Complainant

Respondent

Parties

Mary  Costigan

South Leinster MABS CLG

Representatives

Mr Ned Costigan

Mr Patrick Dowdall

Mr Mark Curran BL, instructed by RSM Consultants

Act

Complaint Reference No.

Date of Receipt

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

CA-00052817-001

14/09/2022

The Complainant alleges discrimination on grounds of age when she was required to retire on 4 May 2022 at age 66. The Respondent submits that the Complainant was retired from her employment in line with the agreed company union collective agreement and that the mandatory retirement age of 66 is objectively and reasonably justified by a legitimate aim.

Oral Evidence of the Complainant (on oath)

The Complainant was employed as an administrator for over 10 years with the Respondent on a series of fixed-term contracts working 20 hours per week. The Complainant’s annual salary was €21,726.12. The last fixed-term contract issued to the Complainant was due to expire on 31 December 2022. The Complainant was advised by her line manager that she was required to retire on 4 May 2022 on reaching the age of 66. The Complainant told the hearing that she had a reasonable expectation of being permitted to work beyond 66 for several reasons. First, the Complainant’s contract was silent on retirement age. Second, it had been confirmed in writing to the Complainant following a reorganisation in 2018 that her terms and conditions would remain unchanged following the restructure. Third, she did not sign the 2020 staff handbook which provided for a retirement age of 66 and she had been advised that a handbook was a guide only which did not over write her contract of employment.  Fourth, the Complainant enjoyed her work tremendously. She was a diligent, flexible, and hard-working employee. The Complainant told the hearing that she was fit and capable and had many more working years to give. The Complainant described how upset and distressing it was to be forced to retire. The Complainant outlined that she could make no sense of why she was compelled to retire given her years of experience and knowledge of the job and that then another person, without that level of knowledge or experience, is hired to do the job that she was doing and that she was perfectly capable of continuing to do.

The Complainant received a letter from Ms Michelle O’Hara, Regional Manager South Leinster MABS on 11 March 2022. This letter was opened at the hearing. It advised the Complainant that a retirement age had been collectively agreed with the union and that this formed part of the Complainant’s contract of employment. It explained to the Complainant that the Citizens Information Board (“CIB”) had objective justification to apply a mandatory retirement age of 66 to the Complainant. The Complainant outlined that no one told her in simple terms why she could not remain in employment, and she felt management were talking over her when referring to matters such as ‘objective justification’.

On 22 March 2022, by email to her line manager, the Complainant raised a formal grievance regarding her proposed retirement. In that email the Complainant requested an extension to her retirement date on the grounds that: (a) she was more than capable of continuing to work and wished to continue in employment for a longer period, and (b) the objective justification set out in the letter of 11 March 2022 did not justify mandatory retirement from her specific position at age 66.

As part of that process the Complainant was asked by the Corporate Services Manager what she was looking for. The Complainant told the hearing that at first she requested to be permitted to work until the end date of her fixed-term contract (31 December 2022) or to age 67, but in truth she did not want to confine herself to a timeframe as she wanted to work for as long as she was capable of doing so. Further, one of her colleagues, who is still employed with the Respondent, was permitted to work beyond age 66. The Complainant outlined that she felt rushed in articulating her grievance to the Respondent and that she did not feel supported.

The Complainant stated that she was not offered the role of Regional Administer doing 17.5 hours, and that within weeks of her retirement another person was hired to do the role she had been doing.

