ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00035673

Parties:

	Complainant	Respondent
Parties	Deborah Toland	Lifford Credit Union Ltd

	Complainant	Respondent
Anonymised Parties

Representatives

Fiona Kelly FIONA KELLY SOLICITORS

Sarah Conroy Beale & Company

Complaint(s):

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-00046787-001	21/10/2021

Date of Adjudication Hearing: 26/09/2023

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

The parties were invited to make submissions on the matter of anonymisation/publication of the decision. While both the claimant’s representative and the respondent’s representative sought anonymisation of the parties , neither party set out any special circumstance - as set out in Section 41 as amended- to warrant anonymisation of the decision.

Background:

The claimant was employed as a teller with the respondent from the 1st.Jan.2000 to the 29th.April 2021.The claimant asserts that she was forced to retire on reaching the age of 65 and that she was discriminated against on age grounds through compulsory retirement on age grounds. The respondent denied that there was any discrimination on age grounds and argued that the retirement of the complainant arose pursuant to a condition of her employment with the respondent and that the contractual arrangement between the parties provided that the employment relationship would end by reason of retirement upon the complainant reaching the age of 65.

Summary of Complainant’s Case:

The claimant’s representative submitted as follows

SUBMISSION ON BEHALF OF THE COMPLAINANT

1. This is a complaint of discrimination and/or discriminatory dismissal on the ground of age contrary to Section 6 of the Employment Equality Acts. The Complainant commenced employment with the Respondent on the 1st of January 2000, as a General Office Clerk. The Complainant was dismissed on reaching the age of 65 years despite her request to continue working. The Complainant intends to rely on Contract of Employment which is appended hereto at Appendix 1.

2. The Retirement Clause as set out at number 14 in her contract of Employment is as follows:-

“You shall retire on reaching 65 years of age. However, your employment may be extended past 65 years by the mutual agreement of both parties”

In November 2020 the Complainant spoke with Mr.X her Manager at her appraisal with regards an extension to her contract of employment after she reached 65 years of age. The Complainant asked him did she have to put her request to extend her contract of employment post retirement age in writing and he told her he would take care of it and he would find out information from the Board for her.

On the 1st of February 2021 the Complainant received a letter from the respondent in relation to annual leave. The Complainant intends to rely on the e-mail of the 1st of February 2021 which is appended hereto at Appendix 2.

The Complainant did not receive a response from Mr.X to her request to extend her contract of employment in November so she sent an e-mail on the 22nd of February 2021 to Mr.X together with a letter to the Board of Directors, referring to her conversation in November 2021 regarding her retirement and her request to remain in employment. The Complainant intends to rely on the e-mail and the letter of the 22nd of February 2021 which is appended hereto at Appendix 3.

On the 23rd of February 2021, the Complainant received a letter from her Manager for on behalf of the Board of Directors whereby her request to extend her contract of employment with the respondent beyond the scheduled retirement dated the 29th of April 2021 was discussed, it was agreed not to extend the contract and the basis of having “a staff structure and succession plan in place and are satisfied that the staffing arrangements are adequate”. The Complainant intends to rely on the e-mail and the letter of the 23rd of February 2021 which is appended hereto at Appendix 4.

On the 2nd of March 2021, the Complainant e-mailed Mr.Y Chairman of the Board asking for the reason why she was not allowed to stay on and work after her 65th birthday. The Complainant intends to rely on the e-mails dated the 2nd of March 2021 which is appended hereto at Appendix 5.

On the 16th of March 2021 the Complainant received a letter from the Chairman of the Board “confirming that following a meeting of the Board of Directors of Lifford Credit Union on the 22nd of February 2021 where your request to extend your employment contract with the respondent company beyond the scheduled retirement date of 29th April 2021 was discussed . It was agreed unanimously by the Board of Directors not to extend your contract”. The Complainant intends to rely on the said letter which is appended hereto at Appendix 6.

On the 31st of March 2021 the Complainant submitted a letter to the Board of Directors with regards a grievance she had with her manager Mr.X in relation to him saying that he asked the Complainant to put her request to extend her contract of employment after he reaching the age of 65 when he did not, removing her name from the mailing list. The Complainant felt very humiliated, embarrassed and singled out. The Complainant was excluded in other ways including telephone calls and on occasions he did not speak to the Complainant and she felt isolated. The Complainant intends to rely on the e-mail of the 31st of March 2021 which is appended hereto at Appendix 7.

The Complainant appealed the Board of Directors decision not to extend her contract of employment. On the 31st of March 2021 the Complainant e-mailed Mr.Y requesting a meeting to obtain answers for the refusal not to extend her contract of employment, as the Complainant felt that a Succession plan was not a reasonable ground for the refusal nor did it objectively justify the Board’s decision not to extend her contract. The Complainant intends to rely on the said letter which is appended hereto at Appendix 8.

On the 7th of April 2021 the Complainant received a letter from the Chairman – Mr.Y -of the Board to attend a meeting on the 19th of April 2021. The Complainant intends to rely on the said letter which is appended hereto at Appendix 9.

Following the meeting on the 19th of April 2021 the Complainant received a further letter dated the 26th of April 2021 requesting her to attend a further meeting on the 28th of April 2021. On the 28th of April 2021 the Complainant received a letter from the respondent listing their reasons for their refusal to extend her contract of employment.

The Complainant disagreed with the reasons outlined as the respondent had taken on four new staff members between late 2019 and 2020 as they were short staff and the Complainant was the only person reaching retirement age, throughout her employment she completed courses during her employment and prior to her employment she completed a ECDL course and completed exams every year. The Complainant completed a loans officer course in 2018, which consisted of law and loans. The Complainant throughout her employment actively took part in training courses to update her skills.

On the 25th of May 2021 the Complainant’s solicitor wrote to the respondent to request them to objectively justify the reason for the Complainant’s contract of employment not being extended. The Complainant intends to rely on the said letter which is appended hereto at Appendix 10.

On the 28th of September 2021 the Complainant’s solicitor received a letter from the employer dated the 22nd of September 2021. The Complainant intends to rely on the said letter which is appended hereto at Appendix 11.

The Complainant sent Form ES.1 to the respondent .The Complainant intends to rely on the said letter which is appended hereto at Appendix 12.

