Complainant

Respondent

Parties

Michael  O Mahony

University Of Limerick

Representatives

Ibec

Act

Complaint Reference No.

Date of Receipt

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

CA-00042358-001

06/02/2021

The complainant worked as a Student Counsellor with the respondent, delivering 19 hours per week, in respect of which he was paid a gross salary of €38,874 per annum.  He alleges discrimination on grounds of age and discriminatory dismissal by reason of his age when he was compulsorily retired on 9 March 2021.

Preliminary Issues

Time Limit

The complainant felt it was correct to submit the complaint when he received notice from the respondent of its intention to terminate his employment on 9 March 2021. He is not a lawyer and did not know that a complaint should be referred after the dismissal.

Substantive Issue

Oral Evidence

The complainant described his enjoyment working as a student counsellor for the University. He has over 53 years’ experience working with young people and continues to work in his own private practice.

In September 2019, the complainant met with two members of the HR team. He was advised that he would have to retire in two weeks’ time as he was over the retirement age applicable to him. The complainant spoke to his solicitor who advised him he was not required to retire at 65. The complainant’s solicitor then spoke with Ms Twomey, Deputy HR Director, and the complainant was permitted to continue working.

At a subsequent meeting, it was suggested by the respondent to the complainant that he could continue to work as a student counsellor but under the employ of Unijobs, an agency. This was unacceptable to the complainant. The hourly rate of pay would be less than what he was earning as a direct employee.

Following the intervention of his solicitor, the complainant thought the matter of his retirement was resolved and that he could continue to work until the age of 70. There was no mention of retirement or a termination date thereafter until the letter of 12 January 2021.

The complainant was engaged by the respondent as an independent contractor for 17 years. During that time he did not take breaks with employees of the respondent and was not privy to staff contractual or union matters. He was aware that some people retired at 65. There were 3 other counsellors who worked with him. None of these persons have reached retirement age.

While on sick leave following surgery, the complainant received a letter dated 12 January 2021 from the HR Director, Mr F, giving notice of termination of employment. In this letter, the complainant was reminded that he was aware since September 2019 that he should have retired on 30 September 2017. It further advised that as 39 months had now elapsed since this date, it was essential that the respondent bring the complainant’s employment to an end in line with instructions from the Department of Education. The complainant was advised that the date of termination was 9 March 2021. The complainant retired on this date.

During the complainant’s period of sick leave, the respondent hired three additional counsellors.

The complainant wanted to work until he was 70. He was fit and capable of doing so. His age was held against him. It was important to him as a respected hard-working member of staff that he be treated with dignity and respect. The manner of his dismissal was a sad way to end what was otherwise a very happy and rewarding career with the respondent.

Cross -Examination

The complainant accepted that he had been found to be in insurable employment since 1 January 2001; that members of the HR department had tried to regularise his employment as a direct employee since 1 January 2019; and that he had been issued with a contract of employment late 2018/early 2019 which he did not sign.

The complainant said he was not aware that the intention of the respondent in offering him employment with Unijobs was in good faith and proposed as a way of retaining his services while meeting the legal obligation on the respondent to retire him from employment. The complainant accepted that the reason the rate of pay was lower with Unijobs was because it was an employee rate. It was put to the complainant that he enjoyed a higher rate of pay because he was permitted to retain the higher Independent Contractor hourly rate. It was put to the complainant that the only reason he was not afforded critical life cover/income continuance was because it is a benefit that only applies up to the age of 65.

The complainant accepted that the employment of other counsellors during his sick leave was in response to the growing student population and he welcomed that.

The complainant did not accept that the delay in effecting his retirement was due to the ongoing negotiations with the University in relation to his contract and contractual entitlements. Nor did he accept that a mediation process during this time included his retirement as one of the issues for resolution.

Closing Remarks

This complainant stated that this whole situation arose because of the SCOPE and Revenue determinations, which were something akin to Brexit. Everything concerning his new employee status and the implications of same were confusing and uncertain. The complainant was focused on his work and assisting distressed students. He did not know the terms of an employment contract or the retirement age which would become applicable to him because for 17 years he was not regarded as an employee and accordingly did not concern himself with employee matters.

