Reform and the Attorney General/Ireland.C-154/18, [2019] IRLR 597.

1:2:2      Jurisdiction of Workplace Relations Commission.

The Revenue Commissioners and or all the Respondents do not have the power to disapply or seek to amend an Act of the Oireachtas. This is the only possible outcome of a finding in favour of the Complainant by the Workplace Relations Commission.

However, in a major Supreme Court decision in Boyle, Cotter and Fitzpatrick v the Minister for Justice, Equality and Law Reform and the Commissioner of a Garda Siochana and the Workplace Relations Commission [2017] IESC 43 Mr. Justice Clarkeruled that only a duly constituted Court, as envisaged by Section 34 of the Irish Constitution has the jurisdiction to disapply legislation passed by the Houses of the Oireachtas. The WRC is not such a Court and as such can have no jurisdiction in a case such as this. Accordingly, the case cannot proceed at the WRC.

The CJEU reference from this case was acknowledged - Boyle v Minister for Justice and Equality and Commissioner of an Garda Siochana and Workplace Relations Commission C-378/17 (as a convenience called “The Boyle case”). It was argued that the judgement from this case his case was not as simplistic as purported and was much more nuanced than a simple authorisation to the WRC to / disapply or over turn domestic Irish legislation. A chain of CJEU cases leading from Palacios de La Villa C-411/05 -2007 was cited where the Court gave a clear view that a State Actor, i.e. a Government, had considerable discretion as to how to implement Public Policy in regard to Retirement ages. It was not as simple as a WRC first instance finding having a carte blanche as regards disapplying an Act of the Oireachtas.

1:3         Complainant Arguments

1:3:1      Correct Respondent

The Revenue Commissioners are an integral part of the Irish Civil Service. Any attempt at creating a separation is not based on any realistic basis and the Commissioners are a valid Respondent.

               1:3:2:     Jurisdiction of Workplace Relations Commission.

The Complainant cited the CJEU case of Boyle as referenced above to argue that European Law and in particular Directive 2000/78/EC and Articles 15 and 21 of the European Charter of Human Rights gave primacy to European Law and as such conferred on the WRC the jurisdiction to rule in the Complainant’s favour in a discrimination case even if this would bring a ruling into conflict with Section 8 of the 1956 Civil Service Regulations Act.

The CJEU case C-378/17 – the Boyle case specifically empowered the WRC to rule on Equality matters and if needs be to disapply Irish law that was in conflict with EU Law.

1:4         Adjudicator Consideration

It is common cause in this case that the Complainant was employed under the Civil Service Regulations Act,1956. Section 8 specifies a retirement age of 65 years.

The Complainant alleges this is Discriminatory on Age grounds and cites extensive European Court of Justice precedents in her favour.

A Workplace Relations Commission Adjudication finding that Section 8 of the Civil Service Regulation Act, 1956 was in some way discriminatory would effectively require the Section of the Act to be disapplied to correct any purported discriminatory aspects.

This situation or a very close parallel was considered in the Supreme Court case of Boyle, Cotter and Fitzpatrick v the Minister foe Justice, Equality and Law Reform and the Commissioner of an Garda Siochana and the Workplace Relations Commission [2017] IESC 43.

The view of the Supreme Court, Mr Justice Clarke, was that the Workplace Relations Commission does not have the statutory jurisdiction to disapply a piece of Legislation enacted by the Oireachtas. This is a power properly vested in the High Court.

Article 37.1 of the constitution allows for “limited powers” to be vested in a body or tribunal, in this case the WRC, which is not a Court in the Constitutional Article 34 sense.

At Page 11 section 5.8 Justice Clarke states

“In my view a significant power to disapply duly enacted legislation could not be described as a limited power in the sense it which that term is used in Art.37.1”.

Accordingly, it could be argued that the WRC does not have the required jurisdiction to disapply Section 8 of the Civil Service Regulation Act,1956

However, the Boyle case above was the subject of an CJEU reference C-378/17 published on the 4th December 2018.