3. The complainant did not wish to retire from her employment and the Respondent is in breach of SI No. 600/2017 Code of Practice, which requires an employer to notify an employee of the intention to her on the contractual retirement date within 6-12 months of that date, to allow for reasonable planning. No supports were provided to the Complainant for example suitable pre-retirement courses, flexible or part-time working arrangements.

The complainant had an unblemished record throughout her 22 years’ service with the Respondent and there had been no complaints regarding her ability to carry out her duties.

Irish Legislation, as well as European case law and subsequent rulings by the Works Relations Commission confirm that it is discriminatory to compel and employee to retire at a certain age unless there in “objective justification” for requiring them to do so. In order for a particular retirement age to be objectively justifiable it must:

i) correspond to a legitimate aim of the employer, and

ii) be appropriate and necessary

The claimant’s representative invoked the provisions of Anne Roper v RTE [2019] (ADJ -00019084), Kathleen Dempsey v the West of Ireland Alzheimer Foundation [2019] A Senior Staff Nurse v A Nursing House (ln Liquidation) ADJ-00027325 in support of their contention that the termination of the claimant’s employment constituted discriminatory treatment on age grounds and that same had not been objectively justified by a legitimate aim.

The Complainant intends to rely on the case law appended hereto at Appendix 13.

4. The complaint is seeking an award of compensation in respect of the discrimination suffered and consequent loss of work.

A supplementary submission was received from the claimant’s representative on the 19th.Dec. 2022- in the submission the claimant’s representative took issue with the respondent’s original submission and introduced the following additional arguments

Board Minutes dated the 28th of October 2020 indicate no retirement policy was in place when the Complainant’s request first came through. In Board Minutes dated the 21st of December 2021 it is discussed that a retirement policy of 65 is being drafted and that objective justifications were being created for this purpose which is after the request but before it was communicated. In Board Minutes dated the 22nd of February 2021 it was indicated by the Manager that the objective justifications were in place to reject the request for an extension of contract. In a meeting the Complainant had with the Board on the 19th of April 2021 it was indicated by her that there was no communication for approximately 4 months on her request, that she had not received a retirement policy, and complained of having no preparation for retirement. The succession planning in the strategic plan was raised to the Complainant.

1. The Respondent has cited the employment law cases of Donnellan v. Minister for Justice, Equality and Law Reform & Ors. [2008] IEHC 467; Case C-268/06 Impact v. Minister for Agriculture and Food; McCarthy v. HSE [2010] 21 E.L.R. 165; Earagail Eisc Teoranta v. Richard Lett – Labour Court EDA 1513; Palacios de la Villa v. Cortefiel Services SA Case C-411/05 [2007] E.C.R. 1-8531; Case C-45/09 Rosenbladt; Cases C 159/10 and C 160/10 Fuchs and Kohler v. Land Hessen; and Baranya v. Rosderra Irish Meats Limited [2021] IESC 77.

2. The applicable legislation is primarily section 34(4) of the Employment Equality Act, 1998 (‘the 1998 Act’) which states the law as follows:

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

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

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

3. The applicable EU law is derived from Article 6, Justification of differences of treatment on grounds of age, of Council Directive 2000/78/EC of 27 November 2000 and which states 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.

Such differences of treatment may include, among others:

(a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;

(b) the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment;

(c) the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.”

4. In Cox, Corbett and Connaughton, Employment Law in Ireland (2nd ed., Clarus Press, 2022) at page 512 when discussing retirement within the ‘age ground’ the authors cite recent studies which “indicate that in fact mandatory retirement does not help create jobs for younger workers and reducing employment for older workers does not necessarily provide more job opportunities for younger workers”. These studies would run contrary to the Respondents claims of inter-generational fairness. The Respondents are also aware that the Claimant will likely need to apply for social welfare for a year until she qualifies for the state pension.

5. Case C-411/05 Palacios de la Villa v. Cortefiel Servicios SA [2007] ECR I-8531 was decided on the grounds that the Spanish government had a national law in place to increase employment among younger people that an employee could be retired if they were entitled to pension payments as part of a collective agreement. This was a legitimate public policy interest aim, implemented through a contract, and an objective of the Directive. Mr. de la Villa was entitled to a pension. Ms. Toland states that more staff were taken on after she left employment having been previously told that they had a succession plan in place that meant her continued employment would lead the Respondent to being overstaffed.

6. Objective justification of mandatory retirement age was highlighted in McCarthy v. Calor Teoranta [2008] E.L.R. 42 which was confirmed on appeal by Mr. Justice Clarke, as he was then, in the High Court with a citation of Calor Teoranta v. McCarthy [2009] IEHC 139. The facts are similar to that of the Complainants. Mr. McCarthy was required to retire at 60 but there was a dispute as to whether 60 was his retirement age or 65. He original retirement age was 65 when he first joined but when reduced to 60 and then returned to 65 after various agreements were signed. The Labour Court took the view that he had not been forced to retire at his contracted age. Clarke J writes that if Mr. McCarthy’s retirement age was 60 then Calor Teoranta would have an argument under section 34(4) of the 1998 Act and the applicable Directive discussed in Palacios but if 65 then a retirement at 60 would be discriminatory. Ms. Toland states that she never signed a contract and when offered a contract did not sign it due to disagreements. The question then is did Ms. Toland always consider her retirement, when she first started, to be 65?

7. McKechnie J in Donnellan v. Minister for Justice, Equality and Law Reform & Ors. [2008] IEHC 467 at paragraph 70 states that compulsory retirement at age 60 from An Garda Síochána constitutes direct discrimination but same can be "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". McKechnie J outlines the legitimate aims at paragraph 94 which are only relevant to this force and at paragraph 98 that they must “be appropriate and necessary. This is the test of proportionality; the measure must go no further than is required to reach the legitimate aim and must do so in the least restrictive way” and at paragraph 122 “considering whether a measure will be proportionate is whether individual assessment would be possible in a given case” which is possible for Ms. Toland’s claim. The case should be further distinguished in that Mr. Donnellan would have a state pension ready, which McKechnie J highlights at paragraph 123, and is a public servant. However, McKechnie J further writes that a request for an extension of employment, judged on individual and specific merits, creates a procedure tempering the severity of the absolute retirement age rendering it proportionate. He finishes by stating that each case should be fact dependent. In Gordon v. Garda Commissioner DEC-E2020-004, the proportionality test was applied and found to be passed as there was a power to extend the age of retirement and the Applicant had a full pension.

