Complainant

Respondent

Parties

Kevin J  O'donovan

Prenco Manufacturing Ltd

Representatives

Andrea Cleere SIPTU

Scott Jevons TO ISSUE BY EMAIL TO: cases@ibec.ie

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00038504-001

03/07/2020

The Complainant worked as an engineer/CNC setter from 1981 until his dismissal on 22nd June 2020.

The Complainant was employed with the Respondent until his sixty-fifth birthday. He never received a statement of written terms of employment or handbook setting out a retirement age. His role is not a general operative and he is employed at a higher rate. He operated a CNC (computerised numerical control) lathe machine which is automatic and produces fine precision steel. There is no heavy manual handling nor is his role labour intensive. He enjoys good health. There is no pension scheme in place for staff.

The Complainant requested to continue beyond sixty-five years in January 2020. In May 2020, the company refused stating the mandatory retirement age of sixty-five years has been consistently applied, his role is a manual and labour intensive role with the use of power machinery and sixty-five years is the upper safe age as contained in the company safety statement. The company also said the retirement age of 65 years allows for intergenerational fairness and younger workers to progress.

The union were not provided with a copy of the company safety statement which was not signed by the Complainant. The appeal was unsuccessful. The Complainant submits the Employment Equality Act 2015 provides a compulsory retirement age is discriminatory unless it is objectively and reasonably justified and the means of achieving this are appropriate and necessary. In order to rely on the safety statement the company should have carried out risk assessment into the individual and role, explore aging and the Complainant’s ability to continue. There is no evidence of objective justification. The company rely on intergenerational fairness as a reason for the retirement age, however, a colleague has been offered the Complainant’s role but without the equivalent pay, and the Complainant’s role has not been replaced and the company is enjoying cost savings. Five other colleagues have retired and only one replaced. The facts do not support any link between retirement and intergenerational fairness.

The Complainant relies on Anne Roper and Raidio Teilifis Eireann ADJ-00019084where the Adjudicator held that they must be satisfed that the retirement actually contributed to intergenerational fairness and limited its understanding of intergenerational fairness to ‘allowing younger workers to progress’. It found that the effect of this measure was so confined and limited that it could not accept that it was objectively justified. The Court also held that they must be satisfied that the retirement was appropriate and necessary and found instead it had a disproportionately negative effect on the Complainant in comparison to the ‘dubiously positive impact it had on her employer’ and relies on the decision in Thomas O’Mahony v Southwest Doctors On Call Limited DEC-E2014-031.

The Complainant’s claim of age discrimination requires discharge of the burden of proof under S85A of the Employment Equality Acts 1998-2016. These submissions are without prejudice to Complainant’s obligation to discharge this burden.

The Respondent is a small Irish precision engineering company which exports 98% of products. The Complainant was employed on 18th March 1981. He was provided with a contract of employment which he signed and works twenty hours part-time. Due to the extension in the pension age from 65 years to 66 years, the Complainant sought a one year fixed-term contract of employment following his retirement in March 2020. The company was closed due to Covid-19 until May 2020 when the decision issued.

The company refused a one year contract for the Complainant as the retirement age of 65 years has been consistently applied since the plant was set up in 1975, his role is manual and labour intensive in nature, the company safety statement requires a retirement age of 65 years since 2013, and due to intergenerational fairness to allow younger workers to progress, advance and obtain the skill-set. The Complainant appealed the decision which was upheld by a Company Director due to health and safety of employees using power tools in confined and crowded areas.

The Complainant is a former shop steward who never disputed the retirement age of 65 years previously. He signed the safety statement in 2019 which contains the retirement age. An internal candidate has backfilled the Complainants position so there is no cost saving to the company. Contrary to what the Complainant’s representatives say the majority of roles where staff have retired have been backfilled.

The Respondent relies on the decision in Felix Palacios de la villa v Cortefiel Servicios SA 441/05 where the European Court said a mandatory retirement age used to absorb high unemployment and to provide better distribution of work among generations was objectively justified and achieved through proportional means. The Respondent relies on the decisions in Irish Ferries v M McDermott EDA 1631 where an age discrimination claim was not upheld by the Labour Court as the retirement age had been agreed with SIPTU, Paul Doyle v ESB International DEC-ES2012-086 and Fuchs & Kohler v Landhessen C15910/C-1610/10 and deny the complaint of age discrimination.

The Complainant complains he has been discriminated against by the Respondent in terms of S6 (2) (f) of the Employment Equality Acts 1998-2015 in dismissing him for discriminatory reasons due to his age.

In reaching my decision I have taken into account the written and oral submissions and evidence given in the course of the hearing.

S6 of the Employment Equality Acts 1998-2015 states that discrimination occurs where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds which exists, existed but no longer exists, may exist in the future or is imputed to the person concerned. The “age ground” is where individuals are of different ages.

S34(4) of the Employment Equality Acts 1998-2016 provides

“Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily of 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.”

The burden of proof is set out in Section 85A (1) of the 1998-2016 Acts which provides:

“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.”

Only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent.