In the CJEU ruling it stated

“EU law, in particular the principle of primacy of EU law, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which a national body established by law in order to ensure enforcement of EU law in a particular area lacks jurisdiction to decide to disapply a rule of national law that is contrary to EU law.” Page 25

Accordingly, as the Workplace Relations Commission is the Irish body entrusted with matters of Employment Equality it has to be the case that an Adjudication Officer of the Commission has the jurisdiction to hear this case.

1:5         Conclusion and Decision.

1:5:1          The correct Respondent.

The Revenue Commissioners are, from a practical daily point of view, an integral part of the Civil Service establishment.  While a broader range of joined Respondents might have been preferable, as was the case in Horgan and Keegan v Minister for Education and Skills and others, C-154/18, [2019] IRLR 597 this deficit is not such as to preclude the progress of this case.

1:5:2       WRC jurisdiction

The Workplace Relations Commission has the required jurisdiction, as set out in the above paragraphs, to consider this case.

2:        Main case: Complainant position.

The Complainant commenced her employment as a Clerical Officer with the Respondent on the 31st October 2000. Her employment was governed by Section 8 of the Civil Service Regulation Act, 1956 which mandates a retirement age of 65 years.

She had previously been employed from 1969 in a range of Departments as a Clerical Assistant, then Clerical Officer and finally as a Staff Officer in the OPW when she resigned in 1980. She availed of the Marriage Gratuity then available.

In 2000 she became aware of new recruitment in the Public Service and was appointed to a Clerical Officer position in the Revenue Commissioners in, as stated above, October 2000.

Her work record was exemplary and was the subject of a formal commendation by the Chairman of the Commissioners.

As her retirement date (age 65) approached in April 2015 she indicated to the Respondent that she wished to continue working past her 65 birthday. Apart from her obvious exceptional performance and personal satisfaction in the role she also had good financial reasons for wishing to continue.

In correspondence with the Respondent she was informed that she was subject to Section 8 of the Civil Service Regulations Act,1956 and as such had no option but to retire at age 65. The question of a “Hardship” extension was mentioned but as her joint income with her husband exceed the allowable limits this was not pursued.

The Complainant’s case is that her enforced retirement at age 65 is not consistent with the European Charter of Fundamental Rights – articles 15 and 21 and with EU Directive 2000/78/EC.

This is particularly the case as numerous colleagues of the Complainant were permitted to work until age 70.

EU law is governed by Directive 200/78/EC and specifically Article 6 where it states

1. “Not withstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.”

Recital 25 of the Directive also addressed the issue of Age discrimination and emphasised the need for Objective Justification if any case of a possible discriminatory practice.

In 2004 the Public Service Superannuation (Miscellaneous Provisions) Act, 2004 effectively removed the age basis for retirements. It was repealed and in Section 3A (1) of the Public Service Superannuation (Age of Retirement) Act, 2018 a retirement age of 70 years was introduced.

In practical terms the Complainant, in April 2015, was being compelled to retire at age 65 when office colleagues, doing similar duties, had no retirement age following from the 2004 Act.

This was clearly discriminatory on age grounds against the Complainant. The Respondent argued that the age 65 rule was “Objectively Justified”

The Complainant focused on EU and CJEU precedents to draw attention to what exactly Objectively Justified entailed or meant.

Age Concern England – Case C-388/07 was cited as was Palacios de la Villa C-411/05 -2007 to highlight the need for a high standard of proof in regard to any objective justifications being advanced.

The Complainant relied heavily on a lengthy extract from the case of Gerhard Fuchs (c-159/10) and Peter Kohler (C-160)/10) v Land Hessen. This case acknowledged the public good in allowing older workers to participate in the workforce as well as acknowledging the requirements for promotional opportunities for younger staff and the practical issue of adequacy of pension funds for retirees.

In practical terms it appears that the Fuchs’s case identified the need for an objective balance between possibly competing objectives but always mindful of the stricture that any possibly discriminatory measure had to be objectively justified and proportionate.