8. In O’Neill v. Fairview Motors Ltd DEC E2012-093, the Workplace Relations Commission found at paragraph 5.5 that section 34(4) of the 1998 Act did not provide an absolute defence for imposing a mandatory retirement age and that this legislation had to be viewed in light of the Donnellan decision cited above and Article 6 of the Directive. As detailed at paragraph 5.6, no written contract existed, and it was not accepted that Mr. O’Neill knew of the compulsory retirement age as he was the first employee to retire. Furthermore, there was no retirement policy in place which also applied to Ms. Toland. The objective justifications were rejected.

9. In reference to the case of Earagail Eisc Teoranta v. Richard Lett – Labour Court EDA 1513 amongst others, Cox, Corbett and Connaughton write at page 517 that the termination of employment solely due to reaching a certain age would be an unlawful discriminatory dismissal unless the retirement age had been incorporated into the contract and if it had, then “so long as the employer could objectively justify the compulsory retirement age, the termination of the employee’s employment amounted to retirement rather than dismissal and was not discriminatory.”

10. In Doyle v. ESB International Limited DEC-E2012-086, the justification for a compulsory retirement age was accepted as necessary at paragraph 4.14 that the employer “spends extensive resources and time in training its new employees … to achieve this aim the respondent must ensure that it can offer career pathways to such employees and ensure vacancies for upward post become available. This is a necessity to ensure retention, motivation and dynamism among the respondent staff”. This justification would apply for a succession plan for younger staff already in employment rather than for hiring new staff. Furthermore, Ms. Toland was not in a management position or in a role of technical expertise blocking younger staff from development.

11. In Louth County Council v. Mary Clarke EDA1916 the Labour Court heard a case on similar facts to Ms. Toland’s. Ms. Clarke sought well in advance of her retirement date to have her contract extended by 12 months and only received confirmation that it would not be extended two days before she was retired. Louth County Council argued that an extension would “negatively impact on the Respondent’s Workforce Planning and Financial Management. However, they were not in a position to explain how that negative impact on the Workforce Planning would manifest itself”. Cox, Corbett and Connaughton cite the case of O’Mahony v. South West Doctors on Call Ltd DEC-E2014-031 at page 520 wherein the respondent’s objective justification of ‘intergenerational fairness’ was rejected as “the respondent was not trying to retain younger people or plan for succession.”

12. In Valerie Cox v. RTÉ ADJ-00006972 the objective justifications of intergenerational fairness were rejected with it noted that the “evidence was … that there were in fact two people over the age of 65 years working on the same roster that the Complainant’s Casual/Irregular Contract covered. The difference was the Complainant was an Employee on a Contract of Services whereas the other two people were “Independent Contractors” i.e. on Contracts for Services. Thus I find that it was the status of the Complainant’s Contract of Employment which was the determining factor in her retirement at age 65 years.” It could be argued that the older worker in Ms. Toland’s claim would be applicable here, and the fact that she was later let go, but the Respondent will likely argue that they were very different roles. Clinical Psychologist v. Social Services ADJ-00004227 should be distinguished wherein the retirement age was objectively justified to “to provide conditions and supports to staff that result in a high retention rate, increased motivation and the opportunity for promotion – to create a balanced workforce which also ensures the organisation can effectively manage the departure and recruitment of staff – to ensure cohesion amongst all staff and create opportunities for intergenerational fairness and appropriate renewal of the various teams across the organisation”. The argument here seems to be intergenerational fairness within the organisation as opposed to opportunities for recruitment. This argument seems to succeed but should be distinguished.

Summary of Pertinent Evidence of the claimant :

The claimant stated that when she was presented with her contract in 2014 , she did not sign it. She had concerns regarding the retirement age and brought it up on a number of occasions with management .She said it was put on the long finger .She did not challenge it. She did not sign it. She was aware of the 65 year retirement age but did not think the reference to mutual agreement would be a problem.

The claimant said she did not believe she was ready for retirement – when it was raised at the appraisal meeting with her manager , he said he could not wait to retire. When she asked him what she should do , he replied I will look after it. The Finance Officer had informally referenced her birthday informally at ameeting. Everything went ok at her appraisal meeting – there were no problems identified. The claimant referred to Ms.H as being over the 65 year age limit. The claimant said she recruited Ms.H and paid her by check. The claimant referred to the references to Ms.H in the annual report and said Ms.H was a staff member. All staff members were excluded from the annual Car Draws including Ms.H who had initially applied but had to subsequently withdraw her name as she was a staff member. The claimant said when she met Mr.X at the appraisal meeting she was clear that she did not want to retire .She had a car loan of > €20,000.The witness said Mr.X said he would relay her request to the Board but he never got back to her. The claimant said she loved her job and she assumed she would continue on in employment by mutual agreement. When asked if she ever saw a succession plan, the claimant replied that she got a booklet but it did not deal with retirement. The claimant thought the decision to decline her application for an extension did not make sense and amounted to age discrimination. She was devastated when her application was rejected. The claimant said she was advised by the HR person that she was not to have any further contact with her and that she would have to go through the Chairperson. The witness set out her duties as a teller – she said she loved her job and loved helping people.She said she was heartbroken when she had to leave and it took a toll on her health. She felt she was no longer worthy and had no value . After she finished she could not get any other work. Her income was €203 per week – her pay was €500 when she was working.

The claimant said she was let go because of age discrimination.

Under cross examination the claimant confirmed that the decision on her request for an extension beyond retirement age was a matter for the Board and the first time it was presented to them in writing was on the 22nd.February.The claimant confirmed that she anticipated that the Board would agree to her request. She assumed the decision on an extension was a matter for the Board. It was put to the claimant that it was after the Board decided not to grant an extension that she lodged a grievance against Mr.X. It was put to the claimant that she was mistaken in thinking Mr.X told her he would find out and that she was mistaken in her recollection that she did not have to write to the Board. It was put to the claimant that Mr.X made it very clear that if she wanted an extension she would have to write to the board – the claimant responded – he is wrong – completely wrong. It was put to the claimant that by October 2020 she was aware as a matter of certainty that her retirement date was April 2021.The claimant responded that Ms.A had raised the matter prior to her appraisal. The respondent’s representative suggested that this was by no means the first time she was aware of her retirement age of 65.The claimant confirmed that she knew in 2014 when she did not sign her contract of the 65 year retirement age.The respondent’s representative asserted that she was crystal clear when she referred her complaint that she was placing reliance on her contract of employment with a retirement age of 65.The claimant said that all the Board had to do was keep her on another year and then she would get her pension – while she said another year she would like to stay. When asked if she would have been happy if allowed a further year , the claimant replied yes , I just wanted to stay on. It was suggested to the claimant that it was clear from her evidence that had the respondent said we will allow you to stay to 66 , that would have been satisfactory. The claimant responded – it would have been more reasonable – she was paying over €200 a week on her car loan. She wanted to pay off her loan and would have paid off a lot of it over the year.

