Complainant

Respondent

Parties

Thomas  Doolin

Eir Business Eircom Limited

Representatives

Sarah Daly BL instructed by Jacqueline Ho, eir Legal Department

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-00055709-001

16/03/2023

The Complainant commenced employment with the Respondent on 9 September 2019 as a Desktop Support Agent and was paid a salary of €35,000 per annum. He stated that he was discriminated against by the Respondent when he was informed that he would have to retire from his position on 1 July 2023 when he turned 65.

The Complainant stated that he was not allowed to work beyond his 65th birthday which fell on 1 July 2023. He stated that this was unfair because he loved his job and had performed very well in his role.

The Complainant was 61 years of age at the time of entering the contract of employment and his hiring intersected with a review by the Respondent of its pension schemes and proposals to align the retirement age of the Defined Contribution Pension Scheme to the Defined Benefit Pension Scheme which was age 65. This change was notified to all staff in April 2020 and was effective from 1 July 2020 and as a result, the Complainant’s retirement age was increased to age 65.

The Complainant was turning 65 on 1 July 2023 and he was notified of his upcoming retirement in January 2023. The Complainant made a formal request to work past age 65 on 8 February 2023 and this was sent to HR in line with the Respondent’s Retirement Policy.

A meeting was scheduled with the Complainant on 23 February 2023 with Ms Marion Monaghan, HR Generalist and the Complainant’s line manager, Ms Roisin Clancy, Director of IT Operations, to review the Complainant’s request. Following this meeting, a decision was made not to extend the Complainant’s retirement age beyond age 65. In the decision letter, issued on 14 March 2023, the Complainant was assured that his performance was not at issue and the reasons for the refusal of the request was set out.

Following receipt of this decision, the Complainant requested an appeal. Notwithstanding that an appeal is not part of the process under the Retirement Policy, an appeal meeting was arranged for the Complainant with James Mangan, HR Director. This meeting took place on 5 April 2023 and following the meeting Mr Mangan gave due consideration to the matters discussed by the Complainant during the course of the meeting. Thereafter a final decision was issued to the Complainant on 14 April 2023, which upheld the original decision not to extend the retirement age. The final decision reiterated the grounds from the original decision which referred to the Company’s legitimate reasons for maintaining a retirement age of 65 across the organisation.

Thereafter the Complainant continued in his employment until his employment terminated on his 65th birthday on 1 July 2023, in line with the contractual retirement date.

Section 6(1) of the Act provides, in relevant part, as follows: -

“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 insubsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue ofparagraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

( a) that one is a woman and the other is a man (in this Act referred to as “ the gender ground”), … ( f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “ the age ground”),

Section 6(3(c) provides as follows:

Offering a fixed term contract to a person over the compulsory retirement age for that employment or to a particular class or description of employees in that employment shall not be taken as constituting discrimination on the age ground if—

(i) it is objectively and reasonably justified by a legitimate aim, and (ii) the means of achieving that aim are appropriate and necessary.

Section 34(4) of the Act provides for certain savings and exceptions relating to the family, age, and disability grounds. Subsection (4) of that Section 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 — (i) it is objectively and reasonably justified by a legitimate aim, and

(ii) the means of achieving that aim are appropriate and necessary”. Section 85A (1) of the Act provides: -

85A.—(1) 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.

Findings

Both parties accepted that there was a mandatory retirement age in place across the organisation, which was communicated to the workforce via the revised Retirement Policy on 1 July 2020.

I noted however that the policy was not applied universally and that three employees were retained by the Respondent after they turned 65. Specifically, Mr Mangan gave evidence of one employee who was working on a specific and crucial element of an IT project that was being outsourced and given his critical role in the project, was allowed to work for 1 year after he turned 65. Additionally, he stated that two other employees, engaged on a Feet on the Street campaign, were allowed to work beyond 65 because there had been issues around the notification of their retirement dates and confusion after a transfer of their employment to the Respondent via a transfer of undertaking.  Based on Mr Mangan’s evidence, I find that the decision to retain these employees was exceptional and does not in and of itself undermine the Respondent’s policy that all employees should retire at 65.

The next question I must consider is whether there is objective justification that is reasonably justified by a legitimate aim for having a mandatory retirement age of 65. In seeking to answer this question, I firstly noted the evidence presented by Mr. Mangan regarding the need for promoting intergenerational fairness. Additionally, he outlined the necessity for effective succession planning and the importance of maintaining age balance in the workforce to uphold the individual dignity of an employee, especially in a “safety critical” role, as set out in their retirement policy.

When examining the matter of intergenerational fairness and the associated need to safeguard career pathways while preserving skills and knowledge, in the context of this complaint, it is noteworthy that the Complainant held the position of a Desktop Support Agent. Given the specific position he occupied, and with due respect to his junior role, I am unconvinced that retaining him in employment would have impeded the career progression of any other employee.