In cross-examination the Complainant accepted that she was a member of Unite the Union. The Complainant accepted that she had not contacted the trade union in relation to her proposed retirement. The Complainant confirmed she spoke to a solicitor, who was a friend, but that she could not afford to engage a solicitor to assist her with her complaint. The Complainant confirmed she did not ask the Respondent for more time to articulate her grievance. The Complainant accepted she received the company-union agreed handbook in 2020. In reply to the question of why she did not attend the Pre-Retirement Course offered by the Respondent, the Complainant stated that she did not accept that she had to retire. In reply to the question of whether she would have been willing to work less hours, the Complainant stated that no one asked her if she would be so willing. It was put to the Complainant that no one was hired specifically to fill the job she was doing. In reply to the question of whether the Complainant considered applying for the vacancy of Regional Administrator, the Complainant said no she did not apply as it was a full-time vacancy, and she did not want a full-time role. In reply to the question of whether she had suggested to management that she perform the role on a half-time basis, the Complainant replied “no”. It was put to the Complainant that the role of Regional Administrator was first advertised as a part-time role requiring 17.5 hours work per week. The Complainant confirmed that she was in receipt of the state pension and that she did not question her exclusion from the Respondent’s pension scheme until her retirement.

The Complainant confirmed to the Adjudication Officer that she joined Unite the Union in 2018 and remained a member of that trade union until her retirement. The Complainant submitted that she did not understand the implications of a collective agreement or its impact on the contract of employment or her terms and conditions. The Complainant added that she knew very little about trade unions and did not sign the handbook.

The Complainant submitted that she had no knowledge of the age profile of the existing workforce and could not see how the age profile of the Respondent workforce could impact on the age profile of clients availing of the services of MABS. The Complainant outlined that she cannot comprehend how a younger person could perform the role any better compared to an experienced older worker.

Closing remarks

The Complainant was discriminated on grounds of age. The Complainant had a reasonable expectation of working beyond age 66 as there was no mandatory retirement age in the Complainant’s contract of employment. The Complainant’s contract supersedes the company-union agreement on retirement age. There is another employee in a similar role to the Complainant who is over age 66 and still in the employment of the Respondent. It is not plausible that the Respondent does not know this person’s age. Where a retirement policy is not applied consistently, it cannot be said that such a policy in fact exists. In this regard, the hearing was directed to the example of “Dimitri” detailed within the Irish Human Rights and Equality Commission’s guideline on retirement and fixed-term contracts. Further, the retirement age for public servants employed prior to April 2004 is age 70. MABS is aligned with the public sector. It was submitted that adding a handbook to a contract of employment must result in conditions of employment which are equal to or better than those set out in the original contract of employment. Under EU law, any ambiguity in a contract is to be interpreted in favour of the consumer (or in this case, the employee). Had the state pension age increased as was originally planned, this would have impacted the Respondent’s staffing strategy further. Government policy is to provide for the right of an individual to continue working beyond state pension age if they so wish, and if it was government policy that the Respondent had agreed to follow, then the Complainant should have been permitted to work beyond age 66. The Kenny decision has no application as it related to health and safety concerns which are not relevant in this case. The figures presented by the Respondent on the age profile of the Respondent organisation are misleading.

Evidence of Mr Paul Tucker (on oath)

Mr Tucker is the Chair of South Leinster MABS. He also fulfils the role of Chair of the Employer Union Executive and is the joint Chair of the Employer Union Forum.

Mr Tucker outlined that the Citizens Information Board (CIB) is the statutory body with responsibility for the  Money Advice and Budgeting Services (MABS).  A restructuring programme was completed in 2018 of the MABS companies from 53 local companies to 8 regional companies. This reorganisation was achieved in part via natural attrition and without the need for redundancies.

Prior to the restructuring programme a retirement age of 65 existed within the organisation for 95% of staff. A workforce profile analysis in 2019 gave rise to a significant concern of an unbalanced age profile which would result in a considerable portion of the workforce retiring within a confined period.  A strategy was agreed to address the imbalance which included a policy of compulsory retirement age aligned with the State Pension Age. Further, CIB tracked the age of clients and formed the view that as staff aged so too did the age profile of those using the service. The impact of this was that MABS was not attracting younger clients who needed their services. A document containing statistics for the South Leinster MABS (“SL MABS”) was opened at the hearing. This covered the period January to June 2019. Of new clients, the average age profile was: age 19-25: 3%; age 26-40: 26.5%; 41-65: 63.5%; and over 65: 7%.  