It was put to the claimant that she did not accept that the employer can refer to succession planning and that she did not accept this was a valid reason .The claimant said this was the first she heard of a strategic plan.It was put to the claimant that she saw the succession plan – the brochure came out after a meeting in 2018/2019.The claimant was asked if it surprised her that the contracts for newly recruited employees had a retirement age of 65 – she responded that she was not surprised as it was in her 2014 contract.The age profile of staff was set out – the claimant said she was one of 4 staff members who were there a long time.The claimant was asked if she accepted that retirement age and unlawful discrimination were separate matters – the claimant said she did not agree. The claimant said she emailed her colleagues in April 2021 – she was sick , stressed and had been hospitalised – she did not want her colleagues to think that she had been sacked. It was put to the claimant that when she described Ms.H as an employee she was mistaken. The claimant replied that this was wrong and that she had recruited Ms.H. She accepted she did not see a contract – it was suggested to her that none exists.It was put to the claimant that the fact that Ms.H was paid did not mean she was an employee .The claimant said Ms.H was named as a staff member in the respondent’s brochure and financial statement.It was put to the claimant that succession planning related to day to day work operations as opposed to cleaning of offices.

In summing up , the claimant’s representative reiterated that the claimant took the case on the grounds of age – she submitted that the company had no retirement policy in place and referenced the continuation in employment of Ms.H who had continued in employment into her late 70’s.A new policy was referred to on the 23rd.May 2022 .It was submitted that the records of the Board minutes illustrate there was no policy and the employer relied on the contractual provisions – the only option open to the claimant was the job seekers route .It was submitted that the board made that decision and had since utilised every effort to retrospectively justify the decision .The employer sought to provide more justifications after the decision was made. The claimant had made every effort to contact and engage with the employer. Mr.Y had relied upon succession planning and staff structure as a defence to the complaint of discriminatory treatment. It was submitted that when Mr.Y was asked how the ending of the claimant’s contract would influence the succession plan , he had no answer.

The representative referenced the minutes of the meeting of the 21.12.20 and the communication from the manager to the claimant in which he asked how the claimant intended to take her annual leave in the context of her retirement.

It was submitted that there was no aftercare provided for the claimant.Her contract provided for an extension beyond 65 years by mutual agreement and she was relying upon this.The imposition of a mandatory retirement age must have a legitimate aim that is proportionate .It was submitted that it was clear from the evidence that relying upon succession planning was presented without anything to back it up. No reason was advanced to illustrate what impact the retirement age would have on the plan. The representative referenced Seldon and submitted that the one thing it did contain when referring to a legitimate objective was that the means to achieve it must be proportionate .It was submitted that no other means were considered in the context of the claimant’s retirement. The claimant had given evidence about her work , her skills , the impact surgery had on her health.She made it clear that she would not have taken out her car loan had she known she would have to retire at 65. It was submitted that there were other measures to meet a legitimate aim other than her loosing her job.It was submitted that the claimant was stressed and upset and could make no sense of the employer’s position. Another person was hired to do the job she was doing.

Summary of Respondent’s Case:

The following submission was made on behalf of the respondent :

Introduction

1. It is submitted that this case does not involve a dismissal on the ground of age. Rather, it involves the retirement of the Complainant which arose pursuant to a condition of her employment with Lifford Credit Union. This is a very important distinction, and it will be returned to later in these submissions.

2. There was an express contractual arrangement between the parties with regard to an established retirement date. The agreement between the parties, clearly provided for in the contract of employment, was that this employment relationship would end by reason of retirement upon the Complainant reaching the age of 65.

3. The only inference sustainably open, on the facts of this case, is that the claimant had actual knowledge of - and knew and understood- that her employment would terminate upon her reaching the age of 65.

4. The contract entered into between the parties is very significant. [There may not be much if any dispute between the parties on this point, as e.g., in the Complainant’s written submissions received on 31 May 2022 it is stated prominently that she is relying upon the contract of employment]. Page 1

5. There are a variety of assertions in the Complainant’s submissions with which the Respondent wholly joins issue and denies. Insofar as each and every such assertion is not expressly addressed in this submission, same is in no way to be taken as an acceptance of the truth or accuracy thereof.

6. It is denied that the Complainant has raised facts from which an inference of discrimination arises. Without prejudice to the foregoing, it is submitted that, on the specific facts of this case, the mandatory retirement age of 65 is objectively justified as a proportionate means of achieving a legitimate aim or aims.

Outline Factual Background

7. On 5 October 2020 a Staff Appraisal took place between the claimant and the Manager of company. Significantly, it was the claimant who raised the issue of her impending retirement at age 65. At that point, her retirement was about 6 months away.

8. The documents referred to in paragraphs 9-19 herein are to be found in Appendix 1 to this submission.

9. By letter dated 1 February 2021, Mr.X- the claimant’s manager - referred to the retirement date of 29 April 2021.

10. An email from the Complainant dated 22 February 2021 (addressed to “the Board of Directors”) attached her letter (in the form of an email) formally requesting in writing that the Board agree to extend her contract of employment.

11. The request for an extension was duly considered by the Board but the Board’s decision was not to grant an extension. Correspondence dated 23 February 2021 communicated this to the Complainant. The correspondence stated inter alia that: “The board greatly appreciate your years of service to Lifford Credit Union and your offer to stay on after reaching retirement age. However, the Board have a staff structure and succession plan in place and are satisfied that the staffing requirements are adequate.”

12. The Chairman of the Board , Mr.Y sent correspondence to the Complainant dated 16 March 2021.

13. By way of document dated 30 March 2021 addressed to the Board of Directors, the Complainant then submitted a Grievance.