Th Complainant strongly argued that her retirement at age 65 while colleagues were allowed work on past that age lacked both proportionality and any semblance of an objective justification.

It was pointed out that the Complainant worked as a Clerical Officer, the most numerous and hierarchically a junior grade in the Respondent. Allowing her to continue working could not be seen as denying “promotional opportunities” to other colleagues.

The extensive and detailed Public Policy arguments advanced by the Respondents to justify an age 65 position for the Complainant were completely disproportionate. The basic case was always an individual Age discrimination case not an attack on the Civil Service regulations per say. It was a case of one lady seeking to be allowed work to age 70 in keeping with numerous other colleagues.

It was pointed out that the Complainant could easily and may indeed have been replaced by a colleague older than 65 years.

The Respondent, it was alleged, made a bland and unsophisticated reliance on Section 8 of the 1956 Act rather than engaging in a process to objectively and proportionately justify retiring one officer at age 65 while allowing others to keep working post that age. The question of why the Complainant did not reapply for different post age 65 positions was largely explained by her basic lack of knowledge of these positions and by the absolutist tone of the reply she had received from a Mr K, a Superior Officer, in 2015, in relation to her request to remain at work.

On a human level and as touched in a number of the EU cases the question of the adequacy of the retirement pension available was touched upon. The Complainant had a small pension due to short service and faced real financial difficulties. The adequacy of the pension available was referred to in the Fuchs’s case as well as the Palacios de la Villa case C-411/05 -2007. Retirement at age 65 on a full pension from possibly 40 years’ service is very different proposition from the paltry short service pension of the Complainant in this case.

It was also maintained that it was perfectly acceptable for the Complainant to use post 2004 entry colleagues as proper Comparators. They did exactly the same duties and an attempt to use a date of recruitment contra argument was simply without proper grounds. The CJEU case of Petersen v Berufungsausschuss C-341/08 was cited. Here compulsory retirement ages for Dentists in Public Employment was contrasted with the situation of effectively no Retirement ages in Private Practice. It was put forward that the CJEU, by allowing both sets of Dentists be “comparators”, had effectively made the Complainant’s case for using her post 2004 colleagues as valid comparators.

In summary the Complainant argued that her retirement at age 65 while colleagues were allowed work to effectively 70 years of age was an “egregious breach of Council Directive 2000-/78/EC” and should be given redress to the level of the losses she suffered as a result of the age discrimination.

3:        Main case: Respondent position.

 The Respondent argued that the retirement of the Complainant at age 65 was objectively justifiable for herself and all colleagues recruited at the same time and governed by the Civil Service Regulation Act,1956.

The Respondent submitted that there was no discrimination as all people in her group were treated exactly the same irrespective of age. At age 65 there was a retirement pension and the Complainant was not barred from taking on further work, albeit on a different contract to age 70.

The Respondent did not accept the contention that under Section 6 of the Employment Equality Act, 1998 the Complainant can make a valid comparison with other staff who have an age 70 or no retirement age. These staff are under different conditions and the only valid comparators have to be staff under the 1956 Act against whom no prima facie case of discrimination can be made.

The fact that there were staff of the same grade in different categories, having different recruitment conditions and retirement ages is not relevant as there can be no discrimination between groups who have entirely different terms and conditions. A valid comparison can not be made with a person recruited at a different time under different terms, in this case, retirement ages. The case of Horgan and Keegan v Minister of education C154/18 was cited as supporting the fact that different recruitment dates were perfectly justifiable and allowed for non-discriminatory differences.

In relation to opening facts the Respondent pointed out that the Pension figures being quoted by the Complainant did not refer to the Contributory State Pension, to which she is entitled, that she took her marriage gratuity in 1976 and was not excluded from reapplying for a Civil Service position. She stated that she had used the Marriage Gratuity to help buy a house in 1976 – if she released the equity in this house now and bought back her service she would have a Civil Service Pension of approximately €19,000.