The client base was changing to younger professional persons availing of MABS services. Presently the age profile of the organisation is more balanced. A pie chart of the MABS age profile for 2022 was opened at the hearing.

A harmonisation agreement was concluded in 2020 with Unite the Union, which included an agreement on a new staff handbook (the agreement also covered pay frequency and staffing strategy). The harmonisation agreement also provided for additional benefits including increased leave; death-in-service benefit; and a once off €50 voucher. It is company practice to require staff to refamiliarise themselves with the provisions of the staff handbook in January of each year.

The agreed staff handbook provides for a retirement policy, including a mandatory retirement age. This staff handbook, dated 10 July 2020 (version 1), was opened at the hearing. It provides that the normal retirement age for employees of the organisation would be linked with the State Pension age (“currently 66, rising to 67 in 2021 and 68 in 2028”). It described the legitimate aims of setting a retirement age within the MABS network as follows:

·       To establish intergenerational fairness.

·       To encourage motivation and dynamism through the increased prospect of promotion.

·       To comply with the Organisation’s responsibilities regarding health and safety.

·       To ensure a balanced age structure in the workforce.

·       To preserve the personal and professional dignity of employees.

·       To engage in succession planning.

At a MABS-Unite EUF Meeting on 8 October 2020 the Chair referred the group to the section of the handbook on the retirement policy and it was agreed that the retirement policy was in line with the state pension age and that the ages in brackets i.e., “(currently 66, rising to 67 in 2021 and 68 in 2028)” were only an indication and that the retirement policy remained 66 until the government makes a decision on state pension age.

Mr Tucker outlined that a Service Agreement exists between CIB and each regional MABS company. CIB approves funding and headcount for each regional MABS company. MABS staffing strategy must be developed within existing headcount and/or existing salaries budget.

Each MABS company structure includes provision for a Regional Manager and a dedicated Regional Administrator post to support the regional company. Money Advisors report into Managers, who in turn are supported by service delivery and support administrators. The Complainant worked part-time for 20-hours per week as a support administrator.  It was not possible to allow the Complainant to continue to work with the Respondent until her contract came to a natural end on 31 December 2022 as there was an immediate need to fill the Regional Administrator vacancy. The Respondent could not fill the Regional Administrator role on a full-time basis until retirements had taken place as the MABS staffing strategy could only be developed within existing headcount or existing salaries budget. The SL MABS company was approved for 60 hours of administration work only. The Regional Administrator vacancy could only be advertised on a part-time basis (17.5 hours), but the Respondent had no success in filling the role on a part-time basis. Further, neither the Complainant or any of the existing staff applied for the Regional Administrator vacancy. The Complainant’s retirement was in line with the Respondent’s succession plan. The Respondent considered the request to allow the Complainant to remain for a period beyond the retirement age; however, this was not possible because the Respondent needed to fill the Regional Manager role, and to do the latter, the Complainant’s retirement was necessary.