Representative for the respondent read the respondent written submission before taking the Deputy HR Director, Ms Anne Twomey, through her evidence.

Respondent Written Submission

Preliminary Issues

1.       Time Limits

The complaint was presented to the Workplace Relations Commission on 6 February 2021 which was before the complainant’s dismissal on 9 March 2021. Accordingly, the complaint was not presented to the Workplace Relations Commission within 6 months beginning on the date of contravention to which the complaint relates.

2.       Named Respondents

The respondent was carrying out its statutory obligations under Acts of the Oireachtas in requiring the complainant to retire. The respondent could not act independently in this regard and to name it as the sole respondent is fruitless. The respondent referenced Horgan and Keegan v Minister for Education and Skills, The Department of Finance, The Department of Public Expenditure and Reform, Ireland and the Attorney General, C154/18, [2019] IRLR 597 as an example of a case where more than one respondent was appropriately named.

3.       Jurisdiction of the Workplace Relations Commission

The respondent does not have the power to disapply an Act of the Oireachtas. The Workplace Relations Commission does not have simple carte blanche as regards disapplying an Act of the Oireachtas. This is the only possible outcome in favour of the complainant by the Workplace Relations Commission. The respondent cited the Supreme Court decision in Boyle, Cotter and Fitzpatrick v The Minister for Justice, Equality and Law Reform and the Commissioner of An Garda Siochana and the Workplace Relations Commission [2017] IESC 43 and the consideration of the latter case before the CJEU; and Palacios de La Villa, C-411/05 – 2007 in support of this preliminary argument.

Substantive Issue

The complainant was engaged in January 2001 as an Independent Contractor. A SCOPE (10 April 2018) and Revenue (31 October 2018) determination found him to have been in insurable employment from 1 January 2001.  He was placed on payroll on 1 January 2019. From the latter date to September 2019 efforts were made to regularise the complainant’s employment and agree a contract of employment. A written contract was not finalised.

Given the complainant was now regarded as a public servant employed prior to 1 April 2004, a compulsory retirement age of 65 years applied to him.

On 5 December 2017, the government made a policy decision to revise the compulsory retirement age for public service employees recruited prior to 1 April 2004 to the age of 70. This was given effect by the Public Service Superannuation (Age of Retirement) Act 2018. However, this Act excludes from its scope any public servants who had or should have retired prior to the date of enactment (26 December 2018). Therefore, the complainant’s retirement age was not extended to the age of 70.

The respondent engaged with the Higher Education Authority (HEA) regarding the complainant’s new employment status and pension entitlements. On 20 September 2019, the respondent Pensions Manager wrote to the complainant to explain that the HEA determined he is to be treated as a “Non-New Entrant” for pension purposes. Based on the rules of this scheme and given his date of birth as 31 July 1952, his compulsory retirement date should have been 30 September 2017.

The complainant was advised of a retirement date of September 2019. Permission was sought from External Staff Relations of the Department of Education & Skills to extend the complainant’s employment. The response received was that, although the complainant was not deemed to be an employee on 30 September 2017 (the date he should have retired in line with the pension scheme rules), once he had been deemed an employee, the respondent had a contractual obligation to affect the retirement as soon as possible.

The complainant’s solicitor wrote to the Head of Equality & Diversity on 23 October 2019. Following that intervention and up to March 2021 efforts were made to resolve the issue around his contractual rights and retirement date without success. Notice of a retirement date was eventually issued to the complainant on 12 January 2021 and his employment ended on 9 March 2021.

The respondent’s written submission addressed the issue of the burden of proof and the absence of a comparator in this complaint. Various legal sources and authorities were also presented in the written submission including: Council Directive 2000/78/EC; Employment Equality Acts 1998-2006; Felix Palacios De La Villa v Cortefiel Servicious SA44/105; Bilka v Von Hartz (C 170/84) 1986; Rinner Kuhn v FWW C 171/88-1989; Mangold v Helm C-144/04-2005; Fuchs v Land Hessen C-159/10-2011; Unland v Land Berlin C-20/13-2014; and Irish Ferries v Martin McDermott EDA 1631.

