Complainant

Respondent

Parties

Patrick  O'Callaghan

Ferrero Ireland Ltd

Complainant

Respondent

Anonymised Parties

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Representatives

Colleen Minihane SIPTU

Des Ryan BL instructed by Jennifer Cashman RDJ LLP

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-00054160-001

15/12/2022

The complaint is brought pursuant to section 77 of the Employment Equality Acts 1998 -2015. (hereinafter the Acts) The Complainant alleges discrimination on the grounds of age on the basis of the operation of a mandatory retirement age of sixty-five years. The Respondent accepts, at the outset, that the Complainant was retired at age sixty-five and he wanted to remain at work. The Respondent therefore accepts that the Complainant has discharged the burden of proof which leads to a presumption that discrimination has occurred. The Respondent accepts that the burden now shifts to the Respondent to show that discrimination has not occurred. It is the Respondent’s case that it will show that its retirement age was objectively justified, and that the Complainant’s request had been fully considered.

Undisputed Factual Background:

There was no dispute regarding the following facts:

The Complainant commenced employment with the Respondent on 13 September 2011 in the position of General Operator and retired at the grade of machine operator on a weekly wage of €659.88 gross: net €517.25.  The Complainant signed a contract of employment which expressly incorporated the Respondent’s Company Handbook. Of particular note in this case is clause 5.7 of the Company Handbook, which is entitled ‘Retirement’, and which reads:

‘It is agreed that employees will normally retire on reaching sixty-five years of age. However, in certain circumstances, at the Company’s discretion or where applied for in accordance with the rules of the pension scheme the retirement age of an individual may be reviewed’.

The Complainant’s employment ended on 28 September 2022 on the date he attained his 65th birthday. The Complainant made a request, via email, to Ms Caroline Mullins in the HR Department , on 5 August 2022 seeking to work beyond the mandatory retirement age of sixty five.

On 1 September 2022 correspondence was sent to Ms Mullins from Ms Sharon Ryan, Industrial Organiser at SIPTU. This letter concerned the Complainant’s upcoming 65th birthday (on 29 September 2022) and his pending retirement. In the letter Ms Ryan was seeking an objective justification from the Respondent for the mandatory retirement age applicable within the Respondent company. In the correspondence, Ms Ryan also suggested that the Respondent’s retirement policy did not take account of the Industrial Relations Act (Code of Practice on Longer Working Declaration) Order of 2017 (hereafter the ‘ Code of Practice on Longer Working’).

Ms Mullins met with the Complainant on 7 September 2022 to discuss his request to work beyond the mandatory retirement age. The Complainant stated that he would like to extend his working time for another 12 months and noted that the Code of Practice allows for longer working arrangements. He further stated he was a good, hard worker with no health issues nor absenteeism record. The Complainant stated that he would like an objective justification if his longer working request was refused. Ms Mullins confirmed the current position with the Complainant that he would like to stay on, and then informed him that she would consider his request and respond to him within days.

Ms Mullins sent the Complainant a letter dated 16 September 2022 to inform him that his longer request had not been approved. The objective justifications specifically identified by the Respondent in that correspondence were as follows: (1) Health and safety due to the manufacturing environment: (2) Respecting employee dignity, which could be eroded by the need to carry out compulsory medical assessments: and (3) Intergenerational fairness, increased prospect of promotion, and workforce planning by giving employees a realistic expectation of when the vacancies will arise. In terms of workforce planning, Ms Mullins set out that the Respondent had decided to put in place a different structure in the Complainant’s department. She informed the Complainant that a shift role had already been advertised to replace his role upon retirement.

On 21 September 2022, the Complainant emailed Mr Brendan O’Sullivan, Production Manager to appeal the Respondent’s decision to retire him at sixty-five. His reasons for the appeal were as follows: (1) He is fit, healthy and well able to work; (2)  The Complainant  noted that the government is currently planning to extend the retirement age to seventy and that contracts with a mandatory retirement age of sixty-five are to be abolished under new legislation; and (3) The Complainant expressed his view that he was hopeful that the Respondent would embrace societal changes and allow for the opportunity to work beyond sixty-five.