The Respondent queried the interpretation of the CJEU “Boyle” case as giving the WRC jurisdiction to strike down or disapply an Act of the Oireachtas – in this case Section 8 of the 1956 Act. Reference was made to the initial Irish Supreme Court case (referred to above) where the Chief Justice was not of the view that the WRC had such powers.

In relation to the main case the Respondent argued that there was no prima facie case of Age discrimination possible as the only ground being advanced was based on a false comparison with other staff who were recruited at a different time under different Retirement age conditions. Reference was made to the CJEU Horgan and Keegan v Minister of education C154/18 case where the issue was the differences in treatment of varying grades of Teachers based on different recruitment dates. It was stated that the CJEU in that case had ruled that the differences were due to the “Date of Recruitment” and not due to Age. This was ad idem with the current case.

The main thrust of the Respondent argument was that Section 8 of the 1956 was Objectively Justifiable.

Article 6(1) of EU Directive 2000/78 allows for Member States to have differences on grounds of age provided that they are Objectively and Reasonably justified. This made its way into Irish legislation with the Irish Equality (Miscellaneous Provisions) Act, 2015 where the two conditions of

1: Objective and reasonably justified legitimate aims

2: Means of achieving the aims are appropriate and necessary

were introduced. Section 34(4) refers.

On both these conditions the Respondent argued that the age 65 age as applied to the Complainant was justified.

In relation to understanding what exactly objective justification actually means the Respondent pointed to CJEU precedents. It was argued that a State – i.e. Ireland – had a much more flexible interpretation of objective justification and appropriate means, possible to it, than an individual employer. The strict tests in the Bilka v Von Hartz case (C 170/84) 1986 are not transferrable to a state actor who has accordingly a much broader range of options. Reference was made to the Rinner Kuhn v FWW C 171/88 -1989 case where the requirement was for State actions to be “suitable and requisite” as opposed to more restrictive following Bilka. The argument was developed furtherwith references to Mangold v Helm C-144/04 -2005 and Palacios de La Villa C-411/05 -2007.

In summary the case made was that the State has a much broader range of less rigid options and in exercising these is not acting in an age discriminatory fashion once reasonable legitimacy and proportionality are observed.

The Respondent argued that Section 8 of the 1956 Act satisfied these requirements.

The Respondent further argued that it was legitimate for State Policy to change over time and as such changes did not automatically make earlier policy discriminatory. In this context the fact that Irish Legislation changed twice in regard to Retirement dates – in 2004 and 2015 did not make the earlier 1956 Act discriminatory. Reference was made to CJEU rulings especially Fuchs v Land Hessen C-159/10 -2011 and Unland v Land Berlin C-20/13 -2014 to support this point.

Considerable reference was made to the UK Supreme Court case of Seldon v Wright & Jakes [2012] IRLR 590 where Justice Lady Hale summarised the CJEU and Common Law interpretation of what exactly Objective Justification means in a particular scenario. In summary Lady Hale again referenced the maxim that

“The measures in question must be both appropriate to achieve its legitimate aim or aims and necessary to do so.”

In further arguments the Respondent advanced the case that the age 65 retirement in the 1956 Act was in keeping with Public Policy and Workforce planning as regards the wider Civil Service. The case of Palacios de La Villa C-411/05 -2007 was cited in support. Here the Spanish Government was effectively granted flexibilities to allow for an age 65 retirement policy so as to facilitate Public Service manpower planning and the recruitment of younger workers. A similar situation was argued for the Irish State.

The grounds of Intergenerational fairness were advanced – age 65 retirements allowed for younger staff to be recruited and promoted as older colleagues retired.

The Complainant was eligible for a Pension at age 65 – this featured in a number of EUCJ cases where the economic impact of a compulsory retirement was referenced. The fact that the Complainant had the benefit of the Marriage Gratuity since 1976 and could have used the accumulated equity in her house to finance a buyback of pension service was mentioned.

The Complainant was not deprived of future employment opportunities and could easily, in view of her exemplary employment record, have reapplied for another Clerical officer position.