Oral Evidence of Ms Twomey

Ms Twomey joined the HR function in April 2019. The respondent accepted the SCOPE and Revenue decision regarding the complainant’s employment status. The HR function was required to liaise with the HEA regarding the complainant’s retirement age. This took time. The HEA confirmed that the respondent had a contractual obligation to retire the complainant as soon as possible.

Ms Twomey was contacted by the complainant’s solicitor regarding the complainant’s retirement age and other contractual matters such as annual leave and sick leave entitlements (the latter was the subject of a separate Workplace Relations Commission hearing). Ms Twomey agreed to speak with the HEA and Department of Education & Skills (as it was known then). The position of the HEA and Department was that the complainant was not a “new entrant” and accordingly a retirement age of 65 applied to him.

From October 2019 to before the complainant’s retirement, the parties were engaged in mediation. The issue of retirement was one of the issues for resolution within the mediation process. The process was delayed due to COVID-19. Ultimately, the mediation process was not successful, and the issue of retirement was not considered.  The other disputed matters relating to leave were dealt with at a Workplace Relations Commission hearing.

The respondent is obliged to report staff numbers and other matters annually under the Employment Control Framework. This prompted the issuing of notice of retirement to the complainant on 12 January 2021.

The retirement age of 65 in the Public Sector is well known, not only within the university, but publicly. The respondent is obliged to implement the law and accordingly had to retire the complainant.  The respondent respected the complainant and sought to work around its legal obligations by suggesting the complainant become an employee of Unijobs. This was not acceptable to the complainant.

Cross-Examination

The complainant questioned the date he became an employee - was it October 2018 (the date of the Revenue Determination) or 1 January 2001? The respondent confirmed the date as 1 January 2001 as specified by the SCOPE and Revenue determinations.

The complainant put it to the respondent that the draft contract sent to him was silent on retirement age. A copy of the contract was opened. The respondent acknowledged that letters “TBC” was inserted after the relevant clause as the matter of retirement date was in discussion with the complainant.

The respondent clarified that while the contract had the title “new entrant”, this was not a new entrant for the purposes of the pension scheme.

Closing Remarks

The complainant was a highly valued employee and a great resource to the students. The respondent had to adhere to the legislation by requiring him to retire. Had he been directly employed in 2001, he would have retired in 2017. The delay in implementing his retirement should be seen favourably as it allowed the complainant to work almost to his 69th birthday. It is regretful that the complainant did not name other respondents in the complaint so that the government public policy requirement regarding mandatory retirement age could be emphasised further.

Preliminary Issues

Time Limits

This preliminary matter concerns whether the complaint was referred outside of the time period prescribed in s 77 of the Employment Equality Acts 1998 -2015. The complaint was presented to the Workplace Relations Commission on 6 February 2021 and the dismissal took place on 9 March 2021.

A general six-month time limit is provided for in s 77(5)(a) as follows:

“Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence”. 

For claims of discriminatory dismissal, the date of dismissal is the actual date of termination as this is the last date of discrimination. In W Cummins Plasterers Ltd v Jaroslaw Nowakowski [EDA086], the Labour court stated:

“Section 77(5) of the Act is perfectly clear. The time limit runs from the date of the act which is alleged to constitute discrimination. The Complainant was dismissed on 1st July 2005. It was on that date that the employment relationship came to an end, and it was then that the Complainant's cause of action, if any, accrued. It follows that the time limit for bringing his claim commenced from that date. Furthermore, a dismissal is a once-off act and cannot be construed as extending over a period within the meaning of Section 77(6A) of the Act”.

It is well recognised that discrimination is rarely a once-off issue and that often it occurs over a period. Where the discrimination is alleged to be continuing discrimination over a period, s 77(6A) of the Employment Equality Acts permits the referral of such a complaint, provided that the claim is submitted within six months of the end of the alleged discrimination.  In HSE v Whelehan [EDA0923] the Labour Court stated that “[i]t is settled law that limitation periods run from the time a cause of action accrues”.

