Complainant

Respondent

Parties

Tony  Farrell

Mondelez Ireland Production Limited.

Representatives

SIPTU

IBEC

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-00057360-001

26/06/2023

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

CA-00057360-003

26/06/2023

The complainant submitted two complaints of discrimination on age grounds under Section 77 of the Employment Equality Acts.

The complainant commenced employment with the respondent on 1st September 2001 as a Production Operative in their Cadbury’s site in Coolock.

The complainant worked 33.5 hours per week on weekends shifts and had a gross weekly wage of €900.

His request to remain in employment until age 67 was refused, and his employment was terminated at age 66.

The last act of discrimination occurred on 22nd May 2023.

He submitted his complaint to the WRC on 26th June 2023.

The respondent raised two preliminary issues and requested that they be addressed in advance of the hearing on the substantive complaints.

CA-00057360-001 Complaint under section 77 of the Employment Equality Act, 1998

Preliminary issue 1.

 This complaint is not one of discrimination but merely the expiration of a fixed term contract. The complainant has failed to raise a prima facie case of discrimination.

The complainant has failed to produce a comparator.

CA-00057360-003 Complaint under section 77 of the Employment Equality Act, 1998

Preliminary issue 2.

Statutory Time limits.

The alleged act of discrimination found in this complaint occurred on 16th May 2022, when the respondent offered the complainant a one year fixed term contract, effective 28th May 2022 until 22nd May 2023 without providing objective justification.

The complainant submitted his complaint to the WRC on 26 June 2023.

The complainant has failed to meet the statutory obligations set out in Section 77 (5) (a) and (b) of the Employment Equality Acts and the WRC does not have jurisdiction to hear this element of his complaint.

Preliminary issue 1.

CA-00057360-001. Complaint under section 77 of the Employment Equality Act, 1998

The complainant points to the definition of discrimination contained in section 6(1) of the Acts.

The complainant maintains that the termination of his employment on the 22 May 2023 at age 66, contrary to his request to continue on for a further year, constitutes prima facie evidence of discrimination on age grounds. The comparator is the younger employee who replaced him.

 CA-00057360-00. Complaint under section 77 of the Employment Equality Act, 1998

Preliminary issue 2.

Time Limits.

Concerning the respondent’s contention that the complaint is out of time, the discriminatory dismissal occurred on 22 May 2023 which is a complaint within time. The act of discrimination caused by the issuing of the first fixed term contract on 16/5/2022,  a contract devoid of objective justification, was sustained up until the 22/5/23, the date of his dismissal on grounds of age.

The incidents of 16/5/2022 and 26/6/2023 stretch into a continuum.

Then WRC, does, therefore, have jurisdiction to hear the complaint.

CA-00057360-001. Complaint under section 77 of the Employment Equality Act, 1998

The last act of discrimination occurred on 22nd May 2023 when the one-year fixed term contract expired.

The respondent asks me to accept that the complainant has failed to raise a prima facie case of discrimination.

The complainant has failed to produce a comparator

As this point was raised in advance of the complainant’s evidence being heard, I will proceed to consider the complainant’s evidence under the heading of the Substantive Complaint and issue my findings accordingly.

CA-00057360-003. Complaint under section 77 of the Employment Equality Act, 1998

This alleged act of discrimination occurred on 16th May 2022 when the respondent offered the complainant a one-year fixed term contract, effective until 22nd May 2023 and allegedly failed to provide objective justification. The complainant submitted his complaint to the WRC on 26 June 2023.

 Statutory Time Limits.

Relevant Law.

Section 77( 5) (a)  provides that

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

The Act stipulates, therefore, that the cognisable period is the period 23/12/2022 – 22/5/2023.

The complainant made no case for an extension of time but did advance the view that the incidents which fell within the statutory limit and those that fell outside of it were connected and were part of a continuum.