On 4 November 2022 a meeting was held to discuss the Complainant’s appeal where the Complainant was in attendance with his SIPTU representative, Ms Colleen Minihane. On 14 November 2022 Mr Brendan O’Sullivan informed the Complainant via letter that his appeal was not upheld. That letter stated that the Complainant put forward seven grounds for appeal. Mr O’Sullivan responded to each ground of appeal as follows:

·       The Complainant submitted that health and safety is not an issue for him in the workplace. The Respondent responded to this by providing that sixty-five is an objectively justified retirement age on the basis of health and safety as the Respondent operates a manufacturing environment which requires stringent health and safety precautions to ensure safety and also fulfil legal requirements.

·       The Complainant submitted that his dignity would not be eroded by being required to participate in a medical examination. The Respondent finds however that the mandatory retirement age is still reasonable from a dignity perspective.

·        In terms of intergenerational fairness, it was set out in the letter that succession planning is critical, and it is also noted that the Complainant’s role requires specific training.

·       The Complainant submitted that he had not paid into a full pension due to his short service. Mr O’Sullivan set out in the letter that the Respondent has contributed to his pension on a weekly basis in the same way that it does for every employee for his eleven years of service. The Complainant set out that the Company Handbook states that the Respondent is an equal opportunities employer. However, the Respondent does not accept that its mandatory retirement age of sixty-five undermines its commitment to equal opportunities, as it is objectively justified.

·       The Complainant also sets out that the Company Handbook provides at paragraph 5.7 that retirement is at the discretion of the Respondent, and he is therefore looking for his case to be reviewed individually. The Respondent agrees that it does consider all requests to work beyond sixty-five, however, this does not mean that it must nor can facilitate all such requests.

The letter concluded that Mr O’Sullivan set out that the retirement age applies consistently across the company and is provided for in the company occupational pension scheme, of which the Complainant would have been aware, as he is a member of the scheme. The Complainant was informed that the Respondent sees no objective justification to offer him a fixed term contract or a specified purpose contract, and, having considered the applicable guidelines set out in the Code of Practice on Longer Working, Mr O’Sullivan saw no basis to uphold the Complainant’s request in his letter.  

Ms Caroline Power, the HR Department, gave evidence of the acceptance and signing by the Complainant of his employment contract and his acceptance of the employee handbook. 

Ms Caroline Mullins, HR department, gave evidence of the longevity of the plant which had been in existence for 48 years and that people were now coming up to retirement. She described the packaging area where the Complainant had worked as comprising of fast speed automation, where there were some robots and where pallets were stacked. She explained that the Complainant was on a higher role as a machine operator. His duties included the driving of a forklift truck. She stated that people ordinarily retired at age sixty-five and that this was the first case where a person had requested to work beyond that age.

The witness attested to the letter she sent to the Complainant on 16 September 2022 whereby she outlined a number of grounds as to why she believed the retirement age at the plant was objectively justified. She gave an account of her health and safety concerns regarding the work environment in the area where the Complainant worked. These included shift work on “back-to-back” shifts, the manual handling of bulky material and the constantly fast-moving packaging process. On dignity at work and the need for probable health checks for workers beyond a certain age , she stated that this was broad policy applicable across the plant for all staff and that the requirement for older staff to undergo such checks on a regular basis would be undignified.  She gave evidence of her need in HR, and in the plant generally, of the requirement for proper advanced workplace planning when the company have to know well in advance of numbers and allowing also for promotional movement in the plant. She described a 20% turnover in staff and how certainty is needed with numbers when it comes to fixed retirement ages. She said that the Complainant’s position would be considered a promotional role because of his higher rate of pay. She attested to a number of applications for the Complainant’s position, two of which were exhibited (redacted). She stated that there had been a change to the Complainant’s position, which was planned before he retired, with regard to shift operation in line with the company’s needs; it is now a day plus two shift operation. The witness stated that the Complainant wished to be facilitated with a fixed term or specified purpose contract but that no such position was planned for or needed by the Respondent.

In cross examination the witness accepted that the agreement on retirement age with SIPTU, as incorporated in the handbook was there a long time and had not been updated. When asked about the general need now in society for people to work longer, the witness said the company wished to have consistency with regard to retirement ages so that proper production planning could be achieved. The witness stated that she had diversity training but could not be specific when questioned on training on age discrimination. The witness’s attention was brought to the fact that only two applications for the Complainant’s jobs were exhibited and was asked if she could account for the slow uptake on applications. The witness replied that the position was not as attractive for some people due to potential loss of shift premium. The witness accepted that no individual risk assessment was carried out on the Complainant’s capacity to continue to carry out his work.

