FULL RECOMMENDATION
SECTION 77 (12), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : PAT O'DONNELL & COMPANY (REPRESENTED BY MR. OWEN KEANY B.L. INSTRUCTED BY LEMANS SOLICITORS) - AND - DENIS O'KEEFFE (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s). ADJ-00026978 CA-00034542-001. Background The Complainant commenced employment with the Respondent as a Construction Plant Fitter later called a Service Engineer on the 1stSeptember 1989. His employment ceased by virtue of his reaching his 65thBirthday on 21st January 2020. It is the Complainant’s complaint that he was discriminated on age grounds by having to retire at 65. The Respondent disputes that the Complainant was discriminated against. The Respondent submits that there is an objectively justified mandatory retirement age for this category of worker that the Complainant was aware of. Summary of Complainant’s submission It is the Complainant’s submission that he wished to work beyond his sixty fifth birthday. The Complainant submitted that he never had any sick leave and that he saw no impediment to continuing working after his sixty fifth birthday. The Complainant submitted that he had received a contract but that he had not signed same. It was his submission that he was aware of one other service engineer who had continued in employment beyond his 65thbirthday. The Complainant does not dispute that the company retirement plan states that the normal retirement age is 65. However, it is his submissions that it also references remaining in service after age 65 with the agreement of the company. In July 2019 the Complainant wrote to the Respondent seeking to work beyond his 65thBirthday. The Respondent replied on the 16thJuly 2019 refusing the request stating that it is company policy that all service engineers retire on their 65thbirthday. The Respondent wrote to the Complainant again on the 14thNovember 2019 noting his upcoming retirement and restating that it was company policy to have a fixed retirement age due to succession planning. It is the Complainant’s submission that at the date of his retirement there was no qualified service engineer available to replace him. The Union wrote to the Respondent on the 19thDecember 2019 requesting that the Complainant be given an extension of one year to bring him up to the state pension age of 66. This request was refused by the Respondent. It is the Union’s submission on behalf of the Complainant that there was no objective justification or no legitimate aim for having a mandatory retirement age. They also pointed to the fact that Office staff were regularly allowed stay on beyond their retirement age of 65. The Union noted that the Statutory Code of Practise on Longer Working S.I. No. 600/2017 encourages employers to carry out an assessment in respect of a request to stay on and that did not happen in this case. The Union on behalf of the Complainant submitted that the Respondent did not have a mandatory retirement age. The Union cited extracts from two cases in support of their contention that the Respondent did not have a mandatory retirement age. They also cited extracts from decisions of an Adjudication Officer in respect of the test for objective justification and legitimate aim. However, the Court was not provided with copies of the cases. The Union on behalf of the Complainant submitted that the Complainant had demonstrated he was discriminated against on the basis of age. It was the Union’s submission that the Complainant was seeking compensation equating to twelve months salary. Summary of Respondent’s submission and evidence. Mr Keany BL, on behalf of the Respondent’s submitted that the Complainant was not discriminated against. It has always been the practise of the Respondent that Service Engineers are required to retire at age 65. While it is accepted that it is not expressly provided for in the Complainant’s written contract it had been universally employed. The practise is reflected in the Respondent’s handbook and in its Retirement and Death Benefits Plan. The Complainant was at all times aware of the mandatory retirement age for service engineers. He had engaged with the Chief Financial Officer since in and around 2017 in respect of Additional Voluntary Contributions (AVC’s) and in his letter of 1stJuly 2019 the Complainant stated that he wished to extend his employment past his 65thbirthday up to the time that he would qualify for the statutory old age pension. This is a clear indication that the Complainant was aware that his employed would cease on his 65thbirthday. Ms Patricia O’ Donnell HR manager for the Respondent in her evidence to the Court stated that no service engineer had ever worked beyond their 65thbirthday. Ms O’ Donnell drew the Courts attention to a chart in their submission setting out when service engineers had retired and the fact that some had retired before their 65thbirthday. In respect of the individual that the Complainant had referenced that person had not worked as a service engineer for a period prior to reaching retirement age and he continued on to provide cover for a manager and in the warehouse and not as a service engineer. It is Ms O’ Donnell evidence that all employees were given a copy of the employees handbook in January 2016. They had circulated same to all employees and invited comment. They did not receive any comments in respect of the section referencing a retirement age of 65. It was Ms O’ Donnell’s evidence that when she received the Complainants application that she spoke to the Directors. Ms O’ Donnell’s evidence is that it takes six years to get an apprentice ready for the role of service engineer so six years earlier they would have recruited apprentices in the expectation of the Complainants retirement. It is her evidence that the records they held showed that all service engineers retired on or before their 65thBirthday. It was put to Ms O’ Donnell in cross examination that the handbook and pension policy say normal retirement age, if it was a mandatory retirement age why was that not stated. Ms O’ Donnell confirmed that those documents were in respect of all staff and not just service engineers. It is Ms O’Donnell’s evidence that staff in the office have in the past when the Respondent has been short staffed facilitated with working beyond their 65thbirthday. In response to a question from the Complainant’s representative Ms O’ Donnell confirmed that the employee previously identified as having worked beyond 65 had worked as a service engineer but prior to his retirement had moved into admin work. At the time of his retirement, they had needed admin cover and he had been kept on. By the time the Complainant retired the admin side of the house was fully staff so there was no need for cover and the Complainant did not have any experience in that area. It was Ms O’ Donnell’s evidence that three apprentices were due to