Complainant

Respondent

Parties

Patrick  Cassidy

Portfolio Concentrate Solutions unlimited (amended on consent at hearing)

Representatives

Andrea Cleere ,SIPTU

Sophie Crosbie, Regional Director, IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00035744-001

17/04/2020

This matter was heard by way of Remote Hearing pursuant to 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.

This case surrounds a claim for discrimination on grounds of age on behalf of the Complainant, which is denied by the Respondent. The Legislative framework is the Employment Equality Act, 1998.

The Complainant was represented by SIPTU and the Respondent by IBEC, both of whom submitted written submissions and supported their respective witnesses at hearing.

The case first came for hearing on May 17, 2021. On that day, both parties heard of the changes surrounding the WRC procedures following the Supreme Court case of Zalewski v Adjudication Officer [2021] IESC 24. I also outlined my intended procedural framework for the case.

The Respondent expressed a difficulty with continuance in the absence of their main witness, Mr X who was unavailable due to a personal bereavement.

The Union sought to continue with the hearing.

I listened to both parties and concluded that the administration of the oath would be necessary in the case. I ascertained that there would be one witness for the Complainant and two for the Respondent. I sought a written submission from the Respondent along with any relevant notes from meetings in the case. I adjourned the case accordingly to await the legislative changes surrounding administration of the oath.

The case resumed on 6 October 2021 and the hearing concluded on that day. On conclusion, I sought a number of relevant documents from the parties

1 Record of the Complainants consent to increase amount payable to pension fund

2 Record of age, tenure, and grade of new hires over 2019 and 2020

3 Confirmation of who replaced the Complainant in his pre-exit role?

On November 1, 2021, the Respondent submitted a five sheet excel document which logged the employees hired to the business in 2020 with two mentions for 2019. I did not receive any of the other requested documents .

The last document in response was received from the Union on 6 December 2021 which re-affirmed the complainant was a late entry on permanency to the DB scheme. His pre exit role in the Salt Room was distinguished from a heavy manual role.

On 17 April 2020, The Union lodged a complaint of Discrimination on age grounds, in contravention of Section 6(2)(f) of the Employment Equality Act, 1998 in respect of the Complainant who had worked as a full time General Operative from April 1990 to his compulsory retirement aged 65 in February 2020. The Complainant earned gross pay of €1004.00 per week. The most recent date of alleged discrimination was listed as 2 February 2020 (corrected from 2 April 2020).

In essence, the Complainant complained that it must be noted the respondent failed to provide any reasonable or legitimate aim or objective grounds as to why the complainant could not work beyond 65.

The Union outlined that the complainant had worked on successive temporary contracts until he achieved permanency with pension rights during 2000.He had built up 30 years’ service by the time of his leaving employment.

In February 2019, the Complainant became aware of the presence of SI 600/2017 on Older Persons in the Workplace.

He sought to initiate some discussions on this topic and applied to “extend my employment with the company beyond my 65th birthday “.

He received a response dated October 2019

“…. Unfortunately, the company is not in a position to increase the retirement age from 65 and this has been decided for a number of reasons”

The Union outlined that the parties had met to discuss an appeal of the decision on November 5, 2019, but no written records were retained by either party.

By way of appeal on March 3, 2020, the Complainant sought a two-year contract of extension and indicated, if successful, that he was prepared to defer his pension,

The Union contended that the Complainant had not been notified of retirement age and he was willing to undertake any sort of work. He was not heard on these suggestions and his concerns were not taken on board. His appeal was denied on April 2, 2020.

The reasons advanced were a combination of health and safety concerns, dignity of the ageing worker, inter-generational fairness, the umbrella presence of an occupational pension activated at age 65.

The Union introduced a named comparator, Mr A who retired from the Company in 2007 aged 67.

Summary of the Evidence of the Complainant:

The Complainant submitted that he was not familiar with Pensions until he secured permanency, when pension was obligatory for employees.

He recalled that the Company supported an additional payment of €475 in AVC which replaced an earlier shares payment, which had attracted tax.

He confirmed that he had learned of the Governments move to extend working and he requested to stay on in February 2019. He was not invited to a meeting to discuss.

He discovered the reference to the step-down days in his Portal 3 days away from his leaving in November 2019. He had been due to finish on 2 February 2020. He was not invited to a Retirement Party.

He first became aware of “the house agreement” in 2014.

He disputed that he had a peculiar knowledge of pensions as a union rep. His attendance at management meetings was linked to pay talks only. He really wanted to extend tenure and he would not have had a problem in deferring the pension to accept a fixed term contract. He remarked that it was unusual that he wasn’t met on his concerns.

The Complainant pointed to his belief that he would have been capable of continued work at 66 as he had passed his regular health clinics.

He had observed the familiar site of employees of fixed term status being laid off and replaced at the company at the 23-month limit. He recalled that when he left, he was accompanied on the same day by another fixed term worker, whose name he could not recall. He was clear that a new intake was due to commence on the following Monday.

During cross examination, the Complainant disputed that the site was “hugely different “He reaffirmed the perennial presence of 23-month temporary workers at the site.

He recalled attending 3 pay round talks as a union rep, but these did not incorporate any discussions on extending the working life at the site. He understood that area was the preserve of the Union Official.

He did not recall any discussions about pension during his temporary tenure. He recalled a vulnerability attached to his temporary status which did not reconcile “complaints on anything as not going to be asked back “He was happy to get a job in the site.

He did not recall having discussions with anyone at the Company about Retirement. He said he wasn’t affected by the 2013 changes and continued to contribute at DB and AVC level.

He recalled that the Pension provider contacted him the day before he finished, but this contact was not accompanied by documents. He confirmed that he had received annual pension statements which exhibited an end of employment term.

He did not recall an increase in pension subs by consent on vote from 5% to 8% in 2008.

The Complainant confirmed that he had accepted the retirement age of 65. He accepted the Respondent figure of €735 annual contribution to AVC rather than his figure of €475 and confirmed that he was not trying to deceive.

In answer to the Respondents question on why he didn’t act in the wake of the February 2019 application? He responded by saying that he understood that he had to give 3 months’ notice in terms of the code of practice and this was 11 months before he was due to leave.