In cross-examination Mr Tucker agreed that workers were not HR professionals. It was put to Mr Tucker that if an older worker applied for a vacancy, then the Respondent could not discriminate on grounds of age. Mr Tucker stated in reply that the organisation was aware of its legal obligations and management were trained in relation to recruiting within the law. The reality for the Respondent was that the organisation had a disproportionate number of older workers employed, and this had to be addressed. Mr Tucker added that most staff were happy to retire at age 66 but that the organisation considers any requests to remain working longer. In the case of the Complainant, her request to remain working longer was considered but the Respondent could not offer the Complainant work beyond age 66 because of its succession plan and the need to implement the business strategy. In response to the question as to whether the Respondent could have let the contract expire naturally, Mr Tucker replied that the easy thing to do would have been to let the contract expire on 31 December 2022, but this would have gone against the staff succession plan and company strategy. The Respondent accepted that there was no retirement age in the Complainant’s contract of employment. It was put to the Respondent that the Complainant had a reasonable expectation to remain until the age of 67. This was refuted by Mr Tucker, who stated that the agreed company-union handbook was clear: retirement age was linked to the state pension age which was age 66. The Respondent denied that the Complainant was a public sector employee but clarified that the Respondent was a state financed entity within the community sector. Mr Tucker was asked how would allowing the Complainant to remain one further year impact on the Respondent’s succession plan. In response, Mr Tucker outlined that the Respondent was under pressure to fill the vacancy of Regional Administrator on a full-time basis as the Respondent had no success in filling the vacancy on a part-time basis, and to fill the role on a full-time basis the Complainant’s retirement was essential as CIB would not authorise additional headcount or expenditure outside of that already approved for the SL MABS. It was denied that the Respondent did not retain the Complainant in employment because she was not competent to perform the role of Regional Administrator. It was put to Mr Tucker that the Complainant’s role was filled by another younger person after the Complainant’s retirement. This was denied. It was put to the Mr Tucker that the Respondent has in its employment another administrator who is over age 66 and that she has not been required to retire. Mr Tucker denied that he was aware of any employee in the employment of the Respondent who is aged over 66. Mr Tucker added that the Respondent was not aware of the actual age of the person referred to as this information was not on file. However, if it was the case that this person was over 66, she too would be subject to the terms of the Respondent’s retirement policy. Mr Tucker stated that the preferred retirement age of the Respondent was 65, however; the union sought a retirement age aligned with state pension age and this was agreed with the Respondent.

Mr Tucker confirmed to the hearing that at the time the Complainant was employed there were 3 administrators working 20 hours each per week.

Evidence of Ms O’Hara (on oath)

Ms O’Hara has responsibility for the day to day running of the SL MABS company, which includes 7 offices and 40 staff. Ms O’Hara worked as an administrator for 20 hours per week employed on a fixed-term contract to back fill a substantive job holder. Another employee was entitled to go back into this substantive post and accordingly, the Complainant was employed to temporarily fill this position. The substantive post holder gave notice to return to the post being filled by the Complainant, before resigning in October 2022. Only then was the position which had been filled by the Complainant re-advertised.

The normal procedure before a person retires is for the line manager to engage with the staff member 9 to 12 months prior to the retirement date. As per the retirement policy staff may request to reduce their hours of work in the months preceding the retirement date as a measure to prepare for retirement. Staff are also encouraged to attend a pre-retirement training course. The Complainant refused to attend this course.

Counsel for the Respondent opened a letter sent by Ms O’Hara to the Complainant dated 11 March 2022. Ms O’Hara outlined to the hearing that in this letter she advised the Complainant of the provisions of the handbook on retirement, and that this handbook formed part of the Complainant’s contract of employment. Ms O’Hara detailed that this letter confirmed to the Complainant that in line with the handbook, she would be retired from her role on 4 May 2022. The objective justification for the retirement age of 66 was outlined in this letter which reflected the objective justification terms outlined within the handbook.

A letter dated 25 April 2022 sent from Ms O’Hara to the Complainant was opened at the hearing. Ms O’Hara explained that the purpose of this letter was to communicate the outcome of the Complainant’s formal grievance and her application for an extension to her retirement date. In this letter Ms O’Hara advised the Complainant that the Respondent did not accept that the Complainant was not aware of the collectively agreed retirement age of 66; that she had agreed to same; and that she had enjoyed the many benefits arising out of the agreement. Taking the foregoing into consideration, Ms O’Hara confirmed to the Complainant that her request to work beyond age 66 was denied and that the Complainant would retire at age 66.