Section 77(6)(A )states

For the purposes of this section—

 discrimination or victimisation occurs—

(i)                  if the act constituting it extends over a period, at the end of the period,”

In Hurley v County Cork VEC (EDA 1124), the Labour Court noted that Subsection (5) and subsection (6A) of s.77 of the Act deal with different forms of continuing discrimination or victimisation and held that

 “Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum.”

But while the complainant maintains that the respondent’s policy on retirement  as manifested in his involuntary retirement at age  66 and their issuing of a fixed term contract on 16/5/2022,devoid of any objective justification, are connected and serve to constitute a continuum, the complainant must, in addition,  satisfy a further requirement  set out in Cork County VEC v. Hurley EDA 24/2011 and  in County Dublin VEC v. Dodo EDA1327/2013, where the Court held that in order to consider those acts occurring outside of the statutory period, a discriminatory act must have occurred within the limitation period . As the issuing of a one-year fixed term contract on date is not in compliance with statutory limits. I must address the complaint which falls within the statutory time limits so as to render the first complaint admissible/ inadmissible.

Therefore, I must decide if the acts of alleged discrimination occurring between 23/12/2023 and 22/6/2023 constitute discrimination on the grounds of age and enable the issuing of a one-year fixed term contract on 16/5/2022 to be considered as part of a continuum of discrimination.

 I must decide if the alleged act of discrimination which occurred when the complainant’s employment was terminated on the 22/5/23 raises a prima facie case of discrimination.

I will proceed to investigate this substantive complaint of discrimination which occurred on 22/5/23.

CA-00057360-001. Complaint under section 77 of the Employment Equality Act, 1998

The complainant contends that he was discriminated against on the grounds of his age in relation to the termination of his employment on 22nd May 2023.

 The complainant is seeking compensation under the Employment Equality Act, 1998 for the discrimination he has experienced and for his dismissal by the respondent. He has experienced financial hardship, stress and upset as a result of his treatment by the respondent.

The complainant had an exemplary record with the respondent.

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where

“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)”.

The complainant was due to turn 65 on 22nd May 2022 and would have had to retire at that time due to the respondent’s mandatory retirement age of 65.

The complainant wrote to the respondent on 12th November 2021 seeking a two-year extension to his employment from his retirement date.

On 16th May 2022 the respondent offered him a one-year fixed term contract from 28th May 2022 until 22nd May 2023

On 6th February 2023 the complainant wrote to the Respondent seeking a further one-year extension to bring him up to his 67th Birthday on 22nd May 2024.

Scheduled meetings between the complainant, SIPTU shop Steward and Company Director on a number of dates in early March 2023 were cancelled at short notice by the respondent who advised they needed further advice from IBEC. The meeting took place on 20th March with the respondent People Lead, to discuss the matter. A second meeting took place on 10th April 2023 with the respondent. The respondent only advised him by letter dated 24 April 2023, received on 1st May 2023, that he would not be granted a second contract extension.

No detailed reasons were provided to the complainant either verbally or in writing as to why he would not be given a second contract extension. The only reason being put forward by the respondent was that retirement at 65 was a contractual term.

The complainant’s employment was terminated on 22nd May 2023.

 The respondent did not provide objective justification as to why the complainant could not be kept on in employment for a second post retirement fixed term contract (until he reached his 67th birthday). The first the complainant heard about the aims underpinning the respondent’s retirement policy emerged, today, at the adjudication hearing.

His employment was terminated for discriminatory reasons. There were no medical or health & safety reasons put forward by the Respondent as to why the complainant was not fit/able to continue in employment until his preferred retirement age of 67. The respondent carried out no health assessment or health and safety check. In fact, there were numerous vacancies at the time his employment ceased. He was denied the option of challenging his dismissal.

The complainant is using his replacement, a younger worker, as the comparator.

The complainant has set out a prima facie case of discrimination on age grounds.

Evidence of complainant given under affirmation.

The complainant confirmed that he was employed as part of a six-person team of production operatives from 2001, packing chocolate bars until his dismissal on 22 /5/23.

He had a good record, and he liked his job.