He was unaware that the Company had absorbed the workers liability for the pension levy as he had not been on the Union Committee at that time.

He didn’t dispute the security of a DB pension but stated that he would have preferred to work until age 67. He wanted to defer the pension, which he interpreted as a favourable action for younger people.

Nobody told him that he was prohibited in deferring his pension. He didn’t want to change the Company, he just wanted to extend his tenure.

The Respondent representative focused in on the 52 steps down days and put to the complainant that his availing of these days amounted to an inconsistency with his request to extend his tenure? The Complainant responded by confirmation of the application of the days on his portal the week he was going. He had wanted to stay on, and the matter was under appeal with the company. He concluded that nobody told him not to take the days.

The Respondent asked him whether he would accept that the option of taking those day was not compulsory? The Complainant said it was “the first he heard of it “

The Complainant accepted that he was notified of training days on the pre -retirement training days but he did not recall receiving associated documents.

He confirmed that he had not met with anyone regarding retirement.

The Complainant disputed knowledge regarding a named Electrician.

In redirect from the Union, the Complainant re-affirmed that he had not been alerted to the rules of the pension scheme and did not know about pension deferral. He aware of the permutations in time break down on the step-down days as 3 days or 2 days.

The Complainant stated that his decision was if he had to take the days, he would take them in block.

In clarifications to the Adjudicator, the Complainant confirmed that he had not requested access to the DC scheme as part of his request to extend tenure. He confirmed that he had not discussed the concept of extension request prior to February 2019, as he understood he had plenty of time prior to his retirement date.

He clarified that he was present at the November 5, 2019, meeting but described it as a process and directed at a loss of earnings claim arising from shift change, which remains outstanding.

The Complainant stated that his last job was in the Salt area (2 shifts), and he did not recall being replaced on leaving. He was unable to recall the dateline for his last health check which comprised blood tests.

He gave details of his current income which comprised statutory and occupational pensions. He added that all he wanted was to be treated with respect. He had worked well with the company and sought an extension of that time. He had found it soul destroying to be cast out.

The Respondent representative asked the complainant if he was aware of a Pension Trustees Report, to which he said he had no recall. He practiced a rhetorical question when asking “why would he have inquired about the step-down days? “

The complainant re-affirmed that he was still working at the Plant when it was common knowledge that 36 fixed term workers were starting on the Monday after he finished.

The Union took issue with the Employer reasons applied to the refusal to extend the Complainants tenure by way of appeal on April 2, 2020.

1.       The reference to the objective of health and safety was not underpinned by a completed risk assessment and therefore was not objectively justified

2.       The complainant was denied a platform to be heard adequately at the business. This deviated from the code of practice on longer working. The Appeal was received two months after the complainant had exited.

3.       The Respondent were inconsistent in their treatment of Mr A and the Complainant. The failed to see how the Company could not issue a fixed term contract to resolve the complainant’s issue.

4.       The Company Agreement of 1982 is silent on the age of retirement and the company did not objectively justify this mandatory retirement in February 2020.

5.       The Company ought to have exercised caution in placing reliance on a pension scheme rules and benefits in seeking to establish a contractual retirement age.

The Union accepted that fixing a retirement age must be both an appropriate and necessary means of achieving the legitimate aim relied on by the Respondent, where fixing that compulsory retirement age beyond that, it will fall outside the exemption provided in the legislation.

The Union concluded that the complainant was dismissed on his 65th birthday and the decision to terminate the complainant’s employment was directly related to his age

Cases cited

Ann Roper and RTE ADJ 19084

Thomas Mahony v South West Doc on Call E2014-031

The Union submitted that the complainant had satisfied the burden of proof necessary in the case and that the Respondent could not legitimately rebut the fact of discrimination by way of dismissal. The Union sought compensation as redress for this treatment.

The Union did not add anything additional on closing and rested their case on the written submission and oral evidence.

The Union sought clarification on the excel sheet of hires at the company 2019/2020 post hearing and did not advance on this.

The Respondent Representative gave an outline on the global operation of the company. The site manufactures beverages and employees 560 workers, 260 are directly employed on production.

The site is in operation from 1970s.The Company operates a Mandatory Retirement Age of 65 and has many associated structures  to support that end .

The Respondent exhibited two contracts of employment.

1 A Temporary contract signed by the complainant on 16 June 1992 

2 A Permanent contract for Senior Operative signed by the complainant on 31 March 2000.

The Respondent Representative clarified that the contract did not specify a retirement age, but rather the second contract referred to the Company Pension plan conditional on permanency by association with the Union /Company Agreement, 4 March 1982

“Employees will qualify for the Pension, Disability and Life Assurance Plan in accordance with the provisions of that scheme “ 

The Respondent has refuted the claim for discrimination on age grounds in its entirety and sought that the matter be dismissed. The Respondent applied fair procedures, the Complainant had been treated with courtesy and afforded an appeal of his request to extend work beyond his retirement age.

It was the Respondent case, that the Complainant was on full notice of the Retirement age of 65 active at the company and recognised by the application of the DB pension aged 65. The Complainant had been a committee member with his Union and had attended colleagues’ retirement functions when they retired at 65 years of age.

 The Union/Company Agreement refers to a Pension plan for permanent employees. The Complainant was offered and refused access to the Company pre-retirement course.

The Company operates a lead into retirement initiative which permits an employee access to 52 days of step-down paid days off in the last 6 months of employment.

2 months 1 day per week

2 months 2 days per week

2 months 3 days per week

It was the Respondent case that the Complainant availed of 405 hrs of this arrangement between 18 November 2019 to 31 January 2020

The Respondent confirmed that the complainant first applied “to extend my employment with the company beyond my 65th birthday “on 27 February 2019.

The application was denied on 17 October 2019 citing intergenerational fairness and affirmation “In view of our health and safety obligations to all our employees, we considered 65 to be a reasonable age at which to impose retirement “

The Respondent explained the reason for the delay in engaging with the complainant request to extend his working tenure arose from the HR Manager being absent on ill health. There was no disrespect intended on that delay.