In this complaint the complainant alleges discrimination and discriminatory dismissal on grounds of age. On 12 January 2021 the complainant was issued with notice of an intention to retire him from employment. The complaint of discrimination and discriminatory dismissal were referred to the Workplace Relations Commission in anticipation of the actual dismissal. The issuing of the notice of termination and the dismissal are related events. I am satisfied that the act of serving notice of termination due to compulsory retirement is the time from which this cause of action accrues. Accordingly, I find I have jurisdiction to hear this complaint.

Named Respondents

I will address this preliminary point in the substantive findings.

Jurisdiction of the Workplace Relations Commission

In the judgment of the CJEU in the Minister of Justice v The Workplace Relations Commission (Case C-378/17), the Court of Justice held that the Workplace Relations Commission has a duty to give full effect to the provisions of EU law notwithstanding it may conflict with domestic law. Accordingly, an Adjudication Officer of the Workplace Relations Commission has the power to disapply national law.

Substantive Issue: Relevant Law

Mandatory Retirement Age

Discrimination on grounds of age is prohibited under Council Directive 2000/78/EC. The question of whether the imposition of a mandatory retirement age is permissible under EU law has been considered in several cases. It is now well established that a mandatory retirement age must be objectively justified having regard to public policy considerations.

In Ireland there is no compulsory retirement age, and an employee has a legal right to continue working regardless of their age. However, s 34(4) of the Employment Equality Acts 1998-2015 permit an employer to fix different retirement ages provided they can show that it is objectively and reasonably justified by a legitimate aim and the means of achieving that aim are proportionate and necessary. Policy considerations can be taken into consideration.

The test for objective justification is as set out in Donnellan v The Minister for Justice & ors [2008] IEHC 467. In that case McKechnie J held:

“National measures relating to compulsory retirement ages, are not excluded from consideration under [the 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”.

McKechnie J also held in this case that the imposition of retirement age should also be individually assessed i.e., on a case-by-case basis.

There is a mandatory retirement age for most public servants. This age varies depending on the date of recruitment and is usually provided for in primary legislation.

The Public Service Superannuation (Age of Retirement) Act 2018 (“the 2018 Act”) provides that any relevant public servant who had not already reached his/her compulsory retirement age before 26 December 2018 has a new compulsory retirement age of 70. Most public servants recruited before 1 April 2004 previously had a compulsory retirement age of 65 (Civil Service Regulation Act 1956).

Public servants who were recruited between 1 April 2004 and 31 December 2012 (“new entrants”) have no compulsory retirement age and are not affected by the 2018 Act (Public Service Superannuation (Miscellaneous Provisions) Act 2004). For employees who are not ‘new entrants’ as defined in the 2004 Act, pension is generally payable from age 60 with a compulsory retirement age of 65.

The Public Service Pensions (Single Scheme and Other Provisions) Act 2012 provides that most members of the Single Scheme have a minimum pension age consistent with the age of eligibility for the State Pension and a compulsory retirement age of 70. In general, anyone taking up pensionable public service employment on or after 1 January 2013 is a member of the Single Scheme.

Mandatory public service retirement ages have been challenged in several cases for example, ADJ-00021965 and EDA2111 and more recently in Geraghty v The Office of the Revenue Commissioners (ADJ-000312021). In the latter case the complainant wished to work beyond the compulsory retirement age which applied to her as a public servant. The respondent sought to rely on its obligation under the Civil Service Regulations Act 1956 in retiring the complainant. In disapplying domestic law, the Adjudication Officer found that the mandatory retirement age of 65 provided for under the Civil Service Regulations Act 1956 was in breach of EU Directive 2000/78/EC.

Employment Equality Acts 1998-2015

Discrimination is defined at s 6 of the Employment Equality Acts 1998 -2015 as: 

“(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where- (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which- (i) exists . . .  and (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are . . . (f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”) . . . .”

Section 34(4) provides: 

“Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees if- (a) it is objectively and reasonably justified by a legitimate aim, and (b) the means of achieving that aim are appropriate and necessary.” 

Section 85A(1) of the Employment Equality Acts 1998-2015 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”. 

