Complainant

Respondent

Parties

James  Matthews

Society Of Saint Vincent De Paul

Representatives

  Self-Represented

Barry O’Mahony, B.L. instructed by Aidan McGrath ARAG Legal Protection Limited

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998

CA-00047470-001

02/12/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant gave his evidence under affirmation.  One witnesses for the respondent (from HR) gave evidence under affirmation, another (from the Remuneration and Appointments Committee ) gave evidence under affirmation.

The complainant submitted that an employment agreement contains provision that is discriminatory. He submitted that he was required to retire at the age of 65 under his contract of employment. In advance of that retirement date, he sought and was granted an extension of a year and retired with effect from 16 April 2022.

The complainant submitted that he sought a further extension to his contract of employment in writing but that that request was refused. The request was refused because it was not in accordance with the respondent’s retirement policy. 

The complainant submitted that he asked the respondent to reconsider its position but was informed that this was not an option.

The complainants admitted that his job was advertised while he was still working for the respondent.

In evidence the complainant stated that the respondent never wrote to him with additional details.  He said that he made a request to stay on and tried to talk with them all along and tried to talk to them about the working longer policy.  He stated that they gave him the impression that they would come back to him but never did.  He also stated that he was excluded from a meeting that took place on 16 February.

Under cross examination the complainant accepted that the normal retirement age contained in his contract was 65 and accepted that he signed the contract.  He confirmed that the was facilitated with a request to work on until 66.  He sought to work on afterwards and was refused but confirmed that the lodged an appeal against that decision.  He stated that he never received his retirement letter together with details regarding a retirement course.

The respondent submitted that this case revolved around a mandatory retirement age contained in clause 14.1 of the complainant’s contract of employment. This contract which the complainant signed at the start of his employment outlines the mandatory retirement age of 65 and further information was given in the employee handbook which the complainant had also signed at the commencement of his employment.

The respondent submitted that the complainant was informed in advance of his original retirement date that he was due to retire and was informed of his right to seek an extension to that retirement date. The complainant sought and was granted an extension to his employment contract up to 16 April 2022. When he was granted the extension, he was informed that in accordance with the retirement policy, it was not permitted to work beyond his 66th birthday.

The respondent submitted that its employee handbook details the procedure covering retirement and that the complainant acknowledged receipt and understanding of the company handbook by signing it.  It submitted was fully aware at all material times that there was a contractual retirement age in place.  The complainant sought another extension but this was not granted.

The respondents retirement policy details the aim of the policy and includes the following reasons:

·        encourage motivation and drive and a high retention rate by creating possible opportunities for promotion and development.

·        create possible opportunities for employment for individuals seeking employment with the Society.

·        create opportunities for intergenerational fairness.

·        create a balanced workforce and promote greater age balance within the workforce.

·        ensure cohesion amongst all staff.

·        encourage the renewal of teams.

·        effectively manage the departure and recruitment of staff.

·        Recognise the dignity and respect due to all and avoid potential disputes regarding the capacity and capability of Employees to work beyond a certain age.

The respondent indicated that in order facilitate the smooth transition and handover it advertised the role and another person was recruited to fill the forthcoming vacancy.  At the expiry of the extended period of the complainant’s employment, his employment came to an end due to the complainant having attained his extended contractual retirement age.

The respondent indicated that its position on the retirement age is objectively and reasonably justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. The respondent submitted that it applies this policy consistently across all staff members.  It submitted that there is no comparator within the organisation that has been treated differently on the basis of age.

The respondent noted that Section 34(4) of the Employment Equality Act 1998 states as follows:

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

The respondent noted that in order to fall within the provision of s.34(4) a retirement age must be communicated to an employee if the employer wishes to rely on same. In Earagail Eisc Teo v. Lett EDA1513, attached at Appendix 8 the Labour Court set out the position regarding retirement ages as follows:

“As a matter of general principle, a termination of employment by way of retirement should be distinguished from a dismissal on grounds of age. A retirement occurs where the employment comes to an end pursuant to a condition of employment which limits an employee’s tenure to the point at which they attain a specified age. In that regard, it appears to the Court that the authority conferred on an employer by s.34(4) of the Act is to apply a condition of employment to that effect. … The Court further accepts that an employer’s employment policy in relation to retirement can take effect as a 5 contractual condition of employment which is, prima facie, protected by s.34(4) of the Act. However, in the Court’s view that could only arise where the policy is promulgated in such a manner that the employees to whom it applies either knew, or ought to have known, of its existence… a crucial consideration in addressing the question of incorporation or implication is whether the employee knew, or ought to have known, of the term contended”

The respondent submitted that the retirement age was contained in the contract of employment, and the employee handbook, both of which he signed. The respondent suggested that it follows therefore that the complainant knew or ought to have known that his contract of employment terminated upon his attaining the age of 65. He was expressly made aware of this in any event, well in advance of his employment. The respondent suggested that on that basis, the complainant’s retirement is protected by s.34(4) of the act.