Mr Brendan O’Sullivan gave evidence of hearing the Complainant’s appeal. He had no criticism of the Complainant as a worker and gave an account of the objective reasons as outlined in his letter of 14 November 2022. He said that no new grounds were cited in the Complainant’s appeal communication as those cited in his original letter to Ms Mullins. On the application of his position on health and safety in the manufacturing/packaging process, which he had responsibility for, and the protection of worker’s dignity when it came to potential regular medical checks for older workers,  he said that these were concerns he had for all potential retirees across the plant, and not just the Complainant. In cross-examination he said that as production manager, he had not received diversity training regarding age discrimination.  

Respondent’s Legal Argument:

The Respondent cites Section 6(1) of the Acts states that:

“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)…”

Section 6(2)(f) specifies as a discriminatory ground the fact that the people treated differently “are of different ages…”.

The Respondent submits that both the Framework Directive (2000/78/EC) and the Acts make specific exceptions from these general rules prohibiting discrimination so as to allow for compulsory retirement ages.  Article 6(1) of the Framework Directive permits exceptions to the rule against differences of treatment on grounds of age, both generally where they are justified by a legitimate aim, and more specifically where they take the form of a maximum recruitment age. It provides in relevant part:

“Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.”

 Recital 14 of the Directive states:

“This Directive shall be without prejudice to national provisions laying down retirement ages.”

 Section 34(4) of the Acts implements Article 6 of the Framework Directive. As originally enacted, it provided:

“(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.”

The Respondent submits that Section 34(4) was amended by section 10 of the Equality  Miscellaneous Provisions) Act 2015, so that section 34(4) now explicitly incorporates the requirement that retirement ages be objectively and reasonably justified, as underlined by the ECJ in Félix Palacios de la Villa v Cortefiel Servicios SA Case C-411/05 [2007] ECR I-8531 and its subsequent decisions on compulsory retirement ages.  Accordingly, the Respondent submits,  section 34(4) now provides:

“(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;

(b) the means of achieving that aim are appropriate and necessary.”

The Respondent contends it is satisfied that it can demonstrate that the compulsory retirement age of sixty-five provided for in the Company Handbook pursues legitimate aims as previously communicated to the Complainant is appropriate and necessary to achieve these objectives.

The Respondent cites Donnellan v Minister for Justice, Equality and Law Reform & others [2008] IEHC 467(25 July 2008), which also involved a challenge to a retirement age of sixty years in the Garda Siochana. . The plaintiff was an Assistant Garda Commissioner who was retired from the force on reaching his 60th birthday, in accordance with the applicable Regulations. Amongst other things, the Plaintiff argued that the setting of the retirement age was incompatible with the Framework argument that a systematic approach was needed to “succession planning” to prevent too many senior officers retiring at the same time, and in order to ensure that, through training and development, there was a sufficient pool of able and experienced officers to provide continuity in management and direction, and competition for promotion.

The Respondent points out that at the time when the decision in Donnellan was delivered, section 34(4) had yet to be amended to expressly require that compulsory retirement ages be objectively and reasonably justified. However, the Respondent submits that McKechnie J applied that requirement in assessing the compatibility of the measure with the Framework Directive. He followed the leading ECJ decision of Félix Palacios de la Villa and, rejecting the argument that Recital 14 immunised compulsory retirement ages without the need for justification, said at para. 66:

“even, if uninfluenced by case law, I would hold, relying upon first principles, that such a construction would be inherently incompatible with the whole purpose, thrust and tenor of the Directive. Given the significance of furthering the principle of equality and noting the steps taken at community level to implement this, it would seem almost self-defeating, to allow member states to disregard the Directive, by such simple means as fixing compulsory retiring ages. It would matter not at what particular age the threshold was set, or whether there was any or any legitimate justification therefor. Once on the statute books the effect would be to bypass the Directive. I could not hold that this was either the intention of the Directive or indeed its effect.”

The Respondent asserts that  McKechnie J found that the retirement age of sixty for the plaintiff assistant commissioner was objectively and reasonably justified by a legitimate aim and was therefore compatible with Article 6 of the Framework Directive.