The Union communicated their intention to appeal this outcome on 31 October 2019. This occurred on 5 November 2019 with a further level of Review in March 2020. The Appeal outcome by Mr A was shared on 2 April 2020 and was unable to place the complainant on a fixed term or specified purpose contract currently.

The Respondent operates a Defined Benefit Pension Scheme (DB) which has been closed to new entrants from 2013. The Company absorbed the pension levy payment 2011-2013. The Pension company provides annualised records of benefit status directly to employees. The age of 65 is stated clearly as signalling the end of employment in these documents.

The Union had never asked to extend the retirement age of the workers at the plant. The Collective Agreement not been re-negotiated since the 1982 dateline.

The Company upheld a legitimate aim that workers must retire at age 65. The reliance by the complainant on Mr X as comparator was misguided as the Mr X case was a genuine mistake. Mr X had submitted the wrong date of birth when joining the company in the 1970s. He submitted the date of 1942, his brothers date of birth rather than 1940, his own. The Worker has since deceased and was not available to give evidence. The mistake was discovered in 2007 and the worker was promptly retired. He had not been enabled to work past retirement by the Company.

The Representative stressed that the Complainant received his state pension in February 2021 and the Company was seeking to rely on the principle of Intergenerational fairness. The Respondent did not operate an extension of working life policy. Requests to extend tenure are processed in line with the WRC Code of Practice on Longer Working.

Evidence of Ms C, Human Resource

Ms C had worked at the business for over 5 years in HR Operations. She confirmed that the Company retirement age was set at 65 and named the Pension Administrators.

She was unaware of notes arising from the November 5 meeting with the Complainant.

She confirmed that she had prepared accurate documentation which populated the appendices of the Respondent submission on training and pension.

She confirmed that

2018 3 employees retired aged 65

2019   6 employees retired under 65

2020   5 employees retired at 65 and 1 under 65

Ms C confirmed that the Pension Administrators practice is to communicate directly with an imminent retiree.

She said that the “phased out days “provided an opportunity to support a retirement at 65. The Company did not have a Policy on Longer Working.

Ms C disputed that a former named worker had been granted permission to stay on. His real age was only established when retirement was approaching. The Pension Administrators had placed a focus on validation of an employee’s date of birth not previously applied in the 1970s.

 The Retirement preparation courses were optional.

She confirmed that the step-down days were not committed to paper and were not compulsory. she denied that a named employee had not availed of them.

She affirmed that the retirement age had not been challenged by the Union. 450 employees were members of the DB pension scheme, 91 were active beneficiaries, and 60 are due to go throughout Ireland. The Complainant was the first application for longer worker received at the business.

Ms C contended that the complainant’s application had been dealt with fairly and had been assessed on objective grounds in line with SI 600/2017. She did not consider that the vacuum in face-to-face meetings constituted discrimination.

Ms C confirmed that specified purpose contracts are used for seasonality at the business. These contracts carry an option to join the defined contribution pension if employees wish to opt in.

Evidence of Mr X, Director of Human Resources

Mr X had worked with the business for 15 years. He confirmed that there were 10 plants worldwide and the plant at the centre of this case was “the jewel in the crown”

The Company had overseen major developmental change where employees rose from 365 to over 1,000 with exports reaching 90 countries. The average age of employees at the plant is 42 on 7 years’ service

12%   under 22

40%   20 -30

40 %   40 -50

8%        55+

The Company was proud of the long and loyal tenure, excellent conditions of employment and a pattern of child following parent at the business. 

Mr X referred to the Union / Company Collective Agreement of 1982 and distinguished the evolution of the DC scheme from the DB scheme.

He submitted that the Retirement Policy provided for early retirement at the behest of the Trustees.

The Company plan around retirement centred on Intergenerational fairness, succession planning and Regular cycles of recruitment. Staff Turnover was not high at the business. The Company was actively pursuing female talent acquisition and was committed to turning a traditionally 90% male workforce to 50;50 Male: Female by 2025.

In addressing the terms of the Pension Schemes, he confirmed that pension was payable on leaving the company at 65 with option to defer if leaving before then. The DB scheme with variable contributions by employee and company was structured as “benefit design “as the employees stepped away from the business. The majority of staff were now members of the DC scheme.

Average age of DB member 48-49

Average age     DC member   35

Mr X conducted the oral hearing of the complainant’s appeal. He confirmed that he had some difficulty in his availability over January and February 2020 as he was at work overseas.

Mr X reflected that the complainant had been a competent and excellent worker and he had sought to work to 67 to balance the application of his state pension.

The decision on retirement at 65 was a Policy decision taking account of the dignity of older worker in a chemical plant with high value food and beverage product and Inter-generational fairness.

During cross examination, Mr X confirmed the site allocation of employees in Ireland, where 900 were in Cork and 120 Dublin. There were 10 plants across several countries, worldwide.

He distinguished the social supports surrounding retirement in countries such as US, Singapore, and India.

Mr X expressed the legitimate aim of the business retirement age was to justify succession workforce planning through a blend of youth and experience

In answer to the Unions question of how the company had applied the changes in 2015 Law, Mr X confirmed that the Company had undertaken an internal review. The Union were not participant and the Company had not retained records.

In answer to the Unions question on whether the complainant could have been provided with a 2-year temporary contract? Mr X said that was not possible as in the event of being re-hired, the complainant would block the system, as the complainant would be viewed as a senior employee who would retain his permanent rights. He accepted that the complainant had not vacated a promotional position.

Mr X confirmed that he understood the complainant had been replaced by a permanent worker.

He detailed his consideration of the factors involved in the appeal

Health and Safety

Manual Dexterity /Mental Acuity

The Complainant had disclosed that he was in full health and capable of continuing. The Company did not commission a medical assessment and did not take issue with the complainant’s testament to his health.

Mr X confirmed that the Policy of Retirement at 65 was universally applied across all employees.

When asked whether the Company had considered updating this policy considering SI 600/2017, Mr X highlighted that the company and union had history of completing updates on policy together, but this request for longer working was a first instance complaint arising from changes in government policy on payment of state pension to 67 and had not prompted a change yet.