14. Mr. Y responded to that by letter dated 7 April 2021, and he also sent the Complainant another letter dated 7 April 2021. Page 2

15. A meeting then took place on 19 April 2021, and this was to discuss the Board’s decision regarding the claimant’s then upcoming retirement. The claimant was in attendance alongside her chosen representative (Mr. G).

16. Correspondence from Mr. Y dated 26 April 2021 referred to a Board meeting which had taken place that day, to the fact that the Board had made a decision, and the letter invited the claimant to attend a meeting on 28 April at which the Board’s decision would be communicated to her.

17. The Board’s decision was communicated to the Complainant by letter dated 28 April 2021. The decision of the Board was not to extend the Complainant’s employment beyond her retirement date.

18. By email 29 April 2021, the Complainant emailed all staff regarding her retirement.

19. Further correspondence issued to the Complainant by letter from Mr.Y dated 13 May 2021, and subsequently by letter dated 22 June 2021. Reasons articulated by the Respondent are objectively reasonably and legitimate

20. Without prejudice to any other submission herein, it is submitted that there are objective grounds in this case justifying the application of the contractually agreed retirement age of 65.

21. The reasons for not acceding to the Complainant’s request for an extension were clearly identified as including: • Succession planning • Inter-generational fairness • Recruitment.

22. It is submitted that these articulated reasons are well-established and recognised grounds objectively justifying the imposition of a mandatory retirement age.

23. It is well established that where multiple reasons are given for a retirement age, it is enough if one or more amount to a legitimate aim. As Mr. Justice McKechnie observed in Donnellan v Minister for Justice, Equality and Law Reform & others [2008] IEHC 467 at paragraph 96: “…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”.

24. Evidence will, if necessary, be adduced on behalf of the Respondent at the hearing in respect of these matters. Page 3

25. The Respondent has a clear, consistent and transparent policy of employees retiring at age 65.

26. The Respondent will rely upon, inter alia, its strategic plan for 2018 -2023, which is at Appendix 2.

Outline legal Context

27. Section 34 (4) of the Employment Equality Act 1998 as amended (“the 1998 Act”), states that the fixing of different ages for retirement shall not constitute discrimination if (a) it is objectively and reasonably justified by a legitimate aim and (b) the means of achieving that aim are appropriate and necessary.

28. Section 34(4) of the 1998 Act, prima facie, allowed the Respondent to fix a retirement age without contravening the prohibition of discrimination on grounds of age.

29. Notably, the amendment brought about by the Equality (Miscellaneous Provisions) Act 2015 does no more than set forth the legal position deriving from the relevant Directives of the Council of Europe. That is, the obligation in domestic law is no greater than to comply with Community Law. In that regard, the jurisprudence of the Court of Justice of the European Union (“CJEU”) becomes highly significant.

30. Although the claim is under section 77 of the 1998 Act, the claim must in essence be regarded as being one pursuant to EU law. See, by analogy, the judgment of the CJEU in Case C-268/06 Impact v Minister for Agriculture and Food at inter alia paragraphs 53 and 55.

31. The applicable Directive is Council Directive 2000/78/EC (“the Directive”). Article 6 of the Directive states “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.”

32. It is submitted that the obligations upon the Respondent pursuant to the 1998 Act as amended are no more onerous than the obligations imposed by the Directive. Complainant cannot “approbate and reprobate”

33. Invoking the contract of employment, the Complainant requested to extend her retirement age beyond the contractually provided for age of 65. Page 4

34. The Complainant cannot approbate and reprobate. It is respectfully submitted that she cannot invoke and expressly rely upon one element of the contract- as she did in 2021 in requesting an extension beyond age 65- but disavow or ignore the crucial clause that provides her employment ends when she retires at age 65. This important legal point- that the Complainant cannot approbate and reprobate- must be seen inter alia in the context of the Complainant asserting in the very first paragraph of her submission that she is relying upon the written contract at Appendix 1 her submission.

35. The provisions of Superwood Holdings plc v Sun Alliance & London Insurance plc [1995] 3 I.R. 303 were invoked in support of this position - Blayney J. quoted with approval the following passage from the decision of Budd J. in Coen v Employer's Liability Assurance Corporation [1962] I.R. 314: “…the repudiating party cannot be allowed to approbate and reprobate He cannot thus be allowed to say: ‘I deny the existence of the contract which you say exists between us, but I also rely on a term of that contract …” Retirement Age of 65 was fixed

36. This case must therefore be seen as one in which the retirement age was fixed by the Respondent by being expressly included in the contract of employment.

37. The contract of employment clearly provides that the employment will terminate upon the Complainant attaining the age of 65. This was always crystal clear to the Complainant.

38. This immediately renders the present case different, in an important respect, from many cases in which such claims have succeeded (where in many such cases, the retirement age had not been fixed). By way of example only, one of the cases upon which the Complainant relies - Anne Roper v RTÉ - was a case in which it was found by the Adjudication Officer that RTÉ had not fixed a retirement age in respect of Ms. Roper. [“The Complainant’s contract contains no provision regarding a retirement age”].

39. The Respondent will rely upon, inter alia, the judgment of the High Court in McCarthy v HSE [2010] 21 E.L.R. 165 which is at Appendix 3 to these submissions. In McCarthy, Hedigan J. stated that the Court of Justice decision in Palacios (referred to hereunder) “adequately affirms that a law providing for a retirement age of 65 could not be seen as discriminatory or unreasonable in its effect”. This case involves a retirement on the ground of age, rather than dismissal

40. At paragraph 1 of her submissions, it is asserted that the Complainant was dismissed on reaching the age of 65 years. This is incorrect, in fact and in law. Page 5

41. Reliance is placed on the determination of the Labour Court in Earagail Eisc Teoranta v Richard Lett Labour Court EDA 1513. There, the Court observed inter alia 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 a condition of employment which limits an employee’s tenure to the point at which they attain a specified age. In that regard, it appears to the Court that the authority conferred on an employer by s.34(4) of the Act is to apply a condition of employment to that effect. Such a term can be provided in an employee’s conditions of employment either expressly or by implication, or it can be provided by incorporation where some other document or instrument, of which the employee had notice, can be read in conjunction with the formal contract of employment. The Court further accepts that an employer’s employment policy in relation to retirement can take effect as a contractual condition of employment which is, prima facie, protected by s.34(4) of the Act. However, in the Court’s view that could only arise where the policy is promulgated in such a manner that the employees to whom it applies either knew, or ought to have known, of its existence.”