qualify around the time the Complainant retired but for various reasons they each left. The next person to give evidence on behalf of the Respondent was Mr Keith O’ Shaughnessy the Health and Safety Manager. Mr O Shaughnessy gave evidence as to the nature of the work carried out by a service engineer. It was his evidence that the role can involve working from heights, manipulating heavy machinery parts and that it can be a demanding role depending on the type of machine you are working on. A Health and Safety risk assessment is carried out in advance of the commencement of each job. The nature of the job requires the service engineer to attend customer sites for the purpose of servicing the machinery, the jobs are generally carried out on the client’s site. It was his evidence that Service Engineers are routinely required to mount and dismount large plant machinery. It is Mr O’ Shaughnessy’s evidence that the physically demanding nature of the role supports a mandatory retirement age. In response to questions under cross examination from the Complainant’s Union representative, Mr O’ Shaughnessy confirmed that in his role as Health and Safety Manager he did not have any meetings with the Complainant in respect of accidents on the job or absences. The final witness for the Respondent was Mr PJ O’ Donnell Company Director. Mr O’ Donnell confirmed that he was familiar with the role of service engineer. It is his evidence that it has always been the practise in the company that service engineers retire at 65. In respect of the arrangement for one individual referenced earlier that individual had changed roles five years before his retirement to do admin duties. It was his evidence that in terms of manpower planning they try and match recruitment of apprentices with retirement dates for service engineers, but it does not always work out. In this case the apprentice that was due to take on the Complainant’s role handed in his notice in and around the same time as the Complainant had retired. However, another apprentice completed his time the following September and he moved into the role. It was Mr O’ Donnell evidence that while there is no direct correlation between accident occurring and age, accidents can have a higher impact and a slower recovery in an older cohort of workers. It is his evidence that if they did not have a mandatory retirement age then they would have to go down the route of mandatory medicals which was not their preferred option. It was their policy that Service Engineers should be allowed retire at 65 rather than having a system where their career could come to an abrupt end because they fail a medical examination. The Complaints Union representative put it to Mr O’ Donnell that contrary to the code of practise the Respondent had not looked at the particular circumstances of the Complainant’s application. Mr O’ Donnell confirmed that they had considered his application but saw no basis to move away from the mandatory retirement age of 65 for service engineers. Mr Keany BL directed the Court to the caselaw that the Respondent had submitted and referenced in their submission, which he submitted supported their position. It was his submission that there was a mandatory retirement age implied into the contract. It was contained in the Employee handbook and the pension scheme. The evidence before the Court is that it was established practise that service engineers retired on their 65thbirthday at the latest. It is also clear from the Complainant’s correspondence that this was known to the Complainant. The second issue is whether or not there was an objective justification underlying the mandatory retirement age it is the Respondent’s submission that the role is specialised and that it takes six years to train someone to do the job. Therefore, succession planning is vital to ensure that they have sufficient qualified staff at all times. Having a mandatory retirement age for this category of staff provides certainty, the fact that from time to time the succession planning fails does not undermine it as a legitimate aim. Mr Keany BL also submitted that part of the reasoning behind the mandatory retirement age was to provide dignity for the workers as they got older. It was his submission that this case was a mirror image of the case ofIrish Ferries Limited and Martin Mc DermottEDA1631. It was not in dispute that the Complainant was medically fit to carry out the duties at the time of retirement. However, the role was a safety critical role one and it would be unreasonable to allow a person to continue working until they were unable to perform their duties. It is the Respondents submission that there is an objective justification for the mandatory retirement age and that it serves a legitimate aim. 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 Respondent notes that while the Complainant disputed that there was a mandatory retirement age no explanation was offered as to why he looked for an extension if he did not know that retirement at 65 was mandatory. The Complainant pointed to only one individual who had worked beyond 65 in support of his contention that a retirement age of 65 was not mandatory but did not contradict the Respondent’s evidence that the individual in question had transferred out of his role as service engineer five years before his retirement. Based on the evidence before it, the Court finds that on the balance of probabilities there was a mandatory retirement age for service engineers. The next issue the Court considered is whether or not there is objective justification that is reasonably justified by a legitimate aim for having a mandatory retirement age. The Court notes the undisputed evidence of the Respondent’s witnesses concerning the nature of the job, the fact that it is safety critical, the training period required to qualify service engineers, the investment required by the Respondent in terms of training apprentices to the standard they required. Taking account of all of these issues the Court is satisfied that a mandatory retirement age of 65 for service engineers in this employment is objectively and reasonably justified as it constitutes a legitimate aim. In this case the legitimate aim is to ensure a through flow of appropriately qualified service engineers and to ensure that employees are not required to continue working until they are unable to perform the duties. Determination The Court accordingly determines that the Respondent acted in compliance with Section 34 (4) of the Act, the mandatory retirement age of 65 applied to the Complainant was necessary, reasonable, proportionate and accordingly amounted to objective justification for that maximum retirement age. Accordingly, the Court confirms the decision of the Adjudication Officer and rejects the appeal. The Court so Determines.
NOTE Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary. |