The respondent also submitted the case of Connaught Airport Development Ltd v. Glavey EDA1710 and argued that the Labour Court held that the employee’s knowledge that the retirement age was applicable to him was a ‘crucial consideration’ in relation to the incorporation of the term. In the current circumstances, the Complainant was fully aware that the term applied to him, as evidenced inter alia by his request to extend the end date of his employment.

In relation to the case of A Sales Assistant v. A Limited Company ADJ-00023576, the respondent dubmitted that it was confirmed that the applicable test for in compulsory retirement cases is that which is set out in Donnellan v. Minister for Justice Unreported, High Court, McKechnie J, 25th July 2008. In Donnellan the High Court held as follows: ‘national measures relating to compulsory retirement ages, are not excluded from consideration under [the Framework Directive]. Any discrimination with regard 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’.

The respondent noted that it was further confirmed in Donnellan that where multiple reasons are proffered for a compulsory retirement age, it is sufficient for only one or more to be a legitimate aim, McKechnie J noted that it was well established that: 6 “where justification is sought, and multiple reasons are given, it will be enough that one or more of the justifications advanced, amount to a legitimate aim”.

The respondent relied on a number of grounds, as detailed above, for having a compulsory retirement age in place. It noted that many of these grounds are also contained in SI 600\2017.   The respondent noted that a number of those grounds were also relied upon in Gordan v Garda Commissioner DEC-E2020-004. In that case the respondent relied upon Intergenerational fairness (allowing younger workers to progress); Motivation and dynamism through the increased prospect of promotion; Health and safety (generally in more safety critical occupations); Creation of a balanced age structure in the work force; Personal and professional dignity (avoiding capability issues with older employees); and Succession planning.”

The respondent noted that in finding the compulsory retirement age objectively justified, the Adjudication Officer stated that:

“Having examined the exercise undertaken by Garda HR arising from the claim raised by the Association of Chief Superintendents and the claim before the Conciliation Council, I find that given the flat structure of the Force, the prospect of promotion for the junior/middle ranks to Officer level is a very real one. I note the arguments made by the respondents in the context of a serious hiatus in the succession process through stagnation in the promotion process if the retirement age was increased. I accept the evidence given by the representative of Garda HR that if the age of retirement was increased, it could have led to ambitious and capable members of the Force going outside the organisation to source alternative employment and this was a factor in considering any change to the retirement age.”

The respondent submitted that similar reasoning applies in the current circumstances, in that it is likely to face challenges retaining staff in the absence of promotion opportunities. The respondent stated submitted that the adjudication officer went on to consider whether the measure was proportionate and held that as the retirement age could be extended, and that the employees’ full pension was available upon retirement, the compulsory retirement age was proportional. In the current circumstances, the Complainant was facilitated with an extension of his contract and had access to both state and private pension upon retirement.

The respondent also relied extensively upon the case of Clinical Psychologist v Social Services (ADJ-00004227) and submitted that the circumstances of the case, and the reasoning offered by the respondent in that case, and those present in the current case are similar, and that the retirement age contained in the policy is objectively and reasonably justified by a number of legitimate aims in the case of the instant respondent, and that the means of achieving that are proportionate.

The respondent submitted that it follows therefore that it is entitled to rely upon section 34(4) of the Employment Equality Act 1998 and that the within complaint must fail.

The first witness for the respondent worked for the HR department and noted that HR policies are considered for review on an annual basis.  The second witness (whom was a volunteer chair of the Remuneration and appointment committee) noted that the policy looked at the job and role not the individual person.  She noted that the retirement policy was considered in Oct 2021 but that it was felt that the policy was fair and in accordance with the legislation.

Preliminary Matter: - Limit of the complaint

During the hearing, the complainant expanded his testimony to include considerations relating to discriminatory treatment.

The complainant gave evidence at the hearing that he was treated in a discriminatory fashion when he sought to have his contract of employment extended.  He stated that the respondent did not engage with him other than in a perfunctory manner and refused to consider the extension of his contract of employment.  He stated that he was kept at arm's length by the respondent management team and that he was excluded from various meetings and procedures. He also stated that he had no recourse to an appeals mechanism and that the respondent paid no attention to the code of practice on longer working.

The complaint delegated to the adjudication officer for adjudication revolves around a discriminatory provision in an employment agreement and the accompanying narrative does not expand beyond that limited scope. Accordingly, the adjudication officer is precluded from considering other matters not contained in that compliant which were not delegated by the Director General of the Workplace Relations Commission.

Substantive matter of the Complaint:

There is no dispute between as to the discriminatory nature of compulsory retirement and the respondent submitted that the handbook clearly outlines the retirement policy it operates and clearly outlines the objective and proportionate reasons as to why it holds with a definite retirement age.