42. The Respondent will also rely upon the judgment of the CJEU in Palacios de la Villa v Cortefiel Services SA Case C-411/05[2007] E.C.R. 1-8531 (“Palacios”) where the CJEU accepted Spain's justification for a compulsory retirement age of 65, which justification was inter alia that retirement ages assisted in promoting employment for younger people, particularly in difficult economic circumstances. Palacios is at Appendix 4.

43. In Palacios, the legislation in question was not incompatible with the Directive.

44. Subsequent CJEU jurisprudence includes a judgment where the CJEU has upheld a compulsory retirement age of 65 for a long serving part time cleaner (Case C-45/09 Rosenbladt) and a judgment that a mandatory retirement age of 65 for state prosecutors did not breach EU law as the aims of establishing a balanced age structure and intergenerational fairness were legitimate. (Cases C 159/10 and C 160/10 Fuchs and Kohler v Land Hessen).

45. The Respondent has one universal retirement age for all staff. This ensures consistency amongst all of its employees and creates certainty in succession planning.

46. The Complainant is relying inter alia upon a Code of Practice. Arising from the recent Supreme Court decision in Baranya v Rosderra Irish Meats Limited [2021] IESC 77, very real care is needed with in any way elevating a Code of Practice to have, for example, legal standing e.g. in any way analogous or equivalent to primary legislation. Seldon

47. Reliance is placed upon the decision of the UK Supreme Court in Seldon v Clarkson Wright and Jakes [2012] 3 All E.R. 1301, which is at Appendix 5 to this submission. One of the important points emerging from Seldon, is that the objective or aim of a private sector employer does not have to be the same as that relied upon by the State e.g. in enacting legislation; instead, the private sector employer must act in a way consistent with the objective.

48. The Seldon case involved a law firm's partnership agreement, which required partners to retire at age 65.

49. A key issue in the case was whether the legitimate aims used by the firm to justify direct discrimination had to be the same aims as those used by the Government to derogate from the Directive to allow the justification of age discrimination.

50. The UK Supreme Court held that the aims of the firm did not need to be the precise aims set out in Article 6 of the Directive (employment policy, labour market, and vocational training objectives) nor even the aims identified by the Government in taking advantage of the exception. Instead, the employer's aims need only be consistent with those objectives. A critical paragraph is paragraph 67 of the judgment of Lady Hale, and the Respondent relies on this (as well as the generality of the judgments in Seldon).

51. The Court also held that a general policy, as opposed to each retirement on its own merits, could be justified, but that the use of a general policy must be a proportionate means to the legitimate objectives, which in this case it was. Once the use of a general policy has been justified, each individual retirement under it is presumed justified.

52. Following the decision of the UK Supreme Court, the Seldon case was remitted to an employment tribunal which concluded that a retirement age of 65 for partners in a law firm was appropriate and reasonably necessary to meet the legitimate aims of staff retention and workforce planning. That first instance decision was upheld by the EAT in Seldon v Clarkson, Wright and Jakes (No.2) [2014] ICR 1275. The EAT agreed with the tribunal’s finding that the directly discriminatory effect of the retirement age was objectively justified. The EAT held that when assessing the balance between the discriminatory effect of the chosen retirement age on the one hand and the employer’s legitimate aims on the other, it was perfectly plausible that a range of retirement ages – albeit a narrow range – could be identified as appropriate. The mere fact that the employer might have chosen some Page 7 other age, either side of 65, did not automatically lead to the conclusion that retirement at 65 was not justified.

Conclusion

53. In this case, it is plain that there was a contractually “set” or “fixed” retirement age. The Complainant knew of it. This is emphatically not a dismissal on the ground of age; it is the ending of an employment relationship in accordance with the terms and conditions of that employment.

54. Mandatory retirement at age 65 is an appropriate measure in this case to facilitate legitimate aims.

55. The application of a mandatory retirement age here is objectively justified and the reasons articulated more than amply provide legitimate justification. This is an example of there being legitimate aims which are in the public interest, and the Respondent has used a proportionate means of achieving a legitimate aim or aims.

56. It is respectfully submitted that the Complainant’s claim is not well-founded.

57. The Respondent reserves its right to adduce further and better submissions at the remote hearing on 14 June 2022.

Summary of Pertinent Evidence of claimant’s manager Mr.X

The witness summarised his experience with the respondent company and advised that the 65 year retirement age applied to all staff and confirmed that there had never been any other retirement age within the company.The witness confirmed that the claimant had not signed her contract in 2014.Mr.X confirmed that the claimant’s retirement was discussed with her at the October 2020 appraisal meeting. The witness asserted that he told the claimant that if she wished to have her retirement age extended beyond 65 years , she would have to go to the Board of Directors. The witness confirmed that when the claimant’s letter seeking an extension of the retirement age was received he read it out at the Board meeting and it was discussed but was not agreed. When the witness was asked was it unanimous , the witness replied that it was a Board matter – the only input he had was about staffing arrangements. When the witness was asked why it was very important to have a retirement age of 65 , he replied that you have to have clarity and structure and decisions have to be made on what is going to happen.The witness confirmed that his opinion was sought. The witness said that his interest was in the operation of the company – “ at that time we were adequately staffed”. The witness said we needed clarity and we had already made plans .The witness was asked if he agreed with the exchange between Mr Y and the claimant in which the claimant was advised that it was agreed unanimously by the Board not to extend the claimant’s contract and referenced having a staff structure and a succession plan in place dated the 16th.March 2021and he replied Yes. The witness advised that when the claimant lodged a complaint against him subsequent to the meeting , he was off on sick leave and did not return to the middle of May. Mr.X explained that the Board met on a monthly basis .The witness said the claimant was appealing the decision of the Board – the witness said he was not part of the appeal and had no role in the appeal process.

The witness referenced intergenerational fairness providing job opportunities , that the company was locally owned and referenced opportunities to avail of jobs with the company .The witness said he definitely believed jobs with the company would be much sought after. The witness was referred to Ms.H and was asked if she was an employee .He replied she was not a contracted employee and that she was casually employed for 3 hours a week. The witness referenced the company being subject to regulation and governance by the Central Bank. The witness said he did not think that the strategic plan – which was introduced in 2018 – was relevant to the claimant’s case. He stated that the plan mentions planning and identified weaknesses. The witness was asked if the plan addressed succession planning – Mr.X replied that we looked at it again and introduced a plan and a structure – an /operational / succession plan. When asked about the benefits of a uniform retirement age , Mr.X said the biggest advantage was certainty and you can plan for it.