The Respondent contends  that McKechnie J’s decision in Donnellan  on the importance of allowing individual assessment are also particularly appropriate in the present case, in circumstances where, as seen in the Ferrero Company Handbook, an individual can request a review of the application of the mandatory retirement age to their situation, and that the Complainant was able to request an extension of his retirement age beyond sixty-five, which was duly considered and subject to a separate appeal process. The Respondent argues that  it is clear that an individual assessment was conducted in respect of the Complainant.

The Respondent references a number of ECJ/CJEU cases post- Donnellan but puts a particular emphasis on the United Kingdom’s Supreme Court decision of Seldon v Clarkson Wright & Jakes [2012] IRLR 591 which examined a mandatory retirement provision in relation to a law firm partnership, and, which the Respondent submits,  has been frequently cited in the Irish case law.

The Respondent contends that  when the  social policy objectives are applied in a concrete way to the situation within the Respondent company, it can be seen that the same two core objectives identified in Seldon apply in this case , namely:

·       retention: ensuring that employees have a reasonable prospect of advancing within Ferrero over the course of a career;

·       workforce planning: facilitating the planning of the business and workforce across individual departments by having a realistic long-term expectation as to when vacancies will arise.  

The Respondent referred to a number of Tribunal and WRC cases post Donnellan  with particular emphasis on the decision of the Adjudication Officer  in O’Dowd v Franciscan Province of Ireland ADJ 000-24869, which it claims is analogous to the present case, where the Adjudication Officer held:

“On careful consideration the Organisation’s Pension/Retirement Policy at age 65 is a Reasonable & Legitimate Aim and the Means employed as set out in their Employment Policies are legitimate and proportional. Retirement is widely communicated to be at age 65, it is in employment Contacts & a variety of supporting Pension Documentation. It has the provision of Post 65 Working if appropriately and objectively justified. Clause 6 of the contract refers

Overall the Respondent Scheme is common with thousands of similar Schemes throughout Ireland. It benefits, in my opinion, from the provisions of Section 34(4) of the Equality (Miscellaneous Provisions) Act 2015 2015 Act and is not Discriminatory.”

The Respondent argues  that this reasoning is appropriate  having regard to the instant case.  Evidence of the Respondent’s clear communications to its employees concerning the Ferrero Ireland Limited Retirement and Death Benefits Plan and the Renewal thereof, and the clear integration between  the retirement age and operation of the Respondent’s occupational pension are critical  factors in demonstrating the proportionality and appropriateness of the means chosen to pursue the legitimate aims identified above.  

I took a comprehensive note of the evidence and submissions, and they are cited as appropriate in the findings and conclusions  section of this decision.  

The Complainant gave evidence of telling Ms Mullins, HR, that he did not want to go when informed of an upcoming retirement planning training event  that was arranged, prior to his retirement date. He also stated this to Brendan O’Sullivan his production manager. His health and safety compliance record was described as  one hundred per cent and his absenteeism record was practically zero for  the time he had worked in the plant. The Complainant said he had no issues going for regular health check-ups because he considers himself to be quite fit for the job. He was not made aware that he is role was to be changed when he vacated his job. He stated that he now drives a van for a motor factor company at just above the. minimum wage (€24,470 p.a.). He commenced this role on 28 November 2022. 

In cross-examination the Complainant accepted that he had verified by signature that he had read and understood the contents of the company handbook.

Complainant’s Legal Argument

The Complainant submits that dismissal at age 65 was not objectively and reasonably justified, by a legitimate aim as the above list does not apply to a general operator in Ferrero Ireland Ltd. The Complainant points to a number of issues in support of this position: -

a)       Health and Safety is not a legitimate aim as manufacturing in the context of the production of confectionery, could not be considered as hazardous.

b)       Employee dignity: the claimant confirmed he would willingly cooperate with a medical assessment. This could not be considered as eroding his dignity especially as the alternative would be applying for jobseeker's benefit, unnecessarily.

c)        Workforce planning, intergenerational fairness or succession planning is not realistic as the post held by the claimant, is not a promotional post.

The Complainant argues that the Respondent's assertion that it has restructured the Complainant's department, did not negate their responsibility to their then existing employee in terms of seeking his cooperation with this change.

The Complainant submits that 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".