Section 85A of the Act states that - 2Where 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.”  The facts have been accepted by the respondent and accordingly, I find that this complaint is well founded.

However, the respondent submitted that under the exemption outlined in section 34(4) of the Employment Equality Acts, it does not constitute discrimination to fix a mandatory age.

The respondent made comprehensive submissions regarding its thinking on the imposition of a mandatory retirement age, on the procedures and documentation it has in place and on the Irish and European case law applicable to mandatory retirement.

It made extensive reference to the case of Clinical Psychologist v Social Services (ADJ-00004227) and it is worth replicating the decision and reasoning made in relation to Section 34(4) of the Act in that case:

Objective Justification Section 34(4) of the Act.

The Respondent set out in detail the reasons for the retirement age of 65 years. In summary these are –

The Complainant is a Clinical Psychologist providing a service in relation to Counselling Services provided by the Respondent and he was clearly informed of the normal retirement age within the Respondent Company.

In 2011/2012 when the reconfiguration of Counselling was being negotiated it was specifically discussed between the Parties, including the Complainant who was representing the IMPACT Trade Union, that the Clinical Psychologists role within Counselling would be red-circled and would be replaced through natural attrition when they retired at age 65 or their contracts expired and they would be replaced by accredited Counsellors

An accepted and known retirement age is necessary to provide conditions and support for staff that result in a high retention rate, increased motivation and the opportunity for promotion.

To create a balanced workforce which also ensures that the Respondent can effectively manage the departure and recruitment of staff

To ensure cohesion amongst all the staff and create opportunities for intergenerational fairness and appropriate renewal of the various teams providing Counselling across the organisation

To uphold the Respondent’s dignity and respect for all the staff and to avoid disputes around capacity and/or underperformance

These issues have been addressed in a number of key decisions of the Court of Justice of the European Union. In the Case C-411/05 Felix Palacios de La Villa and Cortefiel Servicios SA the Court examined the justification of a retirement age contained in a collective agreement and held as follows: By guaranteeing workers a certain stability of employment and, in the long term, the promise of foreseeable retirement, while offering employers a certain flexibility in the management of their staff, the clause on automatic termination of employment contracts is thus the reflection of a balance between diverging but legitimate interests, against a complex background of employment relationships …in the area of retirement and employment…It does not appear unreasonable for the social partners to take the view that a measure such…may be appropriate for achieving the aims set out above…..Furthermore, the measure cannot be regarded as unduly prejudicing the legitimate claims of workers subject to compulsory retirement because they have reached the age-limit provided for…. But also takes account of the fact that the persons concerned are entitled to financial compensation by way of a retirement pension at the end of their working life…..

This issue was also addressed in Case C-250/09 and C-268/09 (joined cases) in Georgiev vTechnicheski Universite Sofia which involved a compulsory retirement age of 68 years for University Professors. At Paragraph 45 of this judgement the Court held that encouragement of recruitment undoubtedly constitutes a legitimate aim, in particular when the promotion of access of young people to a profession is involved. The CJEU held that the issue should be referred back to the National Courts to determine.

In another decision of the CJEU in Fuchs and Kohler v Land Hessen Case C-159/10 and C-160/10 which concerned the compulsory retirement of Civil Servants at age 65 where the Court accepted that the aims of the Respondent were to achieve a balance between the generations, plus the efficient planning of the departure and recruitment of staff, encouraging the recruitment or promotion of young people and avoiding disputes concerning older employees fitness to work beyond a certain age.

On the basis of the evidence and taking into account the case law of the Court of Justice of the European Union, and in accordance with Section 79(6) of the Employment Equality Act, 1998 as amended I declare the complaint is not well founded. The Respondent has in my view provided a full defence to objectively justify a normal retirement age of 65 years, including a Collective Agreement, which the Complainant was party to, which provided for the replacement of Clinical Psychologist Posts on their retirement at age 65 with accredited Counsellors.

The respondent suggested that this complaint is similar to ADJ 00004227 and I find that the facts presented in that case are similar to this case in terms of justification.

Section 34(4) of the Employment Equality Acts states as follows:

(4) 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.

In the instant case, the respondent has outlined its policy, the legitimate aims underlining its policy and has promulgated that policy to staff.  Although the complainant did not receive an additional letter during the process, I am satisfied that he was aware of the retirement policy and his retirement date at all times. Having regard to all of the written and oral evidence presented in relation to this case, I find that the respondent is entitled to rely of the exception to age related discrimination contained in Section 34(4) of the Act.

Having regard to all the written and oral evidence presented in relation to this complaint my decision is that although the compliant is well founded, the respondent is entitled to rely upon the exceptions contained in Section 34(4) of the Act.  Accordingly, my decision is that the complainant was not discriminated against in terms of the Employment Equality Acts.

Employment Equality – well founded complaint – exception provided for at 34(4) – not discriminated against.