In advance of his 65th birthday, his partner died, and he decided he would like to remain in employment. He applied for a further extension of one year on 3 February 2023. He was doing the same job which he had always done, and he was performing well.

It took the respondent six weeks to get back to him to refuse his request for a further, second fixed term contract of a year. The respondent apologised for the delay. He advised the respondent that he was fit to continue working.

On 1 May 2023, the respondent rejected his application by letter. At the same time the respondent was advertising jobs for weekends and nights, all shifts which he had undertaken during his employment.

Cross examination of complainant

The complainant accepted that he had retired on 27/5/22 and that he accepted the terms of a one-year fixed term contract on 28/5/22.

He confirmed that he had an opportunity to seek advice at that time.

Evidence of the shop steward given under affirmation.

 The witness stated that when the complainant attended a meeting on 20/3/23 for purposes of seeking an extension of his employment for a further year, the respondent never mentioned the need for a balanced or diverse workforce.

Legal arguments.

The complainant refers to Industrial Relations Act, 1990 (Code of Practice on Longer Working) (DECLARATION) ORDER 2017, S.I. No. 600 of 2017 which provides for working beyond the contracted retirement age. It recommends that objective justification must be present to refuse an employee an opportunity to work beyond the contacted retirement age. No objective justification was given to the complainant either verbally or in writing. Age was the only reason. The respondent did not engage with the complainant as recommended in the Code to look at other options.

The complainant refers to the amendments to the 1998 Act which at section 34 (4) now state as follows:

“(4) Without prejudice to subsection (3) it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntary or compulsorily) of employees or any class or description of employees if—

(i)                  it is objectively and reasonably justified by a legitimate aim, and

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

The complainant submitted, inter alia, that the respondent failed to “objectively justify” his retirement at age 66, contrary to Section 34 (4) of the Act.

The respondent must be able to point to the reason behind the setting of the mandatory retirement age and show that their aim could not have been met by lesser means.  No reason other than age was provided to the complainant.

The complainant submitted that the respondent failed to carry out a “proper audit” to show a legitimate aim. He was fit and able to remain until 67. The complainant was not given the right to challenge the dismissal.

The complainant points to BrendanBeirne v Rosderra Irish Meats Group, ADJ00027036 where the defence of a collective agreement to escape the finding of discrimination in an enforced retirement at age 65 was not accepted. No objective grounds were offered to Mr. Beirne. His complaint of discrimination was upheld.

The complainant relies on Kenny v Bord na Mona, ADJ -00037279, on P Cassidy v Portfolio Concentrate Solutions, ADJ-00027954, and on A senior Staff Nurse v A nursing Home, ADJ-00027325.  All of these decisions resulted in a finding in favour of the complainants who were compulsorily retired at age 65.

Conclusion

SIPTU stated that the respondent’s treatment of the complainant amounted to a breach of 6.2 of the Acts.

CA-00057360-001. Complaint under section 77 of the Employment Equality Act, 1998

The respondent denies that they discriminated against the complainant on any of the grounds set out in the Act.

The complainant is mistaken. His employment came to an end for no other reason than his fixed term contract had expired. He knew the terms of his final contract dated 20/5/2022.No objective justification is required in these circumstances.

The respondent submits that a SIPTU -Respondent collective agreement, in force since 2007, stipulates that the retirement age for production employees and all other factory employees is 65. The complainant is a member of SIPTU. The respondent has a normal retirement age appropriate and necessary to achieve their aims. The respondent stated that their aim was to achieve a diverse and age balanced workforce.

The respondent submits that they engaged with the complainant in accordance with S.I. No. 600 of 2017 which enables an employee to remain in employment until they reach eligibility for the state pension, which is 66, the same age as the complainant. It was agreed that they would issue him with a one-year fixed term contract to take him up to this 66th birthday and to attain eligibility for the State Pension. This does not amount to discrimination. This is what was offered to the complainant.

Evidence of respondent People Lead.

The witness confirmed that the aim underpinning the decision not to extend the complainant’s employment at the expiration of the fixed term contract on 22/5/23 was designed to achieve a diverse and balanced workforce.

