FULL RECOMMENDATION
PARTIES : MAYO COUNTY COUNCIL DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No’s: ADJ-00009096 CA-00011919-002. In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Lorcan Cribbin, is referred to as the Complainant and Mayo County Council is referred to as the Respondent. The Complainant lodged his complaint with the WRC on the 14/06/2017. The cognisable period for the purpose of the Act is 15thDecember 2016 to 14thof June 2017. Background The Complainant was employed by the Respondent as a traffic warden. He commenced employment on the 19thOctober 1998 and his employment was terminated on the 3rdof August 2018 when he reached his 66thbirthday. It is the Complainant’s submission that he was discriminated against on the grounds of age when the Respondent corresponded with him on the 13thMarch 2017 and 12thApril 2017 advising that his last day in employment would be the 3rdAugust 2017 the day before his 66thbirthday. The Respondent submits that there was no discrimination the letters he refers to are in response to correspondence received from the Complainant on the 3rdof March 2017 seeking to work beyond his contractual retirement age of 66. Summary of Complainant’s submission and evidence Mr Gilvarry on behalf of the Complainant submitted that there were three acts of discrimination within the cognisable period set out above. 1)The Complainant was discriminated against when he wrote looking for an extension to at least 67 and was not granted same. 2)Two other employees Mr Padden and Mr Talbot who commenced work in 1997 and 1984 respectively and whose contracts contained a retirement age of 65 were allowed work until 66 and 3) when the Complainant was not allowed use the grievance procedure because of his age. Mr Gilvarry submitted that the Complainant was relying on a notional comparator as provided for under the Act. The Complainant in his evidence to the Court stated that he had never heard of traffic wardens such as himself being referred to as outdoor workers. It was the Complainant’s evidence that he became aware that his colleagues were having to retire at 66 so he contacted the Respondent by letter of 3rdof March 2017 to establish what the position was in relation to his terms and conditions and his retirement age. In his letter of the 3rdMarch 2017 the Complainant sought to extend his employment beyond his 66thbirthday. By letter of 13thMarch 2017 the Respondent informed him that under his terms of employment it was not possible to accede to his request and that his retirement date was 3rdAugust 2017. It is the Complainant’s evidence that he responded to that letter seeking further information and identifying that he was looking for a short-term contract until 4thAugust 2018. However, he received a further letter stating that his terms and conditions of employment were binding and that his last day of service would be 3rdAugust 2017. It is the Complainant’s evidence that in May 2017 the Respondent found a copy of his particulars of employment which contained a requirement to retire at 66 and provided him with a copy of same. It was the Complainant’s evidence that he did not recall seeing the particulars of employment document prior to that date. The Complainant’s evidence in respect of his attendance at the superannuation talk in 2014 was that he was an employee of Castlebar Town Council at that time and the talk was in respect of pensions for staff of Mayo County Council. He attended the seminar because he got a phone call saying that he should attend it. It was his evidence that he left before the seminar was over. He did not believe that he had seen all the slides or heard the full presentation. In response to questions under cross examination the Complainant confirmed that at the superannuation seminar the slides stated that the retirement age was 66. Following the superannuation presentation in 2014 he did not raise any issues with the Council about his retirement age as he thought that only applied to staff of Mayo County Council. The Complainant further confirmed that he never wrote to the Respondent stating that he did not have a retirement age. The Complainant stated that he did not instigate the grievance procedure in respect of this issue. In respect to his contract, the Complainant accepted that he had opted not to take a copy of his contract but to leave it on his file. He also accepted that if he had received terms and particulars at the time he signed his contract, it would have contained a retirement age of 66. The Complainant accepted that terms and conditions of employment in the County Council and in Town or District Councils are generally the same. He submitted that he believed that he could work until he was 70. In response to a question from Mr Gilvarry, the Complainant submitted that his contract did not provide a retirement age and that when he attended the superannuation seminar, he did not discuss retirement age with the presenter at the seminar. Mr Gilvarry submitted that in a neighbouring County Council (Sligo) staff there have been facilitated and allowed work past the age of 65/66. Based on numerous freedom of information requests, that the Complainant had made they had established that Sligo County Council have allowed employees recruited prior to 2004 to work beyond the age of 66 and that the Council have offered new contracts to employees after the age of 66 years. It is Mr Gilvarry’s submission that the actions of the Mayo County Council in not acceding to the Complainant’s request to remain on in work after his 66th birthday falls foul of the requirements of the Equality Act. He also submitted that the Council had failed to comply with the Directive in that the Respondent had not established that the retirement age was objectively justified by a legitimate aim. Mr Gilvarry directed the Court to the cases ofLongford County council and Michael NeilonUDD 1950 and Reillyv Drogheda Borough Council[2008] IEHC 357 which he submitted supported his contention that if there was no agreed retirement age then the Complainant’s complaint should succeed. It was his submission that in this case there was no agreed retirement age. In response to a request from the Court Mr Gilvarry addressed the case of TomasHorgan and Claire Keegan and the Department of Education and Skills &Ors EDA2121.That case went by way of a preliminary reference the European Court of Justice whose judgment was applied to the facts of the case in EDA 2121 by the Labour Court. The complaint was in respect of age discrimination