When examining the Respondent’s suggestion that the retirement of the Complainant was objectively justified on the grounds of succession planning or the desire to maintain an age balance in the workplace, I find that neither their succession plans nor a potential cliff-edge scenario—where a substantial number of employees might retire simultaneously, as set out in their Retirement Policy—would have been affected or arisen if the Complainant was retained in his employment. I make this finding because of the small and non- strategic IT department in which the Complainant worked, coupled with the non-critical nature of the role he fulfilled within the Respondent’s organisation.

I also noted Mr. Mangan's evidence regarding the potential bureaucratic challenges and recognise the additional costs that would both inevitably arise for the Respondent if they were not to have a single retirement age across the organisation. He highlighted that this consideration is particularly relevant given that 85% of the roles are field based. I also noted that the impact of health and safety concerns on these roles can vary significantly depending on both their nature and how much time is spent in them. I must confine my assessment to the complaint at hand however and while recognising the validity of health and safety concerns for a significant majority (85%) of the Respondent's workforce, as set out above, find that such considerations are not germane to this complaint. This is because the Complainant's role is exclusively office and desk-based, rendering the Respondent’s understandable health and safety concerns associated with field-based roles irrelevant. 

Having regard to the foregoing points, I find that the decision of the Respondent to refuse to allow the Complainant to work beyond 65 was not objectively justified on any of the grounds set out in the Respondent’s retirement policy, given his specific role and the nature of it. This is at odds with the suggestion of McKechnie J of Donellan v Minister for Justice, Equality and Law Reform and others [2008] IEHC 467, where he stated that the imposition of retirement age should be individually assessed on a case-by-case basis. I further note that the Respondent’s evaluation of the Complainant’s application to work beyond 65 was akin to the approach taken by the Respondent in the case of Patrick O'Callaghan v Ferrero Ireland (ADJ 43459). In that matter, the Adjudication Officer, in echoing McKechnie J in Donnellan stated that the Respondent’s “position clearly lacked an element of individual assessment” and that "No evidence of a test of compatibility of the purported legitimate aims, directed specifically at the individual characteristics of the Complainant, was given."  This similarity highlights a lack of demonstrated scrutiny regarding the compatibility of the stated legitimate aims of the Respondent in the instant case with the specific characteristics of the Complainant.

Finally, I also have regard to the Code of Practice on Longer Working and note the suggestion therein that employers need to consider the “changing statutory and legal framework in regard to retirement and pension entitlements”. I also note that McKechnie J, in finding that Donnellan was not discriminated against, highlighted the pension entitlements afforded to members of the Gardai stating "Furthermore the structure of a Garda’s career is such that he can attain the highest office within his term of service and hold that position for a reasonable period. Moreover, and I know of no other employment position where this is possible, a member can retire after 30 years of service with a full pension at age 50. Thus, in addition to the financial package, which in this case is significant, a member’s age of retirement is such that the prospect of a second career is very much open."

In the context of this complaint, I note the Complainant’s limited skillset, that he is still seeking work and that his only income, having turned 65 on 1 July 2023, is just over €200 per week in social welfare payments, which is less than 40% of what he earned when he was employed by the Respondent. There was no evidence presented however to suggest that the Respondent considered his future job prospects and the anticipated reduction in his income when deciding to terminate his employment.

Overall, I find that the Complainant has established a prima facie case of discrimination because he was dismissed from the Respondent on age grounds when he turned 65 on 1 July 2023. I also find, for the reasons set out above, that the Respondent has failed to successfully rebut the presumption of discrimination because they did not act in compliance with Section 34 (4) of the Act.

The Law

82.—(1) Subject to this section, the types of redress for which a decision of the F142[Director General of the Workplace Relations Commission] under section 79 may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:

(a) an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 3 years before the date of the referral under section 77(1) which led to the decision;

(b) an order for equal remuneration from the date referred to in paragraph (a);

(c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77;

(d) an order for equal treatment in whatever respect is relevant to the case;

(e) an order that a person or persons specified in the order take a course of action which is so specified

(f) an order for re-instatement or re-engagement, with or without an order for compensation.

Findings

I find that the Respondent has discriminated against the Complainant on age grounds for the reasons set out above.

In deciding on the appropriate redress, I accept the Complainant’s evidence that he has been actively engaged in seeking employment since his departure from the Respondent on 1 July 2023 but that he has been unable to find work. In addition, it was clear both from the evidence presented at the hearing and the minutes of the meetings that the Complainant had with the Respondent’s witnesses prior to his retirement that there was an excellent relationship between the parties during his employment and that he was a much-valued employee.

I therefore believe that the Complainant should be allowed to resume his employment and accordingly order that he be re-instated in his previous role with effect from the date of his retirement, namely 1 July 2023. I make no additional award of compensation for the effects of the discrimination because the Complainant only sought an order of re-instatement or re-engagement.