The Complainant points out that McKechnie J also held in this case that the imposition of retirement age should be individually assessed i.e., on a case-by-case basis. The Complainant argues that the Respondent in this case has not met this bar.     

The Complainant submits that the Code of Practice on Longer Working sets out the best industrial relations practice for managing the engagement between employers and employees in the run up to retirement age within the employment concerned. The Complainant submits that in this instant case it clearly states working beyond sixty-five is possible therefore, providing a legitimate expectation. The Complainant argues the Respondent applied mere lip service to their requirements under the Code.

The Complainant cites a number of WRC cases in support of his position

In conclusion, the Complainant argues that the Respondent in this case did not establish: (a) a contractual retirement age of sixty-five formed part of the Complainant's terms and conditions of employment; (b) that the mandatory retirement age serves a legitimate aim or purpose; and (c) the means of achieving that aim or purpose was proportionate. Despite multiple reasons being given for a compulsory retirement age, none amount to a legitimate aim.

In terms of redress, 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" the Complainant is seeking the equivalent of 104 weeks’ pay.

I took a comprehensive note of the evidence and submissions, and they are cited as appropriate in the findings and conclusions  section of this decision. 

The Respondent accepts that the Complainant has discharged the burden of proof which leads to a presumption that discrimination has occurred and that the onus is now on the Respondent  to show  that its retirement age was objectively justified. The evidence in this case clearly shows from the outset that the Complainant had actual knowledge of the retirement age through his employment contract and the employee handbook and the operation of the pension scheme.  Of particular note in this case is clause 5.7  of the Company Handbook, which is entitled ‘Retirement’, and which reads:

‘It is agreed that employees will normally retire on reaching sixty-five years of age. However, in certain circumstances, at the Company’s discretion or where applied for in accordance with the rules of the pension scheme the retirement age of an individual may be reviewed’.

There was general consensus in this case by both parties  on the facts surrounding the imposition of the retirement age,  and likewise there was  common case on the  correspondence and happenings at the meetings at the time of the Complainant’s retirement. The core issue for me  decide is whether the  compulsory retirement age of 65 for the Complainant  was objectively justified.

Applicable Law:

Article 6(1) of the Framework Directive (2000/78/EC)  permits exceptions to the rule against differences of treatment on grounds of age, both generally where they are justified by a legitimate aim, and more specifically where they take the form of a maximum recruitment age. It provides in relevant part:

“Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.”

 Recital 14 of the Directive states:

“This Directive shall be without prejudice to national provisions laying down retirement ages.”

 Section 34(4) of the Acts implements Article 6 of the Framework Directive. As originally enacted, it provided:

“(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.”

 Section 34(4) was amended by section 10 of the Equality  Miscellaneous Provisions) Act 2015, so that section 34(4) now explicitly incorporates the requirement that retirement ages be objectively and reasonably justified.

 Section 34(4) now provides:

“(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;

(b) the means of achieving that aim are appropriate and necessary.”

The Code of Practice on Longer Working identifies the following examples of what constitutes legitimate aims by an employer:

i. “Intergenerational fairness (allowing younger workers to progress);

ii. Motivation and dynamism through the increased prospect of promotion;

iii. Health and safety (generally in more safety critical occupations);

iv. Creation of a balanced age structure in the work force;

v. Personal and professional dignity (avoiding capability issues with older employees);

vi. Succession planning.

These are  are policy aims that have been endorsed by the CJEU as legitimate aims   in a series of cases.  However, in Donnellan  Mc Kechnie J  put an emphasis on individual assessment when considering proportionality. McKechnie J said at para. 104:

“The fact that individual assessment is possible is an important consideration. Where there are a large number of people involved and it would be impractical to test every person then it may be proportional to use some form of age-proxy. Conversely, where there are few people to assess, and such could be done relatively easily it would not be proportionate to use blanket proxies so as to determine personal characteristics.”

The Respondent argued that due individual  consideration was given to the Complainant’s application for longer working.  However, I found the Respondent’s  witnesses’ evidence to be somewhat light in this regard. The HR manager stated that the Complainant’s position of  machine operator was a promotional position and that the vacancy arising would lead to intergenerational fairness arising from a natural upward mobility. However, the HR manager accepted that only two people had applied for the position. Furthermore, the evidence suggested that the position held by the Complainant attracted a relatively modest premium with no quantum leap in skillset required by potential applicants. I am satisfied that  that such positions could be created quite easily without recourse to a discriminatory measure.