In final summary the Respondent argued that

1. The WRC had no proper jurisdiction to hear this case as it would involve striking down an Act of the Oireachtas -the Civil Service Regulation Act,1956

2. Notwithstanding this the provisions of Section 34(4) of the Employment Equality Acts ,1998 -2015 applied and there was no discrimination.

3. The retirement of the Complainant at age 65 was Objectively Justified.

4:         Adjudication discussion and Conclusions. 

4:1        Jurisdiction

It is decided that the WRC has proper jurisdiction in this case. I refer to the opening Section of this Adjudication where this issue is considered.

4:2      Central Complaint. Employment Equality Act,1998 & alleged Discrimination.

4:2:1      Key question and basic background to Complaint.

This complaint under the Employment Equality Act ,1998 was first lodged on the 20th October 2015 and alleged Discrimination on the Grounds of Family Status, Age and Other grounds.  In the hearing the Complainant refined this to a complaint on the Age ground only.

The complaint has had an interesting journey and for most of the elapsed time, rested, pending decisions in related cases via High Court actions, Supreme Court actions and finally a ruling of the CJEU.

The Complaint finally returned to the WRC for a full hearing on the 28th April 2021.

Voluminous submissions and lengthy legal arguments covering much Irish and European law attached to the case.

Nonetheless, at the end of the day, it remains a straight forward Age discrimination case under the Employment Equality Act, 1998.

Accordingly, it is still incumbent upon me to be satisfied that the Complainant has met the requisite statutory requirements and made out a prima facie case of discrimination / discriminatory dismissal on the ground of age. 

 Briefly, Section 6 of the Employment Equality Acts defines discrimination as:

 “(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, 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 subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which- (i) exists…, and (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are… (f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”) as founded on EU Directive 2000/78.

Section 6(3)(c) of Acts further provides that offering a person over the retirement age a fixed term contact shall not constitute age discrimination if

“(i) it is objectively and reasonably justified by a legitimate aim, and (ii) the means of achieving that aim are appropriate and necessary.” [as inserted by the Equality (Miscellaneous Provisions) Act 2015]  

Section 34(4) of the Employment Equality Acts further provides:

“Without prejudice to subsection 3, 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.” 

Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination:

“Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

4:2:2      Does a prima facie case exist?

It was the contention of the Respondent that no such case was possible as the Complainant was treated exactly like all her colleagues in the pre-2004 recruitment cohort. Chronological age was not an issue as all were subject to an objectively justifiable age 65 retirement age.

The Complainant, it was alleged, had no correct basis to seek to use a Comparator from the post 2004 cohort. They had different terms and conditions and no formal linkage existed as to establish a Comparator relationship. Accordingly, no prima facie case was possible.

The issue of Comparators has long been problematic. In Employment Law in Ireland by Cox, Corbett and Ryan Clarus Press ,2009 it is stated at P 247 that

“the need for a comparator has been one of the most problematic and limiting aspects of direct discrimination.”

However, referring to Section 7 of the Employment Equality Act,1998 as a head line, some guidance is possible

Like work.

7

7.— (1) Subject to subsection (2), for the purposes of this Act, in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if—

( a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work,

( b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or

( c) the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

The Complainant argued that she was effectively interchangeable with other Clerical officer colleagues, albeit with different recruitment dates and they could be used as valid Comparators.

At 8-12 p 379 of Employment Equality Law by Bolger, Bruton and Kimber, Round Hall, 2012 the following quote is useful

“The model of equality adopted by the Directive is in line with the model of equality across the corpus of European equality law. It is not concerned only with a formal equality where the only requirement is to treat all persons who are in similar situations in a strictly identical manner. The equality provisions of the Directive clearly begin with identical treatment based on a similarity of situation. The prohibition on discrimination is based on a prohibition of treating a person less favourably than another is, has been or would be treated in a similar situation.”.