Accordingly, the burden of proof rests on the complainant to establish facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.  In Mitchell -v- Southern Health Board [2001] ELR 201, the Labour Court emphasised that the claimant: 

“. . . must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.”  

Findings

The complainant worked as an independent contractor for the respondent until he was placed on the respondent’s payroll on 1 January 2019. On this date he was aged 66. The implications for the complainant of a change in employment status were manifold. As a self-employed person he had the liberty to work to an age of his choice; whereas on 1 January 2019 he became a public servant “employed” prior to 1 April 2004, and accordingly, a compulsory retirement age of 65 years applied in line with the applicable retirement legislation.

It is clear from the respondent’s oral and written submissions that it was concerned that the complainant was still in employment because the date he should have retired had passed. Permission was sought to extend the complainant’s employment. This was refused. It is the respondent’s case that it sought to agree terms and conditions, including a date of retirement, and had engaged with the complainant’s legal representative in this regard. It is the complainant’s submission that those negotiations related to terms of employment other than retirement age. The complainant believed that he was being permitted to work to the age of 70, like others within the public service. Efforts were made to agree a written statement of terms of employment. A draft document was opened at the hearing. Under the retirement age clause, it stated “TBC”. A retirement age was not agreed, and the complainant continued to work for a further two years for the respondent.

In January 2021, notice of termination of employment issued, detailing a retirement age of 9 March 2021. The complainant was now the age of 68. This notice was prompted following a report on headcount. It is the respondent’s case that in retiring the complainant it was simply carrying out the legal requirements of the Civil Service Regulations Act 1956. The complainant states that he was discriminated against on grounds of age; being forced out of employment because of his age.

In Mallon and The Minister for Justice, Ireland and The Attorney General [2022] IEHC 546, Phelan J noted:

“By requiring mandatory retirement <the section of the Act> is prima facie directly discriminatory” on grounds of age. Phelan J was referring to section 12(6)(b) of the Court Officers Act 1945 (an Act which requires mandatory retirement at the age of 70 for certain persons). It is common case that the complainant was required to retire on 9 March 2021. I am satisfied that the complainant has made out a prima facie case of discriminatory dismissal on the grounds of age.  As per Phelan J in Mallon, the legislative provision of a compulsory retirement age is prima facie directly discriminatory. I accept that the appropriate comparator/s are employees within the respondent employment who are not compelled to retire at the age of 65.

It is well established that the imposition of a mandatory retirement age is discriminatory per se, and to be lawful such a mandatory retirement age must serve a legitimate aim or purpose and the means deployed to achieve that purpose must be appropriate and should go no further than is necessary.  The burden of proof in justifying an otherwise discriminatory provision rests with the respondent. The respondent states that it retired the complainant because the Civil Service Regulation Act 1956 required them to do so. No evidence was proffered by the respondent at the hearing regarding the background to the Civil Service Regulation Act 1956 or the policy reasons for it, other than it was regrettable that other respondents were not named so that the public policy requirement could be emphasised.

In Donnellan, McKechnie J stated that the imposition of retirement age should be individually assessed on a case-by-case basis. The complainant was highly regarded by the respondent and efforts were made by the respondent to extend his retirement date and to engage his services via Unijobs. The complainant described the joy and fulfilment his work with the respondent brought him daily. The respondent recruited several other counsellors and there was a considerable demand for the expertise and experience the complainant could offer the respondent and its students. The complainant was fully capable of undertaking the work. He did so for years after the age of 65 and continues to do so in private practice at the age of 70.

I find that s 8 of the Civil Service Regulation Act 1956 must be disapplied as it applies individually to the complainant in this case.  I find that the complainant’s dismissal on 9 March 2021 constitutes a discriminatory dismissal on grounds of age contrary to the provisions of EU law and the Employment Equality Acts 1998 – 2015.

I decide that the complainant has established a prima facie case of discrimination which has not been rebutted by the respondent. I order the respondent to pay the complainant €50,000 in compensation for the effects of discrimination on the age ground. This amount is arrived at having regard to the requirement under Article 17 of the Framework Directive as interpreted by case law that the sanction be “effective, dissuasive and proportionate”. 

Retirement age. Discrimination. Discriminatory Dismissal.