The Union concluded that a case-by-case approach had not been followed in the complainant’s case. Mr X re-affirmed that the complainant had been addressed on his individual request to extend tenure. The rule applied fairly and transparently to every grade regardless of tenure.

Mr X offered clarifications to the Adjudicator that the Plant had not been affected by impact of the National Pandemic. The Appeal was lodged orally and not committed to paper. The Company was impeded in offering the extended tenure by the complainants own permanent status which would disturb the incumbent 30-40 temporary contracts. Fixed term contracts were linked to volume of work and seasonality.

 The Retirement age of 65 was a Policy decision but was not contractual.

Ireland was the sole EU Plant amongst the 10 worldwide plants. 

 The Respondent representative emphasised that written reference to a normal retirement age of 65 in the DB pension scheme on page 5 of the Company explanatory pension booklet, June 2002. The complainant was an annual recipient of a pension statement which detailed his retirement date.

At least 95 employees have retired aged 65 and this reflected application of the custom and practice test in O’Reilly v Irish Press [1937] 71 ILTR

…. It is necessary in order to establish a custom of the kind claimed that it be shown that it was so generally known that anyone concerned should have known of it or easily become aware of it.

The sole exception was the mistake surrounding an employee’s brother’s birth cert. This anchors the conclusion that the complainant was on full notice of his retirement aged 65.

The Respondent relied on the jurisprudence in Transdev Light Rail ltd v Michael Chrzanowski, EDA 1632, where the contract did not have an express term stating retirement age

In calling on Eargail Eisc Teoranta v Richard Lett, EDA 1513, the Labour Court reflected that the terms of a pension scheme could be relied on in either implying retirement terms or by incorporation into the contract.

The Respondent submitted that the Company upholds a mandatory retirement age as a matter of policy and reflects the release of the occupational pension negotiated through collective agreement is a fair and proportionate measure to address these risks

The Respondent sought application of Section 34(4) on Retirement age and argued the objective means justifying the mandatory retirement age have been upheld as reasonable and proportionate by CJEU and the Labour Court

The Respondent sought consideration of

Wolf v Stadt Frankfurt am Main [2010] ECR applied in Saunders v CHC Ireland ltd DEC E-2011-142, where a genuine occupational requirement was accepted as basis for mandatory retirement.

Palacio de la Villa v Cortefiel Servicios SA C-411/05, where workers access to a financial compensation through pension at retirement was weighted in consideration and Gisela Rosenbladt v Oellerking Gebaudeereiningungssges C-45/09(Rosenbladt)

The Respondent concluded that that access to a reasonable pension on retirement was a ground on which a fixed compulsory retirement age could be objectively justified.

In reference to Fuchs and Kohler v Land Hessen, C 159/10 the CJEU held that “it does not appear unreasonable for the competent authorities of a Member State to take the view that a measure ……. Can secure the aim of putting in place a balanced age structure in order to facilitate planning of staff departures, ensuring the promotion of civil servants, particularly the younger ones among them, and prevent disputes which may raise on retirement. “

Irish Ferries ltd v Mc Dermott EDA 1631, “…. The setting of a maximum working age of 65 at this time ensures that staff are not exposed to the embarrassment of finding themselves incapable of discharging their duties and being retired in that context rather than with dignity and respect.

The Respondent concluded that

Notwithstanding the prohibition of discrimination on grounds of age introduced by Directive 2000/78/EC and its transposition into the Employment Equality acts, 1988-2015, there remains broad recognition of the right of the employer to set a mandatory retirement age, provided it meets the conditions set out in that legislation. This is evidenced by the many cases in which specific retirement ages have been upheld by employment rights bodies and courts in Ireland as well in the Court of Justice of the EU.

The Respondent sought dismissal of the instant claim.

In closing the Respondent also relied on their written submission alongside oral evidence. They re-affirmed that the Company did not accept that Mr A was an acceptable Comparator as his extension of tenure arose from a genuine error.

The Respondent furnished a excel spread sheet post hearing detailing staff intake and exit at the business over 2019/20.

I have given careful consideration to the facts submitted in this case.

The issue for decision for me is whether the Respondent discriminated against the Complainant on grounds of age in terms of Section 6(2)(f) and in contravention of Section 8 of the Employment Equality Act during his application to extend his work tenure at the business.

 I must also consider if the Respondent can rely on the application of Section 34(4) of the Employment Equality Act in this case?

It is an important consideration that the parties accept that this was the first formal request by an employee to extend their tenure beyond retirement age. This was confirmed by both Ms C and Mr X in evidence.  

In arriving at my decision in the case, I have taken account of all evidence adduced and submissions tendered followed by application of case law to the facts of the case.  I have had due regard to the provisions of SI No 600/2017 Code of Practice on Longer Working, December 20, 2017.I have also considered the respondent post hearing spread sheet on those hired at the business over 2019 and 2020 and the Union response.

It is important for me to outline from the outset that Ireland does not have a Mandatory Retirement Age.

Burden of Proof:

Firstly, I need to explore   whether the Complainant has satisfied the Burden of Proof set down for cases of alleged Discrimination? This test is set down in Section 85A of the Act:

Where in any proceeding’s 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, it is for the Respondent to prove the contrary

It is not disputed between the parties that the Complainant retired on the mandatory retirement age practiced at the company on his 65th birthday, 2, February 2020. This date was corrected on the complaint form, which initially listed the date of 2 April 2020 as the date the employment ended. He received the discretionary step-down days in a block form, November -January 2020.

The matter of the conclusion of employment was under appeal on that date as the complainant had sought an extension of tenure to age 67. This had been denied and was not granted on appeal in April 2020.

I am satisfied that having heard from the parties; I can identify facts of sufficient significance for me to infer discrimination at this point. The Complainant was retired through a rule on retirement age operational at the company, where the company operated an upper limit of age 65 from where compulsory retirement followed. I accept that they also operated a rule which allowed for early retirement with deferred pension status. This stood against the backdrop of a live application to extend tenure made in accordance with the SI/600/2017.