In the Complaint in hand the situation was of one clerical officer, the Complainant, sitting in an office with another clerical officer, who was identical in all regards save a recruitment date. To follow Bolger, Bruton and Kimber above it is the spirit of the Equality Directive we must follow.

We must treat all person who are in a similar situation in a strictly identical manner.

It seems difficult to point to the Teachers case, Horgan and Keegan v Minister of Education C154/18 case as a basis for establishing an argument against the Complainant’s Comparator argument. In that Teachers case differing rates of pay was the critical issue between various groups of Teachers. In the case in hand all the Clerical officers had the same pay scale and were identical in all respects save entry date linked retirement ages.

Accordingly, it is only following the facts of the case that other clerical officers, irrespective of entry date, can be suitable comparators. It is hard to see and drawing on the reasoning in EUCJ cases such as Petersen v Berufungsausschuss C341/08 and also quoted in the Fuchs C159/10 case, how being pre-2004 or post 2004 negates the basic equality provisions of the Directive. The EUCJ was quoted by the Complainant as stating in the Petersen judgement

Article 2(5) of the Directive must be interpreted as precluding a national measure, such as that at issue in the main proceedings ,setting a maximum age for practicing as a panel dentist, in this case 68 years , where the sole aim of that measure is to protect the health of patients against the decline in performance of those dentists after that age , since that age limit does not apply to non-panel dentists.”

Taking this forward, it is clear that an arguable basis for a prima facie case exists in this complaint.

Section 85 A of the Employment Equality Act,1998 is complied with and the complaint can proceed.

The arguments moved to the question of Objective Justification and Appropriate Means

4:2:3       Objective Justification and Appropriate Means

The Respondent relies on Section 34 (4)- below - of the Employment Equality Act,1998 to justify their case.

(4) Without prejudice to subsection (3), 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.

In simplicity therefore, the key question for Adjudication is whether or not the refusal to allow the Complainant to continue in her work post 65 was discriminatory on the Age grounds.

Were the actions / objectives of the Respondent a legitimate aim and were the means employed appropriate and necessary?

4:2:4        Discussion of Objective Justification/Appropriate Means/Case Law/EUCJ

A key aspect of this case was the inescapable fact that the Complainant was employed as a Clerical Officer in the Revenue Commissioners. It is a junior recruitment grade and comprises the bulk of the Revenue Commissioners operational staff. Traditionally it was the entry point for many young school leaver staff but in recent years has also become an entry point for many mature staff, often like the Complainant, seeking a reasonable income without major career advancement ambitions in a secure employment situation.

The extensive written evidence and the oral presentation of the Respondent indicated that Public employment policies in the last decades have actively encouraged this “return to work” scenario and the changes in the age of retirement to age 70 have been a key aspect of this policy. Reference was made to Public Service Conciliation council meetings where this was discussed as was the likely impact on existing Civil/Public Service workers of changes to Retirement ages.

It is against this factual context that the questions of Objectivity and Appropriate means in this case have to be seen.

In considering the extensive case law put forward in this case the one that seemed to have the best resonance to this case was the Seldon v Clarkson Wright & Jakes [2012] IRLR 590. Here Justice Lady Hale and colleagues in the UK Supreme Court considered extensively the issue of retirement ages both in the UK and across the case law of the CJEU.

In essence Lady Hale recognised that within constraints the Public and Social Policy issues as argued by the Respondents here could be used to justify a retirement age.  However, at Para 68 she most interestingly stated

“As to whether the means chosen were proportionate, in the article 6(1) sense of being both appropriate and (reasonably)necessary to achieving those aims, (Intergenerational fairness /manpower planning etc) the case is already to go back to the ET on the basis that it had not been shown that the choice of 65 was an appropriate means of achieving the third aim. The question, therefore, was whether the ET would have regarded the first two aims as sufficient by themselves. In answering that question, I would not rule out their considering whether the choice of a mandatory age of 65 was approportionate means of achieving he first two aims. There is a difference between justifying a retirement age and justifying this retirement age. Taken to extremes, their first two aims might be thought to justify any retirement age. The ET did not unpick the question of the age chosen and discuss it in relation to each of the objectives”.