Under cross examination , the witness was adamant that he advised the claimant when the matter came up at the meeting that she would have to put her request in writing. The witness said he was surprised when the first communication was received from the claimant on the 22nd.February.It was put to the witness if he had ever considered that there should be some communication with the claimant in anticipation of her retirement. It was put to the witness that the claimant’s contract provided that her employment could be extended by mutual agreement. The witness was questioned about what communication took place – when was any appropriate planning put in place – the witness referenced the staff appraisal and giving the claimant an opportunity to talk about other things. It was put to the witness that the claimant had stated throughout that this was not communicated to her. The witness was questioned as to why he had referred to the claimant’s statement that she did not want to retire in his appraisal but there was no reference in the Board,s minutes of the 28th.October 2020 in his managers report to the Board recording that he advised her to put her request in writing to the Board .The witness was asked if the claimant had mentioned a year in her exchanges on the matter with him and he replied No – that it had come from the Board. The witness said the first succession plan was put in place when the strategic plan was being drafted. When asked if the claimant would have seen the strategic plan , Mr.X replied I wouldn’t have thoughts so. He would have been aware of bits of it.They had talked to their HR advisers .The witness confirmed he had a lot of input into it.

The witness was referred to the final paragraph of the second set of minutes of the Board meeting of the 28th.October referencing a retirement policy being put in place for the company - pages 25/26 and was asked if this was being proposed because the claimant wanted to stay on ? The witness replied I don’t think so , No. He went on to say , I am not saying we did it because she was retiring. The witness accepted there was no policy in place at the time. The witness was asked if he accepted that the minutes under “Unfinished Business” all related to the claimant and that because she wanted to stay on at work , the Board were adopting a course of action to prevent that happening. The witness replied No – That’s not true.

The witness referred again to his assertion that he told the claimant to put her request for an extension in writing to the Board. It was put to him that the minutes contain no record of this advice to the claimant. The witness was asked if he accepted the minutes of the December 2020 Board meeting established that there was no retirement policy in place .The witness referenced the strategic plan – the succession plan and the updating of policies. He referenced contracts and the need for certainty. The witness was questioned on his submission to the December Board meeting on objective justifications – he did not think there was any Health & Safety issue arising in the context of the claimant’s application. The witness was questioned on the minutes of the December meeting and in particular with reference to the plan to “ expand the objective justifications”.The witness said that he put it to the Board that we need to put things in place for all retiring staff – he said we were looking at matters of policy and a retirement plan and their HR company were helping them to put it together. The witness was referred to the letter of the 1st.Feb. 2021 to the claimant regarding annual leave. He confirmed this was the first communication to the claimant on her retirement because they had no communication from her regarding her plans – she did not indicate what she wanted to do. The witness denied that he said at any stage that he would find information for the claimant.

The witness was referred to the minutes of the 22nd.Feb.2021 Board meeting and asked if the issues raised were all dealt with in the succession plan – the witness replied he did not know – the plan was for everybody and “ we are missing bits and pieces in between”. The witness said they had adequate staffing in place .He clarified that nobody had left the company since the claimant left. Mr.X said we have had a big expansion in the company over the last 2.5 years. He said 3 additional people had been appointed since the claimant left – their roles were in administration and working as tellers – they worked 4 days a week and were training a day per week to acquire formal qualifications. They commenced recruitment in early Sept. 2022.The successful candidates were not necessarily school leavers ranging in age from 24/25 /40.The witness said we would have been overstaffed if the claimant had been kept on. The claimant’s representative referred the witness to the strategic plan and its references to opportunities opening up in response to the increasing demand for their services.

The witness said Ms.H was not employed and that she was a contract worker – he confirmed she was not allowed enter the Car Draw – when asked why Ms.H was described as staff in the strategic plan , the witness described Ms.H as support staff and that there were 2 others there. Mr.X said she was paid by cheque and he did not know why she left the company .He said Ms.A dealt with her. When asked if the claimant was prevented from contact with HR , the witness said he did not know.It was put to the witness that no documentation was presented to verify Ms.H was on a contract for service.

It was put to the witness that when he was asked about the succession plan , he didn’t seem to be aware of it even though it was referenced by him in the company letter of the 23rd.February rejecting the claimant’s application for an extension. It was put to Mr.X that he was very vague in relation to the contents of the plan. The witness replied we had a lady returning from maternity leave and she would cover the claimant’s role. It was put to the witness that there was nothing in the succession plan to say that claimant could not stay on in employment – the witness accepted it was not referred to in the plan.He said this was an operational matter – management has responsibilities – we were able to cover as someone was coming back from leave.

The respondent’s representative asserted that the case did not turn on procedural fairness – He reiterated that Donnellan provides that as long as one reason is legitimate , the rejection of the claimant’s application to extend her employment is justified.

Summary of Pertinent evidence of Mr.Y – Chairman of the Board

The witness confirmed this was the first occasion a complaint was submitted .The matter was raised at a Board meeting around Dec. 2020 – Jan 2021; the claimant’s manager had been talking to her about her appraisal when the issue was raised. The witness said we were unaware of the claimant’s indications and were awaiting correspondence from her to indicate what she wanted to do. The witness said the matter was brought up at the Board meeting by Mr.X at the February 2021 Board meeting and the witness indicated “ this was the first time we were aware”. She was seeking to have her contract extended .The witness said he was pretty sure that the claimant was aware of the Board meeting.Mr Y said the Board discussed the matter in detail and they pointed out that due to succession planning and the staff structure , they weren’t for making any changes. The witness said the decision of the board was unanimous. The witness said the Board agreed on succession planning and staff structure being adequate. The 65 year age limit was put in place in 2014 when the claimant got her contract .The respondent had a policy in place in order to have certainty in recruitment.