She confirmed that 375 employees were engaged in the production in the Coolock plant.

Twenty people were recruited during Covid March 2020-22. A range of ages were recruited but the majority were under 40 years of age.

Upon questioning she disclosed that

13% of their workforce are under 40 years of age,

23% fall into the 40–49-year age range,

45% are within 50-59 years of age and

15% are over 60 years of age.

Legal submissions

The complainant has failed to raise a prima facie case of discrimination as the complainant has failed to show less favourable treatment. The complainant has failed to put forward a comparator. The correct comparator is an employee over the retirement age, older than the complainant, yet employed on a fixed term contract.

In response to the allegation that Mr. Farrell was discriminatorily dismissed on the grounds of his age, the Respondent refutes this allegation and refers to the case of Peter O ‘Loughlin v The HSE, ADJ 000-26333, concerning a refusal to offer a further postretirement fixed term contract. The AO found that the complainant failed to establish a prima facie case of discrimination or that he had been discriminated against on the grounds of age.

“the evidence adduced clearly shows that the Complainant’s Fixed Term Contract

came to an end on 1 December 2019 for no reason other than the expiry of the term as

set out in the contract.

Consequently, based on the above findings, I am satisfied that the termination of the

Complainant’s Fixed Term Contract had nothing to do with his retirement, which, as

is clearly set out above, took place one year earlier in December 2018. Therefore, the

Complainant’s claim that he was forced into retirement in December 2019 is without

foundation.”

The respondent referred to the Supreme Court’s findings in Seamus Mallon v. The Minister for Justice, Ireland, and the Attorney General, [2024] IESC 20 (15 May 2024) (the “Mallon Case”), which dealt with the standardisation of retirement ages in the public service. The respondent relied on the Court’s findings that the “consistent and systematic” application of retirement rules ( as happened in the instant case) is an important element of the proportionality analysis; that an employer is not required to objectively justify the application of a retirement age to an individual employee; and that individual assessment is not warranted.

The complainant points to the lack of detail, but as per Mallon, this isnot supportive of a complaint of discrimination.

In relation to the complainant’s reliance on of Kenny V Bord na Mona PLC, the Labour Court decision EDA2232 set aside the decision of the Adjudication Officer.

P Cassidy v Portfolio Concentrate Solutions, ADJ-00027954, cited by the complainant, is distinguishable from the instant case as the respondent in that case failed to offer a fixed term contract after that complainant had reached the age of 65 and had failed to engage with the recommendations set out in S1 600/2017.

The respondent requests that the complaint be deemed to be unfounded.

CA-00057360-001 Complaint under section 77 of the Employment Equality Act.

I must decide if the complainant was discriminatorily dismissed on grounds of age contrary to Section 8(6) and in terms of section 6(1) of the Acts on 22/5/2023.

If I so find, I will then proceed to decide on whether the respondent discriminated against him on 16 May 2022 when the respondent issued him with a fixed term contract but failed to offer objective justification.

 Was the complainant discriminatorily dismissed on grounds of age?

The relevant law governing this complaint

Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (the “Directive”) is transposed into Irish law by the Employment Equality Acts 1998 – 2015 (the “Acts”).

Discrimination is set out in Section 6(1) of the of the Act to mean:

“(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring 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 grounds specified in subsection (2) in this Act referred to as the ’discriminatory ground’”

The aforesaid provisions provide the protection which can be invoked by the complainant. But his first obligation is to establish a prima facie case.

Section 85 A (1) of the Act provides as follows:

“Where in any proceeding’s 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 “.

I need to address the question of whether it’s a stateable case of discrimination.

The respondent has asked me to accept that it was the mere expiration of a fixed term contract which led to his dismissal on the May 2023 and that, therefore, this dismissal does not come within the radar of the Act.  The complainant, they assert, is not entitled to rely on section 8 of the Act.

Is the Employment Equality Act in the frame?