I have concluded that the complainant’s employment ended because of his age.

The burden of proof is now allocated to the Respondent to rebut the presumption of discrimination.

Section 34(4) Employment Equality Act, 1998

Council Directive 2000/78/EC established the “Framework Directive” which sought to establish a general framework for equal treatment in employment and occupation. Article 4 provides for a derogation from age discrimination is there is a “genuine and determining occupational requirement”. Article 6 provides for a two stage Test on whether age discrimination is justifiable, firstly, whether it is objectively and reasonably justified by a legitimate aim; and secondly, whether the means of achieving that aim are appropriate and necessary.

Recital 25 emphasises that it is essential to distinguish between differences in treatment which are justified, by legitimate employment policy, labour market and vocational training objectives and discrimination, which must be prohibited.

In considering this broader social and economic policy, I will have regard for what category of policy considerations can justify discrimination. I will also consider who decides upon them and how they are applied to any individual person? Lady Hale in Seldon V Clarkson Wright and Jakes [2012] UKSC 16,

The provisions of the Directive were incorporated into The Equality (Miscellaneous Provisions) Act, 2015 which amended Section 34(4) of the Act to read:

It shall not constitute discrimination on the age ground to fix different ages for the retirement (voluntarily or compulsorily) of employees or any class or description of employees if (1) It is objectively and reasonably justified by a legitimate aim and (ii) the means of achieving that aim are appropriate and necessary.

Statutory Instrument 600/2017 the Code of Practice, 20 December 2017, on longer working came into being on foot of a recommendation of the Report of the Interdepartmental Group on Fuller Working Lives, 2016. The WRC was requested by the Minister to prepare a code of practice around the issue of longer working, setting out best industrial relations practice in managing the engagement between employers and employees in the run up to retirement age in the employment concerned.

The Code in its preamble forecasts a growth in expression of interest of employees seeking to work beyond age 65.

It provides a guidance structure to employers and employees on best practice in managing such requests mindful of the overarching statutory and legislative frameworks surrounding retirement and pension benefits. In Baranya v Rosderra Irish Meats Group ltd [2021] IESC 77, the Supreme Court found the dichotomy of protected disclosure as excluding a personal grievance was not incorporated in the Presiding Protected Disclosure Act 2014.

 In the instant Code of Practice referred to above, both parties remarked on its application in the case. The Complainant cited it as the motivator for him applying to extend his tenure in the first instance. The Respondent cited it in the context of having reviewed its applicability at the business and in its decision not to disturb the mandatory retirement age operational at the business.

What is undisputed is that the Union and Company did not at any time collaborate on the document and what it meant for the business. The review undertaken by the respondent was not retained.

The area of Mandatory retirement age in employment law has sparked interest locally, nationally, and through to the Court of Justice in Luxembourg.

In “Too Old to Work” Bar Review, 2020, 25(2) Katherine Mc Veigh, BL engages in a chronological progression of national and CJEU cases and refers to Mc   Kechnie J consideration of Donnellan v the Minister for Justice [2008] IEHC 467, which held that the retirement age of 60 for Assistant Garda Commissioners was objectively justified.

“National measures relating to compulsory retirement ages are not excluded from consideration under [the Framework Directive]. Any discrimination with regards to age must, as put by that Directive, serve a legitimate aim or purpose, and the means taken to achieve that purpose must be appropriate and should go no further than is necessary, i.e., they should be proportionate”.

Mc Veigh also captured the passing of the Public Service Superannuation Act, 2018 where the retirement age moved from 65 to 70 for most public servants, with exceptions in the President, Judiciary.

The National Commission on Pensions has also commenced work on the benefits payable on retirement at 66 years and is considering the prospect of where current retirees are obliged to sign on for job seekers benefit as a bridging payment prior to securing the state old age pension.

Both parties submitted references to a number of high-profile cases at both domestic and EU level.

The Court of Justice of the EU has addressed the exploration of the concept of Age Discrimination through the prism of a number of cases.

While the UK has exited the EU, the following case makes for interesting reading and contains a similar base line from where the Complainant set out, that of an employee, in that case, a Partner in a Law firm seeking an extension of tenure for 3 years post normal retirement age.

In Seldon V Clarkson Wright and Jakes [2012] UKSC 16, Lady Hale and members of the UK Supreme court, considered this applicable jurisprudence, when they considered the claim for age discrimination by a Partner in a Solicitors firm who sought to extend his tenure for three years for financial reasons.

All the references to the European Court discussed above have concerned national laws or provisions in collective agreements authorised by  national laws.  They have not concerned provisions in individual contracts of  employment or partnership, as this case does. However, the Bartsch case, mentioned at [2] above, did concern the rules of a particular employers’ pension  fund; and the Prigge case, [49] above, concerned a collective agreement governing the employees of a single employer, Deutsche Lufthansa.

 I have incorporated Lady Hales synopsis of the Legitimate aim relied on a first step argument in the following cases, many of whom were referenced by the parties at hearing in the instant case.

(i) promoting access to employment for younger people (Palacios de la Villa, Hütter, Kücükdeveci); (ii) the efficient planning of the departure and recruitment of staff  (Fuchs).

  (iii) sharing out employment opportunities fairly between the generations (Petersen, Rosenbladt, Fuchs); (iv)  ensuring  a  mix  of  generations  of  staff  so  as  to  promote  the  exchange of experience and new ideas (Georgiev, Fuchs); (v) rewarding experience (Hütter, Hennigs); (vi) cushioning the blow for long serving employees who may find it hard  to  find  new  employment  if  dismissed  (Ingeniørforeningen  i  Danmark);  (vii)  facilitating  the  participation  of  older  workers  in  the  workforce   (Fuchs,  see  also  Mangold  v  Helm,  Case  C-144/04  [2006]  1  CMLR  1132);   (viii) avoiding the need to dismiss employees on the ground that they are no longer capable of doing the job which may be humiliating for the employee concerned (Rosenbladt); or (ix)  avoiding  disputes  about  the  employee’s  fitness  for  work  over  a  certain age (Fuchs).    (5)  However, the measure in question must be both appropriate to achieve  its legitimate aim or aims and necessary in order to do so. Measures based on age may not be appropriate to the aims of rewarding experience or protecting long  service (Hütter, Kücükdeveci, Ingeniørforeningen i Danmark).  (6) The gravity of the effect upon the employees discriminated against has to be weighed against the importance of the legitimate aims in assessing the  necessity of the particular measure chosen (Fuchs).