Accordingly taking some of the observations above the major justifications of the Respondent for the age 65 retirement of the Complainant here was that of Public Policy – maintaining intergenerational fairness, good manpower planning, and allowing for promotion of younger staff. Section 8 of the 1956 Act allows for all of this.

However, a major issue arises when it is seen that effectively Section 8 of the 1956 Act only applies to one section of the work force and it has to be stated a cohort that was rapidly diminishing as it can only contain those recruited pre-2004.

The question has to be where is the Objective Justification for a condition that was rapidly becoming a minority interest at the retirement date of the Complainant in April 2015?

In Age Concern England – Case C-388/07 the CJEU referred to the need for a high standard of proof –

“It imposes on Member States the burden of establishing to a high standard of proof the legitimacy of the aim relied on for justification.”

To quote an example if the Complainant and a colleague of similar grade are sitting at adjoining desks where is the Objective Justification, to the high Standard of Proof, for asking the Complainant to retire at 65 and allowing a colleague to remain until age 70.

To an independent observer the reliance by the Respondent on different recruitment dates is not sufficient to reach the high standard of proof required.

At Para 66 of the Seldon case Lady Hale states in a discussion of the application of General rules – like Section 8 of the 1956 Act and particular individual circumstances.

“There is therefore a distinction between justifying the application of the rule to a particular individual which in many cases would negate the purpose of having a rule and justifying the rule in the particular circumstances of the business. All business will now have to give careful consideration to what, if any mandatory retirement rules can be justified.”

In addition, to follow the arguments, are not the Respondent Public Policy aims that are advanced to justify age 65 not equally valid for an age of 70 years.? If it is acknowledged that encouraging people to work longer is now a Social Goal how can any objective justification exist for an age 65 Retirement age when the reality in the Public Service is that age 70 was, even in 2015, becoming the de facto retirement age. Lady Hale as quoted above stated that

There is a difference between justifying a retirement age and justifying this retirement age

The detailed Public Policy/ Civil Service Manpower planning arguments in support of Section 8 Age 65 retirements by the Respondent are also perfectly valid for the justification of an age 70 Retirement. The CJEU case law all supports a fixed retirement age for all the reasons advanced by the Respondent here. The Complainant in her presentation repeated that she did not query the need for a retirement age of 70 just why, as an individual, she was compulsorily retired at 65

However, where an independent observer would have an issue is that the perfectly valid Social and Public policy arguments from the Respondent do not appear to provide objective justification for the situation faced by the Complainant.

Where is the objective justification for one person, the Complainant, having to retire at age 65 when colleagues can remain to age 70.? It would appear that there may have been a lack of recognition at Respondent level of the problems of age discrimination that might arise when two groups of colleagues doing identical work at a basic hierarchical level had different age-related retirement provisions. 

Reviewing the CJEU case law there is a sense that the Complainant’s case has particular characteristics possibly not found in the quoted cases. In Palacios de La Villa C-411/05-2007 for example the key issue was the objective justification by the Spanish government of an age 65 retirement age not why one colleague had an age 65 retirement age, and another had an age 70. The Petersen Dentist case C341/08 referred to above is also interesting in this regard. In Petersen the EUCJ had ruled in favour of a finding of Age discrimination based on differing Retirement ages.

To return to Lady Hale the key question has to be not why we have a Retirement age of 65 or a Retirement age of 70 or even both but why one individual the Complainant was retired at 65 when colleagues were allowed to stay to age 70. Where is the Objective Justification for this differentiation as it impacted on a Clerical Officer such as the Complainant?

The Respondent argued that the justification was the need to effectively preserve the integrity of the Civil Service wide 1956 Regulations Act. It was argued that if the Complainant had been almost automatically allowed to remain then it would have to had been seen as a Civil/Public Service wide “floodgates” exemption with many foreseen and unforeseen consequences. It was entirely possible that many potential Age 65 Retirees would have stayed for an extra five years with a big negative impact of the need to recruit more junior staff.