While this is not, strictly speaking, a question of mandatory retirement ages, it is difficult to escape the conclusion that it was age which determined the end of his employment with the respondent. The fixed term contract was a mechanism to postpone mandatory retirement. It was merely the mandatory retirement age resuscitated by the expiration of a fixed term contract. Employees below 65 years of age are not issued with fixed term contacts to tide them over for a year, nor retired at the end of a one-year fixed term contract having been employed on a permanent contract for many years. The one-year fixed term contract which expired on 22/5/23 is a function of the employer’s retirement policy on age which requires employees to retire at age 65.

Given that fact, I find that the complainant’s age was material to the decision to terminate his employment. I do find that the Act is in the frame.

The complainant has raised the fact of his cessation of employment being directly attributed to his age. He has raised facts from which I can infer that discrimination may have taken place. He has satisfied the burden of proof required by Section 85 A of the Act. The burden of proof now passes to the respondent to outline whether they can safely rely on the provisions of Section 34(4) of the Act and rebut the inference of discrimination.

The Acts transposed the Employment Equality Directive or Directive 2000/78/EC into Irish law and prohibit discrimination on nine grounds, including age. Therefore, the termination of employment because of age can be considered to be a discriminatory act unless it can be saved by Section 34(4) of the Acts (or Article 6 of the Directive). Article 6(1) of the Framework Directive is as follows: ‘

1.            “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”

The Framework Directive’s derogation to the general prohibition on less equal treatment contained in Article 2(2) contains two distinct criteria which are set out at Section 34(4) of the Act of 2015, and which provides for certain savings and exceptions to section 6 of the Act relating to the family, age and disability grounds. It provides that it is permissible to fix a retirement age if: -

“I) it is objectively and reasonably justified by a legitimate aim; and

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

The Supreme Court addressed the matter of age retirements in the decision of Seamus Mallon v The Minister for Justice, Ireland, The Attorney General [2024] IESC 20. It concerned an appeal of a High Court Judgement (2022] IEHC 546, which upheld a mandatory retirement age of 70 for Sheriffs. The appeal conducted by the Supreme Court examined the subject of the retirement of Sheriffs based on age in the context of a statutory provision (section 12(6)(b) of the Court Officers Act 1945.) They had to consider if this statutory provision was incompatible with Council Directive 2000/78/EC and the Acts or if it could be brought within Article 6 of the Employment Equality Directive (as transposed by section 34(4) of the 1998 Act). 

The case advanced by Mr Mallon was that a mandatory retirement age infringed his right to equal treatment The Supreme Court upheld the High Court judgement and Phelan’s J’s finding in the High Court that the

“core question” was whether it had been demonstrated that section 12(6)(b) ( the relevant retirement provisions for sheriffs) was

“Objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and whether the means of achieving that aim are appropriate and necessary” (para 19) .

The Supreme Court identified the latter hypothesis as its task.

At paragraph 62(5), the Supreme Court in Mallon identified possible legitimate aims as follows:

·          “   Promoting the employment of younger people and facilitating their entry to the labour market;

·             Promoting the access of young people to the professions.

·             Establishing an age structure that balances younger and older workers.

·             Sharing employment between the generations.

·             Improving personnel management by enabling efficient planning for departure and recruitment of staff.

·             Preventing possible disputes concerning employees’ fitness to work beyond a certain age.

·             Avoiding employers having to dismiss employees on the ground that they are no longer capable of working which may be humiliating for the employee; and

·             Standardising retirement ages for professionals in the public service.”

 The Supreme Court dismissed Mr Mallon’s appeal, finding that the mandatory age retirement provisions for sheriffs found in Section 12(6)(b) of the Court Officers Act 1945 was justified under Article 6(1) of the Directive.

Application of the Law to the circumstances of the instant complaint.