Consideration of the facts:

I have started with an analysis of the Complainants application dated February 27, 2019. He did not allude to SI 600/2017 in this letter, yet I am satisfied that this motivated him along with the administrative gap to 66 from whence the OAP would be paid. I noted that the Complainant did not want to claim Job Seekers Benefit by way of a bridging arrangement. I understand that sensitivity. I find that the complainant ought to have flagged that he was pursuing his request under the auspices of SI/600/2017

It is important for me to reflect that the Respondent holds Industrial Peace and stability extremely highly at the business and both parties accepted the omnipresence of the 1982 Site agreement.

I found the Respondent response on 17 October 2019 referred to “not in a position to increase the retirement age from 65 … “to be slightly ambiguous.

The Complainant was seeking an individualised arrangement to extend tenure. I found that the Respondent engaged in a blanket response not tailored to the specifics of the request. This process was not accompanied by any individualised engagement, assessment, operatively medically or financially. Instead, the reasons associated with the refusal were

1 Intergenerational fairness

2 Confirmation of a fixed retirement age

3 Health and Safety obligations underpin imposed retirement

4 Awareness of the administrative gap in accessing OAP and confirmation that consideration of increasing retirement age had occurred but was not actioned

5 Confirmation that the complainant would be contacted on preparation for retirement

6 confirmations of appeal

It is important for me to reflect that the parties had not met at this point, which is a clear departure from the best practice modelled in the Code of Practice.  

 I would have liked to have heard from the Union Official who oversaw the internal process in pursuance of the employment extension. I was confused on the objective of the key meeting of Nov 5, 2019, from which no records were retained.  The Complainant left employment shortly after this meeting through the brinkmanship of the 52 step down paid days.

 The Union, at hearing associated this meeting with a parallel IR claim by the Complainant for loss of earning and the Complainant himself was clear in evidence that the topic of his requested extension was discussed there. The submission of an email from the Union Official dated 31 October 2019, signalled the complainants intention to appeal the decision. “Pat wishes to appeal the decision to deny him his request to work longer “

 For my part I noted that the HR Manager who communicated the refusal of the request to extend tenure was also present at the November 5 meeting as this was reflected in the follow up letter from the Union dated December 9, 2019. This could not therefore be safely reflected as an appropriate mechanism of appeal.

One of the first remarks I have in this case, is that it strikes me that the complainant experienced a protracted delay in addressing his request for extended tenure. I appreciate that a key member of HR was on sick leave, and Mr X had overseas commitments, however, it did not sit with me that the complainant was retired a number of months before his “second stage “appeal was heard. I would also note that the first refusal did not cross reference the Collective Agreement which came to the fore later in the case.

I would be grateful if both Union and Company could take some time to reflect on the procedural deficits in relation to the vacuum in timely engagement as it raises significant doubt in my mind on the Respondents commitment to engage in the request through the necessary principle of equality of arms. I did not have the benefit of the staff handbook for me to cross match the procedural timeframes mentioned therein.

Another point of concern for me, centred on the reference to “another level of review with respect to Pats request to work beyond his scheduled retirement age … “dated December 24, 2019. This emanated from a Human Resource Officer in transit.

I had a high level of unease on where this fitted procedurally as it was not referred to as an “appeal” in a sequential sense. For me it was an anomaly.

 This process manifested as the appeal of March 3, 2020, lasted 18 minutes. This was one month after the complainant had been retired and a number of months after he had left the workforce. This platform at which sought the Complainants re-instatement and was not prefaced by written grounds for appeal. Instead, the grounds were articulated orally, it seems. This was confirmed by the Complainant in his evidence and based on:

1 His desire to continue to work as he is still fit, healthy and capable

2 Administrative gaps in receiving OAP

“All I am looking for is a 2-year fixed term contract as I’m finding it hard to sign on. I’m fit play football, basketball and I find it hard personally to sign on knowing that I am capable “

At this meeting the complainant confirmed that he was aware from the house agreement that retirement was age 65. He qualified this by pointing to deficits in his pensionable service by 10 years temporary working. He confirmed he was seeking a two-year extension and was flexible in role function. He confirmed he was prepared to defer pension, if successful.

The Respondent furnished their response some one month later.

The Response reflected

1.       March 3 as the Appeal mechanism.

2.       Health and Safety critical. An established mandatory retirement age reduces the risk for errors in the manufacture of human use products in a highly regulated setting.

3.       Employee dignity could be eroded in the requirement to carry out compulsory medical assessments /performance management processes

4.       Inter-Generational Fairness

5.       Complainant awareness of retirement through employee and union rep status

6.       Company benefits in preparation for and during retirement

This concluded in:

There are no objective justifications available to facilitate your request by placing you on a fixed term or specified contract currently.

The case was referred to WRC by the Union some two weeks later.

Further Consideration of the Evidence adduced:

In my reflection of the Complainants evidence, I was struck by his honest approach to his request to work on. He accepted that the company practiced a mandatory retirement age and pointed to the exception of his named comparator in 2007, who retired aged 67 through misrepresentation of a familial birth cert.

 I was struck by the void in the company interface with the complainant in preparation for retirement. He was not afforded the step-down days in the way they were designed to apply, i.e., in a phased fashion. I accept his point that he really had no interest in those days as they collided with his hope to stay on at work. He did not attend the pre -retirement as he didn’t see himself in “the departure lounge “of the business. Instead, it seems, he kept his head down hoping for a breakthrough in his favour in the Company decision making.

I note that he could not recall his last Company sponsored medical check.

I also note that he had a major shortfall in pensionable service through an extended period in temporary service.