The Respondent argued that their case was one of justifying a “Systemic” policy (1956 Act) covering many thousands of Civil/Public Service employees

As stated in the EUCJ cases there is much merit in this argument save for the fact that in 2004 retirement ages had been abolished by the Public Service Superannuation (Miscellaneous Provisions) Act 2004 for those recruited post this date. The Complainant retired in 2015, 11 years post the 2004 changes. How valid the “Floodgates” arguments are in this scenario is certainly open to question.

The Respondent argument that Public Policy can change with the passage of time, the 2004 and the 2015 Pension Age Acts being cited, is valid. The changes to legislation in 2004 and 2015 did not make the 1956 Act illegal. The corollary though would be that if a change in legislation governing retirement ages, such as happened here, inadvertently created a possibly anomalous situation (such as happened to the Complainant) then individual Rights as guaranteed by the Directive and the Charter of Fundamental Rights would still remain undiluted. Lady Hale in Seldon Para 66 quoted above has reflected on this point of the problem of General Rules and Individual cases.

The evidence of the Complainant was that compulsory retirement at age 65 was a considerable financial hardship to her. The adequacy of the available Pension was an issue touched upon in the EUCJ case precedents. In Palacios de La Villa C-411/05 -2007 the adequacy of the Pension was a telling factor in the Respondents favour. In the case in hand the inverse can be argued. The Complainant had a small pension. The suggestion that she in some way release equity from her house (bought with the assistance of the earlier marriage gratuity in 1976) to buy back added years would appear to be somewhat of an extreme suggestion. 

4:3        Overall Conclusions

The arguments above and the references to varied CJEU case law are extensive. The need to have a balanced Public Policy with fixed Retirement Ages has been recognised by the CJEU.

 However, this does not diminish the need to balance the individual rights under the Directive and the Charter of Fundamental Rights of a Complainant aged 65 being forced to retire when their immediate colleagues can stay until 70. This balancing question is the key issue. The Seldon case and the emphasis by Lady Hale on the need for clear justifications, as indeed set out in Section 34(4) of the Employment Equality Act,1988 are crucial.

Taking this point, it is hard to see from all the evidence any Objective Justification being advanced to justify the Age 65 - Section 8 of the 1956 Act forced retirement of the Complainant when so many colleagues were allowed remain to age 70.

The question was not one of challenging the Fixed retirement age provisions per say but the individual age discrimination case of the Complainant under the Employment Equality Act,1998.

In summary and after careful reading of the lengthy submissions, the extensive European case law and the oral evidence I had to come to the view that the high standard of proof referred to in relation to Objective Justification and Appropriate Means to justify the refusal to allow the Complainant to remain at work until age 70 had not been achieved by the Respondents.

In keeping with EU Directive 2000/78/EC and following the Boyle CJEU reference C-378/17 confirming the primacy of EU Law, Section 8 of the Civil Service Regulation Act, 1956 must be disapplied as it applies individually to the Complainant.

The refusal of the application from the Complainant to remain until age 70 was Discriminatory on the Age Ground.

The initial other grounds of Family Status and Other grounds in the initial 2015 complaint were not argued and as such can be disregarded.

5:        Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Section 82 of the Act.

Discrimination occurred on individual age grounds in relation to the Complainant in this case.

5:1       Redress

Based upon the aforementioned reasoning, the Complainant has made out a prima facie case that she was subjected to Age discrimination.

In accordance with Section 82(4) of the Acts, I order the Respondent to pay the Complainant €82,000 in compensation for breaches of the Employment Equality Acts.  The maximum applicable award for an employee is 104 weeks remuneration or €40,000 (whichever is greater), the former being applicable to this case.  This award is arrived at having regard to the requirement pursuant to Article 17 of the Framework Directive as interpreted by case-law that the sanction be “effective, dissuasive and proportionate”. 

Dated:   4th November 2021

Workplace Relations Commission Adjudication Officer:  Michael McEntee

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