relating to rates of pay for teachers recruited after a certain date, the ECJ held that it was the date of commencement of employment that dictated the rate of pay and not the individuals age and therefore it was not discriminatory. Mr Gilvarry submitted that the case was not relevant to the case before the court on the basis that there is a significant distinction between the facts in both cases. It was his submission that the reasoning of the ECJ in that case cannot be applied to the facts of this case before the Labour Court. Summary of Respondent’s submission and evidence. It is the Respondent’s submission that the Complainant retired in accordance with the normal retirement age for Traffic Wardens and for non-officer/ outdoor employees of the Council. It is the Respondent’s submission that the Complainant has failed to identify an Act of discrimination and or that he was treated any different to relevant comparators. Within the Council different cohorts of staff have different retirement ages, these are linked to their start date with the Council and the relevant government policy in respect of pensions and retirement ages that was in place at the relevant time i.e. the date of commencement of employment. The Respondent submits that a relevant comparator for the Complainant is someone who commenced employment from between 1998 and 2004 when a new Superannuation Scheme was introduced which had a retirement age of 66. The Complaint’s retirement age based on his contractual obligation as set out in his terms and conditions has always been 66 and has not changed. Mr Padden and Mr Talbot reference by the Complainant, originally had a retirement age of 65 but that was changed as part of a collective agreement to 66. Both Mr Padden and Mr Talbot commenced work prior to 1998 when the Complainant commenced employment. The Council submitted that retirement dates are linked to your start date within the Council. While there are staff who can stay on until they are 70 and other staff who have no maximum compulsory retirement age, the Complainant at his date of retirement did not fall into any of those categories. It is the Respondent’s submission that the Complainant is seeking to rely on correspondence he received from Sligo County Council to demonstrates that staff in that Council can work beyond 66. However, the information does not set out when these employees commenced work or which pension scheme they were covered by, what grades they are, if they are officer or non- officer grades, and therefore they cannot be seen as being relevant comparators. The Respondent submitted that the Complainant was treated no differently to any other outdoor employee employed by the Respondent and in the same pension scheme as the Complainant. The Respondent submitted that the retirement policy which it implemented and applied to the Complainant was objectively and reasonably justified. The specific and legitimate aim that the Respondent had was to comply with Government policy in respect of public sector pensions and to enable the Council to maintain a balanced and diverse age structure within its workforce. The Respondent submitted that the case ofTomas Horgan and Claire Keegan and the Department of Education and Skills &Ors EDA2121is directly applicable to the case to hand as the issue in this case is that the date of commencement is what dictates the retirement age and not your age. The Respondent submits that the Complainant was not discriminated against, there was no discrimination on the grounds of age as employees join the council at a variety of different ages and it is the date you commence employment that dictates the age you retire at. The applicable Law Section 6 of the Employment Equality Acts 1998 to 2015 states: (1) (a )the Act sets out for the purpose of this Act discrimination shall be taken to occur where (a) a person is treated less favourably than another person is, has been or would be in a comparable situation… (2) (F) sets out that as between any 2 persons that they are of different age (3) ( c ) offering a fixed term contract to a person over the compulsory retirement age for that employment shall not be taken as constituting discrimination on the age ground if a) it is objectively and reasonably justified by a legitimate aim b) the means of achieving that aim are appropriate and necessary. Section 34 (4) states: without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for retirement (whether voluntary or compulsorily) of employees or any class or description of employees if- i) it is objectively and reasonably justified by a legitimate aim and ii) the means of achieving that aim are appropriate and necessary. Discussion The Court having considered the submissions from both parties and the evidence put forward by the Complainant notes that while the Complainant disputed that he knew there was a mandatory retirement age no reasonable explanation was offered as to why he looked for an extension if he did not know that retirement at 66 was mandatory for the cohort of workers that he belonged to. The Respondent confirmed that no outdoor workers had at the time of the Complainants retirement worked beyond their 66thbirthday and this was not disputed by the Complainant. The Complainant sought to rely on comparators in Sligo County council however, sufficient information was not provided for the Court to establish if they were appropriate comparators. The Respondent submitted that the key factor in determining at what age a worker will retire is the date they commenced work with the Respondent and referenced various amendments to the Superannuation scheme to support their contention. It is not disputed between the parties that employees can join the Respondent at different ages. The Complainant did not dispute that there are a number of different superannuation scheme which vary the retirement age and that they had been introduced after he had commenced employment with the Respondent. The Court having considered the submissions of the parties and the evidence before it determines that the retirement age was determined by the date that employment commenced which was not linked to age and therefore the appeal must fail Determination The Court accordingly determines that the Complainant was not discriminated against on the grounds of age when he was obliged to retired at 66. Accordingly, the Court confirms the decision of the Adjudication Officer and rejects the appeal. The Court so Determines.
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