The Complainant is a Computerised Numerical Control lathe machine operator who was employed by the company from 18th March 1981 until 22nd June 2020 when his employment was terminated due to his reaching 65 years of age. At the time the Complainant was working twenty hours a week. The Complainant’s contract of employment does not contain a retirement age. A new Company Safety statement for the factory was introduced in 2013. This was signed by the Complainant in 2019 and states “Factory work duties are considered to be physically intensive and the company retirement age of 65 is considered to be the upper safe age limit for performance of such duties.” The Complainant gave evidence that he is fit and healthy. He sought to work for one more year on a fixed-term contract as he will not receive a social welfare pension until he is 66 years.

The Complainant has raised a prima facie case of discrimination, and the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

The Respondent refused the Complainant’s request for a one year extension on the grounds:

1 that the company has a mandatory retirement age of 65 years which has been consistently applied since the plant opened;

2 the role which the Complainant holds is considered to be a manual and labour-intensive role involving the use of powered machinery and 65 years is deemed the upper safe age in terms of the continued strain and effort required for performing such duties;

3 and the principle of intergenerational fairness is important to the company to allow younger workers to progress.

The Respondent’s Manager gave evidence that a sixty-five year retirement age has been consistently applied since the company was established. The machine the Complainant works on was replaced in 2018. The Complainant was offered more advanced training in the UK in 2019 but he did not take this up as he was retiring. He said an external company was employed to upgrade the companies health and safety statement in 2013 when a retirement age of 65 years was incorporated into the safety statement in 2013 for all staff in the factory. The Complainant’s role involves physical tasks loading raw materials in and out of the machine which are stored in boxes of up to 15kg. The company made submissions that the factory operates a large production hall which is a confined space where machines are beside each other.

The Manager gave evidence another member of staff was already backfilling the Complainant’s role for two days a week, and was not paid the premium rate for the days worked. He said the job was sought after by other members of staff. The Complainant’s full-time role was subsequently replaced at a higher premium rate. The Manager said the last six people who retired, were all replaced by the company. He said the new CNC machine was a level above the Complainant’s expertise as he did not participate in the training.

The Respondent’s Director upheld the refusal of a one year fixed-term contract for the Complainant. He said the company is small and has a lot of staff with long service. The company does not want too old a workforce and retirement is an opportunity to refresh and renew. The Director said there was no formal recruitment or promotion policy.

The Complainant gave evidence that the physical aspects of his role are bolting and lifting. The lifting is not onerous just awkward. It is not demanding. He was not aware of any risk assessment or medical assessment carried out in relation to his role nor was he asked questions regarding his tasks. He wanted to work on as he is fit, and due to the change in social welfare pension age which was due to move to 67 years. He was aware that twelve people retired and some of these were replaced.

The Respondent has a retirement age of sixty-five years which has been consistently applied since the plant opened. In Felix Palacios de la villa v Cortefiel Servicios [2007] ECR I-8531 the European Court upheld the right to a mandatory retirement age where this is objectively and reasonably justified by a legitimate aim and the means of achieving the aim are appropriate and necessary.

The Respondent says it obtained a risk assessment and safety statement from an external health and safety provider in 2013 which advised all factory roles are labour intensive and involve manual handling so retirement at 65 years is required. I sought a copy of the company risk assessment and safety statement, but it was not provided by the Respondent. No evidence was provided of the reasons that a retirement age of 65 years is required for the Complainant’s role nor of the impact of aging on ability to carry out the role.

The Respondent also relies on the aim of providing intergenerational fairness to staff in its retirement policy so younger staff obtain skills in different roles and progress. This is a legitimate aim. The company submitted the average age of employees is 49 years and staff attrition is low, so the opportunity to renew and refresh staff is low and occurs on retirement. The Respondent does not have any formal promotion or recruitment policy. No evidence was given of any procedure for career progression for younger staff to advance and obtain other skills. The Complainant gave evidence he was in a general operative role when he commenced working with the company. The only opportunity he was offered was the move to operate the CNC lathe machine. I am conscious of the words of Lady Hale in Seldon v Clarkson, Wright & Jakes [2012] UKSC 6 :

“It is one thing to say that the aim is to achieve a balanced and diverse workforce. It is another thing to say that a mandatory retirement age of 65 is appropriate and necessary to this end. It is one thing to say that the aim is avoid a need for performance management procedures. It is another thing to say that a mandatory retirement age of 65 is appropriate and necessary to this end. The means have to be carefully scrutinised in the context of the particular business concerned in order to see that they do meet the objective, and there are not other less discriminatory measures which would do so”.

Although the company’s aim to ensure intergenerational fairness is legitimate, I am not convinced that the retirement of the Complainant without appropriate consideration of his ability to continue or take up an alternative role in the company for a period of twelve months after reaching 65 years is proportionate, particularly given the impact on the Complainant who did not have a pension. There were no performance concerns regarding the Complainant who is in good health.

The Respondent has failed to discharge the burden of proof. I find the Complainant was dismissed due to age discrimination when he was retired at 65 years, and award compensation of €16,120.00 to the Complainant in respect of the discrimination and direct payment by the Respondent.

I find the Complainant was dismissed due to age discrimination when he was retired at 65 years, and award compensation of €16,120.00 to the Complainant in respect of the discrimination and direct payment by the Respondent.

Age discrimination, health & safety, intergenerational fairness, grievance procedure