Like in Mallon, the complainant in the instant case argued that the absence of detailed reasoning as to why his employment should end in May 2023 flouts Section 34(4) of the Acts, in addition to his right to equal treatment. On this point, Mr Justice Collins, in developing the Supreme Court’s reasoning, summarised CJEU case law. The Court noted the CJEU jurisprudence, which held that  

“It is not the case that the Directive presumptively requires case by case or role by role assessment or that such individual assessment must be shown to be impractical if a generally applicable retirement age is to be justified. Provided that the aim sought is legitimate and the means of achieving that aim are “appropriate and necessary” (proportionate), a mandatory retirement rule does not offend the prohibition on age discrimination in the Directive, notwithstanding that it does not entail an individual assessment of those subject to that rule.”

Was the respondent’s mandatory retirement at age 66 justified by a legitimate aim.?

In the instant case, the respondent stated that their aim was to achieve a diverse and age balanced workforce. The uncontested evidence was that 64% of the work force was in the 49-65 age bracket and that 13% of the workforce were under 40 years of age -a lopsided demographic.

Mr Justice Collins, in developing the Supreme Court’s reasoning, summarised CJEU case law. The Court noted the CJEU jurisprudence, which held that

“a measure providing for mandatory retirement (whether a legislative measure or a provision of a collective agreement) may be justified even where it does not identify the aim being pursued: the ‘general context of the measure concerned’ may be relied on to identify the underlying aim of the measure for the purpose of judicial review of its legitimacy and whether the means put in place to achieve that aim were appropriate and necessary” (paragraph 62(3). 

Mallon also held that the relevant employer was better placed to assess what is necessary and appropriate for the effective operation of the business.

The respondent also acted in accordance with the collective agreement in place in the workplace.

Appropriate and necessary means.

The complainant accepted that he was aware that a collective agreement and the employee handbook underpinned this collectively agreed retirement age.

Under cross-examination, the complainant confirmed that he had agreed to the terms of the one-year fixed term contract and its expiry date and that he had professional advice to hand to consult on its terms.

No evidence was submitted to demonstrate that the collective union management agreement on age retirements at 65 had not been systematically applied or that other employees had been retained after the age of 65 or after the expiration of a one-year post retirement fixed term contract.

The complainant was enabled to continue working until eligibility for the State pension arose.

Mallon held that the avoidance of an individual assessment as to capacity to continue working after a retirement age in order to achieve a legitimate aim was appropriate and necessary.

 Proportionality.

Collins J held that the “consistent and systematic” and “coherent” application of mandatory retirement rules is not only permissible but is an important element of the proportionality analysis under the Directive (paragraph 76).

The Supreme Court held that once the aims sought are legitimate and the measure is proportionate, a mandatory retirement age rule will not contravene the prohibition on age discrimination.

I find that the respondent’s failure to provide a second fixed term contract to the complainant enabling him to continue working until age 67 was objectively and reasonable justified by the legitimate aim of an age - balanced workforce.

Based on the evidence and the law, I find that the respondent’s decision to terminate the complainant’s employment at the age of 66 years had been justified within the meaning of section 34(4) of the Acts and Article 6 of the Directive 2000/78/EC and that the means chosen by the respondent are both appropriate and necessary for achieving that aim.

I find that the complainant was not discriminated against, and that this element of his complaint is not well founded.

CA-00057360-003.Complaint under section 77 of the Employment Equality Act.

The issuing of a one-year fixed term contract to the complainant on 16/5/2022 which was not objectively justified in contravention of Section 6 (3) (c) of the Act.

As I have found that the termination of the complainant’s employment occurring within the statutory time limits on 22/5/23 did not amount to an act of discrimination contrary to the age provisions of the Act, I am unable to confer jurisdiction on this complaint which was lodged thirteen months after the alleged act of discrimination and outside of the statutory limits.

I find that I do not have jurisdiction to hear this complaint.

CA-00057360-003.Complaint under section 77 of the Employment Equality Act, 1998.

I find that the complainant was not discriminated contrary to the age provisions of the Act of 1998.

CA-00057360-001 Complaint under section 77 of the Employment Equality Act,1998.

I find that I do not have jurisdiction to hear this complaint.

Age retirement; Mallon judgement.