The HR manager also put forward the position that certainty with retirement ages was need for workplace planning on a year-to-year basis. She gave further evidence of the challenging environment where the Respondent’s staff turnover rate was 20%. I can only glean from this statistic that flux was the natural order of things and  retention of staff was paramount at the  time of the Complainant’s retirement. I fail to see the logic of the  need  to terminate the Complainant’s contract in such a scenario where it was forwarded in evidence that the Complainant had all the attributes of a model employee.

The Respondent argued  employee dignity could be eroded by the need to carry out compulsory medical assessments. The Complainant gave convincing evidence that he was fit and healthy and argued that his dignity would not be affected in taking such tests if requested. The Production Manager cited health and safety reasons in the packaging department where bulky items are carried by lifting equipment. However, no risk assessment was done by the Respondent and no evidence was forwarded to show that the tasks carried out by the Complainant were  arduous or physically demanding to the degree that it could compromise any  “safety critical” dimension of the role. The Complainant gave evidence that he is presently employed, rather effectively,  as van delivery person for  a motor factor company, which involves an amount  physical agility and alertness.  

I find that the Respondent did not give due attention to some of the fundamental practices outlined in  the Code of Practice on Longer Working. Although the code is not prescriptive it is generally regarded as best practice in regard to industrial relations and compliance. No evidence was given with regard to policies and procedures developed by the Respondent  to increase an  age diverse workplace that encouraged retention of older workers and longer working lives. The HR manager could not remember if she had received training  on age diversity and the benefits of such diversity. The Production Manager stated  he had received no such training but refers to the Code in his appeal response without giving any evidence of actual knowledge of the Code or specifically how he applied it in practice in this instance.  The sole reference in the Employee Handbook  to possible longer working states the following 2011 creation:

It is agreed that employees will normally retire on reaching sixty-five years of age. However, in certain circumstances, at the Company’s discretion or where applied for in accordance with the rules of the pension scheme the retirement age of an individual may be reviewed’.

This clause  did not age well, is somewhat ambiguous, and seems to be the sum total of a longer working  policy in the company. It is  clearly deficient in complying with the requirements of the Code of Practice on Longer Working and gives little regard to  contemporary  societal acceptance of the need for longer working when appropriate. 

Overall, I find that the Respondent’s HR and Production  Managers’  reasons for refusal of  the Complainant’s application to be overly formulaic and obviously not viewed through the prism of the Code of Practice on Longer Working. The evidence showed  the Respondent  used an age-proxy blanket  policy rather than   an individual assessment of the Complainant’s application.  I am satisfied that  where few people are to be assessed  (the Complainant was the only applicant ever for longer working at the material time), such could have been done rather easily having taken into account the rate of retirement and the size of the Respondent’s operation -  the desired  approach  alluded to in Donnellan in such circumstances when proportionality needs to be applied. No evidence of a test of compatibility of the purported legitimate aims directed  specifically at  the  individual characteristics of the Complainant, was given. The Respondent instead based its position on the  general probabilities of age, health, and competence, with weak  references to purported legitimate aims of  intergenerational fairness, the respect of dignity and work planning. This position  clearly lacked an  element of individual assessment. The  Respondent  fell short of discharging the burden in evidence  that the discriminatory measure it adopted  was in pursuance  of legitimate aims or that those aims were proportionate when measured against the characteristics of the Complainant.     

Having considered all the submissions and evidence in this case I find  the Complainant has discharged the burden of proof which leads to a presumption that discrimination has occurred and I am satisfied the Respondent has not rebutted that presumption  that its retirement age was objectively justified.  

In respect of redress, I note that redress is assessed per the effects of discrimination and should be effective, dissuasive, and proportionate. The Complainant gave evidence of having the benefit only of 11 years pension contributions, but he had  found work in November  later that year, albeit at a considerably lesser rate of pay. Taking account of all the circumstances  I award redress of €20,000 for the effects of discrimination.

For the reasons outlined above, I find that the Respondent discriminated against the Complainant on the grounds of age, and I award redress of €20,000 for the effects of discrimination.

Employment Equality Acts 2000-2015, Retirement Age Grounds.