Ms O’Hara detailed that of the list of objective grounds cited in the letter, the three grounds applying to the Complainant were ‘intergenerational fairness’; ‘succession planning’; and ‘balanced age structure’. CIB had raised a concern regarding the age profile of staff, and CIB’s concern was of concern to Ms O’Hara because it raised the issue of whether SL MABS was fulfilling its service agreement with CIB if SL MABS was not attracting the age profile of clients that needed its services most.  Ms O’Hara added that if the company did not implement a succession plan the company would be in “trouble” as there would be a “brain drain”. In 2019 only two employees in the SL MABS company were under age 40. Ms O’Hara outlined to the hearing how SL MABS needed a dedicated Regional Administrator for SL MABS. CIB would not approve advertising the role on a permanent basis until SL MABS retired two existing staff, one of whom was the Complainant.  The Complainant had requested an extension to her contract until age 67; however, the staffing structure and filling the role of Regional Administrator could not be achieved unless the Complainant was retired from her employment. Ms O’Hara outlined that there was no response from the Complainant to her letter of 25 April 2022, and Ms O’Hara thought that was the end of the matter. Ms O’Hara confirmed to the hearing that due to an oversight she omitted to advise the Complainant of the option to appeal her decision.

In cross-examination Ms O’Hara was asked how agreeing to retain the Complainant beyond the age of 66 would impact on the Respondent’s objectives to prevent brain drain and to attract a younger client base by hiring younger staff. Ms O’Hara outlined that the Respondent already retired staff at 65, and that the new retirement policy merely delayed but did not derail its staffing objectives. Ms O’Hara was asked how the Respondent enforces retirement age if it does not ask staff for their dates of birth. Ms O’Hara responded that the date of birth of the member of staff named was not known to the Respondent as this detail had not been sought from this individual. The Respondent could not compel this member of staff to share this personal information as they had transferred from another legal entity.

Closing remarks

The Respondent conceded that the Complainant had established a prima facie case of discrimination on the ground of age and that therefore the onus had shifted to the Respondent to prove that the mandatory retirement age was reasonably justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. The Respondent submitted that the compulsory retirement age of 66 in respect of the Complainant was objectively and reasonably justified by reference to the lawful aims of ensuring a balanced age structure in the workforce (20%) and to engage in succession planning (80%). These aims were appropriate and necessary. A workforce analysis in 2019 showed an unbalanced age profile which gave rise to concerns for the funder (CIB). A staffing strategy was agreed to address these concerns. The collective agreement and the filling of the vacancy of Regional Administrator were key to implementing that strategy. The role of Regional Administrator could not be filled until retirements took place. For several months prior to the proposed retirement date, the Respondent sought to engage with the Complainant. The letter to the Complainant set out the Respondent’s legitimate aims. The Complainant never alerted the Respondent to requiring more time to articulate her grievance. She should have engaged with her union but did not. In any event she spoke with a solicitor. The Respondent heard her grievance and gave a clear written response. The Respondent has never denied the Complainant’s value or worth. The facts were that her hours were needed to fill the full-time vacancy of position of Regional Administrator. The Complainant was at all material times aware of the compulsory retirement age of 66 by virtue of the company handbook together with the fact that colleagues had retired at pensionable age. The handbook was agreed with the union. The Complainant’s request for an extension to her retirement age was seriously and carefully considered. There is no evidence to show that the Complainant was treated differently to any other staff member who had reached retirement age. It is not accurate to say that the Complainant was not given a right of appeal, rather the issue was raised with her line manager and then heard by the regional manager. In any event the Complainant wasn’t following the grievance procedure as she asked the board to consider her grievance. The Respondent does not know the named comparator’s date of birth. The Respondent submits that the decision of the Labour Court in Bord na Mona plc v Kenny EDA2232 is directly applicable to this complaint.