In reflecting on the Respondent evidence, I was struck by the lack of any visible linkage of “the step-down days “to a policy or procedure at the Company. I asked Ms C where I might find them documented? This mechanism of 52 paid days was not written down anywhere. That concerned me.

I note that Mr X acknowledged that 80% of the workforce rests within the 20-50 age bracket with just 8% over 55.

The 1982 Agreement entered by the parties refers to a closed shop status for the Union  and in Article 17 provides that

Employees will qualify for the Pension, Disability and Life Assurance Plan in accordance with the provisions of that Plan. That was the sole mention of pension that I could establish

The 2002 Explanatory Booklet on Pension dated June 1, 2002, refers to normal retirement date as your 65th birthday. Evidence of date of birth was required.

My attention was drawn to the section on retirement benefits:

What is my Pension?

If you retire at age 65 your pension plan will be   X amount calculated by formula

From age 65, your overall pension will come from two sources

Plan Pension and OAP.

The Agreement relied on by the Respondent does not mandate retirement and has stood unaltered from 1982 . I cannot identify it as amounting to a Collective Agreement as provided for in S86 of the Employment Equality Act .

The Pension  document does not take account of the statutory changes applied to age of access to OAP as they are based on observations and predictions grounded in 2002 and not the 2019/2020 timeline against the backdrop of the occurrences in this case. I found some reference to a deferred pension linked to sub 65 years old.

I found an interesting sentence in the Amendments and Termination section which committed the company to maintaining the Pension plan but added:

However, changes in legislation and other extreme and unforeseen circumstances could make it necessary or desirable to amend the rules. This had the potential to alter or sever the Company participation in the scheme. 

I appreciate and accept the Respondent evidence that the DB is now closed to new members, while the DC is currently operative. This, for me is evidence of a discretion to change and diversify as market forces dictate.

The Complainant has not approached this case with a reliance on a lack of knowledge of the retirement age practiced at the company. He accepted that he was expected to leave at age 65. He did not dispute receiving annualised statements from the pension provider. He did confirm and I believe him that he was not prepared for retirement by the pension providers. I also believe the company when they rely on the complainant’s invitation to a pre-retirement initiative. It just seems to me that there was no contingency to guide the complainant when he did not attend the course.

I have analysed the spread sheet on new hires 2019 /2000. I sought this information as both parties fully recognised the role that annualised fixed term workers played at the business, and I wanted to understand why those roles proved elusive to the Complainant.

I saw many new hires and returned workers in the period January 2020 - November 2020. All of whom were younger than the Complainant.

I was struck by Mr X truthful analysis of how this employment could not, in the mind of the company automatically be conveyed on the complainant, given his senior and permanent status. The Complainant did not share this view as he had offered to diversify in role and tenure if allowed to remain.

 I understand that the 2007 retiree aged 67 did not have a fixed term contract.

I began to reflect on the presence of the 1982 Agreement which predated most of the now highly relevant EU Employment Legislation. I have concluded that no Agreement should be immutable or immune to the force of time or legislative changes.

I have thought about the Comparator, now deceased, relied on in the case and while, I understand his evolution to extended tenure was built on a mistake and his personal misrepresentation. Nonetheless, it is true to say that the Company has hosted a retiring worker aged 67. It is of importance for me to reflect that an evaluation of this 2007 experience was not put to the Complainant in any measured way as a reason to militate against an extension.

I now must decide whether the Respondents stated legitimate aims of fixing that retirement age at 65 are objectively justified and whether the means of achieving that aim are appropriate and necessary?

The compulsory retirement age was not expressly set out in either contract of employment. In Chrzanowski, the Labour Court held that the compulsory retirement age could be deemed to be an implied term of the contract because of established custom and practice by consistent application since 2010. In the instant case, the 2002 pension document reflected date of birth record as a prerequisite to accessing the scheme. The comparator cited retired in 2007 aged 67. There was an exception to that rule.

In the above case, the employer successfully relied on “safety critical “nature of the role of the Luas Driver alongside Intergenerational fairness and the Railway Safety Act, 2005. To that end, the employer sought medical advice on two occasions.

The Respondent in this case sought an alliance with Wolf, Saunders and Chrzanowski in terms of genuine occupational requirement for the role. These cases are vastly different from the complainant’s role, although, not supported by job description, was undisputed when he explained that he was transferring salts in the course of his work. He was not as in Mc Dermott, engaged in the arduous work of a Docker.

Mc Dermott

1) The respondent had a retirement age which was universally applied to the category of staff whose work is physically demanding and the terms were contained within a pension scheme.

(2) The actions of the respondent in setting a mandatory retirement age were objectively justified in the circumstances as the work was arduous in nature and became increasingly difficult with age. It also prevented employees from being exposed to being incapable of discharging their duties and being retired otherwise than with dignity and respect.

(3) The retirement age as set by the respondent applied in this case was necessary, reasonable, and proportionate as per s.34(4) of the Act and accordingly amount to objective justification for the maximum retirement age of 65.

 He was not, like Chrzanowski party to an 8-month lead in time to source his replacement so that he or she would be trained up in time. The Complainant was unsure who replaced him. The Respondent felt sure that he was replaced by a permanent worker. The Complainant was not in a promotional post.

Crucially, in this case, the Respondent did not request any medical, risk or operational assessments of the complainant in his day-to-day role. Chrzanowski case demonstrated through medical evidence that the ability to operate a tram safely diminishes with age and data was produced showing trends of increased absences due to illness in those aged more than 60.

 The Union relied on Roper in the case. I noted that the Respondent in Roper had hosted several post age 65 fixed term contracts linked to specific functions. I accept that the Respondent just hosted one exception, albeit unwittingly in 2007. 

I understand that the Respondent has acted in the perceived best interests of the Company when they set out the legitimate aims   governing a mandatory retirement age. I am mindful of Donnellan in terms of those stated aims having to be both necessary and proportionate.

However, I must find that the Respondent cannot rely on Section 34(4) for the following reasons

1 Having identified that retirement at aged 65 was set down to minimise the risk for error in an ageing workforce, they did not take commensurate and objective steps to measure the complainants individualised risk of diminished dexterity.