Law

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. Several legitimate aims have been recognised such as: (a) intergenerational fairness; (b) the availability of a retirement pension; (c) creating a balance of generations in the workplace; (d) the efficient planning of the departure and recruitment of staff; (e) dignity and avoiding humiliating disputes on fitness; and (f) health and safety grounds (Bolger, Bruton and Kimber, Employment Equality Law (2nd ed., Round Hall Press, 2022). In Köhler v Land Hessen, (Case–159/10 and Case C–160/10) OJ 2000 L 303) the ECJ held that cost considerations cannot in themselves constitute a legitimate aim within the meaning of Art 6(1) of the Framework Directive.

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 (“the Acts”) permits 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 appropriate and necessary. 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 be individually assessed i.e., on a case-by-case basis.  

Further McKechnie J held that where multiple reasons are given for a compulsory retirement age, it is enough if one or more amount to a legitimate aim: “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”.

Discrimination is defined at s 6 of the Acts 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 85A(1) of the Acts 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”. 

Whether a measure is discriminatory is an evidence-based one. Mere generalisations are not sufficient. 

The Labour Court held in Earagail Eisc Teoranta v Richard Lett (EDA1513) that 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 an expressed or implied condition of employment which limits an employee’s tenure to the point at which they attain a specified age.

An employer is generally also required to establish that there is a contractual retirement age that forms part of the terms and conditions of employment. In Connaught Airport Development Limited T/a Ireland West Airport Knock And John Glavey (EDA1710), the Labour Court stated that s 34(4) of the Acts, prima facie, allows for the fixing of “. . . a retirement age without contravening the prohibition of discrimination on grounds of age. The jurisprudence of the CJEU on the circumstances in which compulsory retirement is saved by Article 6 of the Directive is relevant only if the Court finds that a retirement age was in fact fixed by the Respondent and that the retirement age applied to the Complainant”.

The Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017 (S.I. 600/2017) 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.

Findings

The Respondent in this case must establish: (a) a contractual retirement age of 66 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.

Does a retirement age apply to the Complainant?

It is common case that the Complainant’s contract of employment (dated 19 October 2015) was silent on retirement age. It is also common case that a harmonisation agreement was concluded in 2020 with Unite the Union, which included an agreement on a new staff handbook. This handbook provides for a retirement policy, including a mandatory retirement age linked with the State Pension age (currently 66). The handbook lists the legitimate aims of setting a retirement age within the MABS network which includes inter alia ensuring a balanced age structure in the workforce and engaging in succession planning. It was submitted by the Complainant that the handbook did not supersede her contract of employment and that she had not signed a copy of the staff handbook. It is common case that the Complainant was a member of Unite the Union at the time the collective agreement was concluded and continued to be a member of Unite the Union until her retirement.  

I am satisfied that a contractual retirement age of 66 formed part of the Complainant’s terms and conditions of employment. I do not accept the Complainant’s submission that the handbook does not supersede her contract of employment. Rather I am satisfied that a compulsory retirement age was incorporated into the Complainant’s contract of employment through collective agreement. I note that provision is made at Clause 29 of the Complainant’s contract of employment for a ‘revision of conditions of employment’ where approved by staff and the Respondent, and that within the introduction section of the staff handbook it states “[t]he staff handbook forms part of the contract of employment”. Therefore I accept the Respondent’s submission that the collectively agreed retirement age (currently 66) applied to the Complainant. Further, I note an email dated Tuesday 22 March 2022 which was sent by the Complainant to her line manager. This email confirms for me that the Complainant was aware of the provisions of the handbook in relation to retirement age, and that this is what prompted her to apply for an extension to her retirement date.  Finally, I note that the normal retirement age was 65 prior to the harmonisation agreement; that most staff retired at this age; and that the preference of the Respondent was to preserve that retirement age. However, as part of the collective negotiations between the Respondent and Unite the Union, a retirement age aligned with the State Pension Age was agreed, amongst other benefits for staff, and that the Complainant was the beneficiary of these agreed terms, which included an extended period of employment to age 66.