2 In seeking to respect the complainant’s dignity in the face of the requirement to carry out medicals and performance management, the Respondent had habitually relied on company health checks, neither party placed these in evidence. The Complainant said they were unremarkable, and the Respondent recalled the complainant relying on his good health to ground his application to remain in March 2020, which was not disputed or tested.

3. I accept that the Respondent had a strong desire to continue to performance at a very top level at the business with robust workforce planning and intergenerational fairness.  However, I have found that the respondent actions in pursuance of that aim were unnecessary and disproportionate.

 The presence of the step-down days was invisible to the outside eye. For me at least they served as an invisible web leading to the one eventuality of retirement and were not grounded in the House Agreement, the contract, the pension document or elsewhere. While at first glance, they seemed a benevolent gesture, it is arguable that they are an incentivised departure at the end of a career without an apparent application process. They were not applied in the habitual formulaic fashion relied on by the respondent in this case.

4. There was evidence of major recruitment / inward mobility over 2019/2020 at the business.

5.I did not find that the Complainant was engaged in arduous work. Mc Dermott, applied.

6.The Company was engaged in active recruitment which yielded far more than the number of annual retirees. All these recruits and rehires were younger than the complainant who was in the 8%   of the work force over aged 55 at the business.

7. I noted that there was a flexibility clause in the second contract of employment.

I accept that the Company is the sole aspect of the 10 business plants operational in the EU. I respect the evidence of Mr X when he explained the societal differences in the separate jurisdictions. However, for the purposes of this case , I am considering how the provisions of  Directive 78/2000  which set up a general framework for equal treatment in employment and occupation across public and private sectors apply  in the instant employment ?

In Peterson C-341/08 protecting patients from declining performance of dentist due to age may be a legitimate aim justifying age related difference in treatment but setting a maximum practicing age of 68 for the German health service dentists is potentially lawful, but not justifiable because German law permitted private dentists to practice beyond 68. The age limit was justifiable on a different basis of intergenerational fairness, because it facilitated younger workers to join the health service.

In the instant case, The Respondent has relied heavily on Inter-generational fairness as   a legitimate aim in having a mandatory retirement age. However, the circumstances differ from Peterson for me when I consider the parties evidence on the perennial nature of fixed term contracts present at the business. The structure of fixed term contract is present and visible at the business. Ms C explained that these workers are eligible to join the DC scheme.

In Prigge and Or’s v Deutsche Lufthansa C-447/09 the Grand Chamber, adopted a narrow interpretation of Article 6(1) of the Directive. It held that the reference to social policy aims related to employment policy, the labour market or vocational training meant that air traffic safety does not fall into the remit of Article 6(1) as air traffic safety was not a relevant legitimate aim for this purpose. German law provides for retirement at 65 for pilots and so an earlier age of 60 through collective agreement could not be deemed necessary to achieve that aim. They did not identify a genuine occupational requirement

I must conclude that I found that Prigge had a solid application in this case. I found that the respondent did place a blanket ban on working post 65. The review undertaken post SI 600/2017 was not undertaken conjointly with the Union and did not anchor any planned conjoined engagement on the topic. Yet the House Agreement has a clause permitting further negotiation.

Instead, I find that the Respondent sought to rely on legitimately stated aims to provide a rationale for a mandatory retirement age, but the means practiced to that end were neither necessary nor proportionate. I found that the company presented as being fearful of managing a transition to the work patterns reflected in the Code of Practice to help address the transition to the state pension retirement age moving to 66 rather than 65.

 I wonder if the Company viewed the Complainant as a “trojan horse “type approach that individual concession may lead to an “opening of flood gates “? I found Mr X very genuine in believing that the pathway to fixed term contract was solidly impeded by pre-existing permanent tenure. Once again, I saw the respect for industrial peace at the company and no desire to disturb that by either party.

 I believe that the Union ought to have considered the application of SI 600/2017 much sooner in this case as the complainant has indeed come across as a veritable lone pathfinder in that regard.

It is not my intention to seek to elevate the Code of Practice to a Statutory footing, Rosderra refers. I merely seek to make the point that it is a helpful navigation tool in a changing world of work patterns in longer working.

In conclusion, I was dissatisfied with the delay in processing the complainant’s local grievance at the company to the point where it became akin to an almost academic exercise, one month after his official retirement. I was also dissatisfied by the lack of an individualist and supportive approach which was overtaken by a stereo typical reliance on retirement at aged 65. This collided with the principles of Equal Treatment envisaged by the Directive.

I am also dissatisfied at the gap in evidence surrounding the November 5, 2019, meeting, its stated objective, function, and lack of records.

It is regrettable that the Complainant was left feeling “cast aside “after a fulfilling career. That defeats the argument of dignity relied on by the Respondent in the stated Legitimate aims.

I find that the Complainant was treated less favourably on age grounds, when he sought to extend his tenure from his 65th birthday.

I must find that the provisions of Section 34(4) cannot save the Respondent on this occasion.

 I understand that the Complainant has received the terms of his pension paid by the Company. I am mindful of the differentiation in both DC and DB contributions by the Company. I accept that the complainant did avail of a lump sum on retirement, but he did not retire on a full pension due to his temporary years. He did not find a resolution to help him operate a bridge to the qualifying state pension age at 66 or to continue to work on at the business.

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.

I have completed my investigation in this case and have found that the complainant received discriminatory treatment on age grounds when he sought to extend his tenure beyond his 65th birthday in February 2020. The Respondent did not act in compliance with Section 34(4) of the Act when they applied the mandatory retirement age of 65 to the Complainant which was not objectively and reasonably justified by a legitimate aim and the means of achieving that aim were not appropriate and necessary.

It is now two years since the Complainants employment ended. I find that Compensation is the most practical remedy open to me under this section.

1.       I order the Respondent to pay the Complainant €40,000 (40 weeks’ pay) in compensation for the effects caused by the discrimination by his former employer. This award is tax exempt.

2.       I also require the Respondent and the Union to engage in a collaborative exercise on the provisions of SI 600/2017 on Longer Working in the best interest of both parties within a 3-month period of the date of this decision.

Discrimination on age grounds