Does the retirement age of 66 serve a legitimate aim? and was the means of achieving that aim proportionate in the circumstances?

It is well established that the imposition of a mandatory retirement age is discriminatory per se. It was accepted by the Respondent that the Complainant has established primary facts of sufficient significance to raise an inference of discrimination, and that the burden of proof has shifted to the Respondent to show that discrimination has not occurred. As set out in s 34(4) of the Acts a mandatory retirement age is discriminatory on grounds of age unless it is objectively and reasonably justified by a legitimate aim and the means of achieving that aim are appropriate and necessary (i.e., proportionate). As stated by the Labour Court in Bord na Mona plc v Kenny, EDA2232, “[o]bjective justification for interfering with an individual’s employment rights requires a proportionality assessment to balance conflicting interests that must be decided on the facts of each case” (emphasis added).

In respect of the Complainant, the Respondent submitted that the Complainant’s retirement at age 66 was necessary and appropriate to serve the aim of ensuring a balanced age structure (20%) but primarily for the purpose of succession planning (80%). These reasons for requiring the Complainant to retire at age 66 were communicated to the Complainant in writing on 11 March 2022 and again on 25 April 2022, in advance of her retirement and following her request to work longer.

Legitimate Aim I: A Balanced Age Structure (20%)

The Respondent submitted that in 2019 it had in its employment a disproportionate number of older workers and that this had to be addressed. These concerns informed the collective negotiations on retaining a compulsory retirement age and a strategy was agreed to address the imbalance which included a policy of compulsory retirement age aligned with the State Pension Age. I accept in general that a mandatory retirement age may be objectively justified to address such an imbalance. I note that a mandatory retirement age of 65 had been in existence for many years within the MABS network for most staff prior to the age of 66 being collectively agreed, and yet there was still a disproportionate number of older workers in 2019. However, I am satisfied that if a mandatory retirement age was not agreed, this may have compounded the age imbalance further. Therefore, I am satisfied that the Respondent has discharged the burden on it of identifying from the general context a legitimate aim for a mandatory retirement age. As noted above, where multiple reasons are given for a compulsory retirement age, it is enough if one or more amount to a legitimate aim.

The establishment of a legitimate aim is only one step of the process and therefore it remains for consideration whether the retirement age of 66 is appropriate and necessary in respect of the Complainant. As noted above, a measure may indeed pursue a legitimate aim but may not pass the test of proportionality in any individual case. As stated by McKechnie J in Donnellan: “the measure must go no further than is required to reach the legitimate aim and must do so in the least restrictive way possible” (at [98], emphasis added). A useful summary of the EU caselaw in relation to age discrimination is the persuasive authority from the UK Supreme Court in Seldon v Clarkson, Wright & Jakes [2012] UKSC 6 in which Lady Hale notes:

“It is one thing to say that the aim is to achieve a balanced and diverse workforce. It is another thing to say that a mandatory retirement age of 65 is both appropriate and necessary to achieving this end . . . [t]he means have to be carefully scrutinised in the context of the particular business concerned in order to see whether they do meet the objective and there are not other, less discriminatory, measures which would do so” (per Lady Hale at [62]).

According to the Respondent, the age profile of staff in 2019 was of concern to the Respondent for two reasons: (i) as employees aged, so too did the age profile of clients using MABS, and (ii) there would be a ‘brain drain’ as a considerable portion of the workforce would retire within a confined period. I am obliged to consider this legitimate aim (achieving a balanced workforce) in relation to the Complainant’s compulsory retirement in May 2022. In relation to point (i) the Respondent submitted that the impact of this correlation (aging workforce/aging client profile) was that MABS was not attracting younger clients who needed their services. During the hearing the Respondent proffered no independent research or supporting evidence to back this proposition. The Respondent was unable to address the hearing in relation to how CIB had come to this conclusion, other than to say that they had. Therefore, in respect of this matter, I do not accept that the mandatory retirement of the Complainant was appropriate and necessary to mitigate against this supposed correlation between the age of staff and the age of those using the services of MABS.

In relation to point (ii), the potential for a ‘brain drain’ within a ‘confined period’, Mr Tucker gave evidence that the age profile of the organisation was “more balanced” by 2022. A pie chart of the SL MABS age profile for 2022 was opened at the hearing. This pie chart was based on 48 members of staff within SL MABS at the time. No percentages were inserted. Accordingly, the following percentages are estimates based on that diagram. In 2022, the year of the Complainant’s retirement, approximately 5% of staff were under the age of 40; 40% aged between 41 and 50; 40% aged between 51 and 60; and 15% age 61 and over. In short, half of the work force were under age 51 and half of the workforce were age 51 or over at the time of the Complainant’s retirement. No data was presented to the hearing on the spread of retirement dates for those staff members aged 51 and above. The ‘confined period’ referred to could be as long as 15 years, and therefore, there may be a considerable number of years to absorb the impact of these retirements. I am not satisfied, based on the generalised data presented to the hearing, that there is evidence to support Mr Tucker’s assertion that “a considerable portion of the workforce would be retiring within a confined period” and that therefore the Complainant’s retirement in May 2022 was appropriate and necessary to serve the purpose of avoiding a brain drain. Further, if the Respondent was concerned about a ‘brain drain’ it seems contrary to logic that the organisation would retire an experienced and knowledgeable employee such as the Complainant.

Legitimate Aim II: Engaging in Succession Planning (80%)

The Respondent submitted that the primary purpose for compelling the Complainant to retire in 2022 was to engage in succession planning. The Respondent submitted that it considered the Complainant’s request to remain for a period beyond the collectively agreed retirement age; however, this was not acceded to because there was an immediate need to fill the Regional Administrator vacancy, and to do the latter, the Complainant’s retirement was necessary. The Respondent gave evidence as to why it was necessary to fill the Regional Administrator’s role as a matter of urgency. The Respondent further submitted that it could not fill the Regional Administrator role on a full-time basis until two pending retirements (which included the Complainant) had taken place as the SL MABS staffing strategy could only be implemented within existing headcount or existing salary budget. I accept the Respondent’s submission that it had no success in filling the role on a part-time basis, and that no existing staff (including the Complainant) applied for the role when advertised. However, I am not satisfied that compelling the Complainant to retire in May 2022 in order to fill the Regional Administrator role was proportionate in the circumstances. I am satisfied that there may have been other less restrictive measures which would have met the legitimate aim instead. For example, it was not outlined to the hearing why an additional budget was not sought from CIB to fill the Regional Administrator’s role as opposed to compelling the Complainant to retire.

In conclusion, I find that a retirement age was provided for in the Complainant’s contract of employment and was known to her. Based on the evidence presented to the hearing, I find that the collectively agreed mandatory retirement age of 66 within the Respondent organisation is objectively and reasonably justified by legitimate aims but, in relation to the compulsory retirement of the Complainant, the means of achieving these aims was not appropriate and went further than what was necessary. The effects of discrimination crystallised when the Complainant’s employment was terminated on 4 May 2022 thereby denying her a further period of employment. The Complainant had an exemplary work record, and she was entirely capable of working beyond age 66, and there was a continuing need for the work performed by the Complainant, at least until the return of the substantial job holder.

For the foregoing reasons, I find that the Complainant’s compulsory retirement at age 66 was constituted an act of discrimination within the meaning of s 6 of the Acts. I determine that the appropriate form of redress is an award of compensation under s 82 of the Acts.

CA-00052817-001

I decide that the Complainant was discriminated against on the ground of age, and that this complaint under the Employment Equality Acts 1998-2015 is well-founded. I order the Respondent to pay the Complainant €15,000 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”.  This award is not in the nature of remuneration.

Compulsory retirement. Age discrimination.