The witness was asked if it was the respondent ‘s perspective that it was desirable to put in place a set retirement age and he replied yes it was desirable. The witness said he forwarded the letter of the 16th.March setting out the reasons for the Board’s decision. The witness attended the Board meeting where the claimant was challenging the refusal to grant the extension and set up a sub-committee of the Board .The claimant had a number of questions and the questions were answered When asked why the appeal was rejected the witness responded that he brought to the attention of the Board the strategic plan and a succession plan. The witness accepted the succession plan was a factor and also referenced demographic reasons – the deprived area and intergenerational fairness. In response to the gap between age 65 and 66 , the witness said , I say it wasn’t that she couldn’t avail of Social Welfare- she would qualify. The witness accepted that there was a clause in relation to mutual consent and submitted that the claimant was aware of her contract at that time. As far as he was aware , the claimant refused to sign her contract. He was not sure of the claimant’s issues with the contract - he said it could have been working hours.

The witness was unclear about why a cleaner – Mrs.H - had continued past 65 but the witness said it was clear she was not a contracted staff member. The witness did not know why Ms.H left – but thought she left before the claimant.

Under cross examination , the witness confirmed that the claimant had raised the matter of Ms.H with him .He confirmed to the claimant that Ms.H did not have an employee contract – he said she was employed as a cleaner. The witness stated that there was no contract employee over 65 in the employment .He said he was only made aware of the claimant’s intentions on the 22nd.February.It was put to the claimant that he was well aware of the claimant’s intentions from the 28th.October and her desire for an extension but they were awaiting communication from her.It was put to the witness that he was well aware from the appraisal meeting that Mr.X had given a definite indication of the claimant’s intentions. When asked if he wrote to the claimant asking her to put her request in writing , the witness responded they were awaiting communications as to why the company should extend the contract .The witness said a retirement policy was put in place in 2023.The witness confirmed there was no policy in place at the time when the claimant was seeking an extension. When asked if he highlighted to the claimant what she had to do – the witness responded – she would have to state and communicate to the Board what she wanted the Board to do.The retirement policy was drafted on foot of advice – the witness was asked if the ILCU and HR were consulted – the respondent replied it was a matter for each credit union and it was contract specific. The witness said they were still awaiting communications from the claimant in February. When they didn’t get a response from the claimant they took it she would retire. When asked if the claimant’s request to stay on was discussed at the Board meeting – the witness replied no but later when referred to page 25 of the minute records accepted that there was a possibility it was discussed. It was put to the witness he was already aware of the claimant’s intentions but did not communicate with her. The witness was asked if the Board discussed how to defend a claim . The witness referenced the absence of a retirement policy and acknowledged that objective justifications were discussed.The witness was referred to page 55 of the minutes of the April meeting - where the claimant outlined her position and the minutes of the December 2020 meeting where the Board had indicated they would be seeking the advice of another expert. The witness confirmed that the first written communication to the claimant on her retirement was relating to annual leave. The witness said the justifications for retirement were discussed at the December 2020 meeting but he was not sure. The witness was referred to the 2015 succession plan. The witness was asked how it would affect the succession plan if the claimant did not retire – the witness replied “ you have to plan ahead for all eventualities – no one was targeted “.When asked to explain how the succession plan would have been affected if the claimant stayed on , the witness replied it was in her contract .It was put to the witness that he could not answer the question – he replied the plan was there for a reason and not specifically one individual. The witness confirmed the company took on one or 2 people after the claimant left .

The witness confirmed the closing date for recruitment of staff following the claimant’s retirement was Sept.2022 and that one of the justifications was to recruit highly educated people to these positions. He confirmed demographics and social deprivation was a factor.It was put to the witness that the claimant would assist older people coming into the office and that there was no issue with her work – this was confirmed by the witness. The witness said the claimant would have struggled with some aspect of IT – it was put to the witness that this was never raised with the claimant and no documentation to verify it was presented. The witness said the additional staff were recruited for a reason and not specifically to replace the claimant – the were taken on as tellers – he said this was an operational matter for the management team. The witness was referred to the minutes of the March 2021 meeting and the decision of the Board that the matter was now closed.

It was put to the witness that the claimant wanted to know where she stood – the witness replied she was informed where she stood .The letter to the claimant of the 23rd.February 2021 was referenced where the claimant was advised that it was not proposed to extend the contract for reasons of succession planning and staff structure. It was put to the witness that there were no reasons why the claimant could not stay on when at least 2 additional staff were taken on – the claimants representative submitted that it appeared that the witness took a decision and they were going to stick with it. The witness replied that the Board decision was made on foot of the claimant’s contract. When questioned about being unable to respond the witness said I was dealing with grievances and an appeal – I can’t recollect everything.

It was put to the witness that he knew the claimant was possibly taking a case ; that objective justification was initially discussed at the December meeting – as to how the Board were going to deal with the claimant – the claimant was going to go and the Board did not take on board her request to remain. The witness replied I didn’t have an option .It was the Board who made the decision. It was put to the witness that he put his proposed action to the Board and they agreed with him .The witness stated the Board was happy that the claimant would go at 65 because of succession planning and staff structure.

The age profile was staff in the employment was set out – of the 18 staff –

9 < 40 years

Remainder were in ages ranging from early 40’s – mid 50’s and one person was 61

It was put to the witness that there were no issues around the claimant’s IT skills , the witness replied he could not comment as he he did not deal with this and the board did not deal with operational matters.

In summing up the respondent’s representative asserted that this statutory claim was not well founded and that this was not a case of unlawful discrimination.It was submitted that the evidence of the complainant and the respondent’s witnesses was of limited relevance to the issues that had to be determined. He referred to key legal principles – he highlighted the significance of the contract of employment and emphasised that it set a fixed retirement age of 65 for all employees. He submitted that it was in no way targeted at or personal to the claimant .This age was set by the respondent. It was submitted that this distinguished the case from other cases relied upon by the claimant. The claimant had sought an extension.It was submitted that the fact that the claimant had not signed the contract was neither here nor there .It was submitted that in her complaint to the WRC the claimant had accepted that the contract provided for a retirement age of 65 that can be extended if both parties agree. There was a dispute between the claimant and Mr.X regarding the meeting of the 5th.Oct.2020 – the claimant said Mr.X led her to believe that he would make enquiries while Mr.X asserted that he told her if she wanted an extension she would have to request that.

A written request was received from the claimant on the 22nd.Feb. 2021.It was submitted that the Labour Court had determined that a termination of employment by way of reaching retirement age should be distinguished from a dismissal on grounds of age.

It was submitted that it was clear from the claimant’s evidence that she was seeking to bridge the gap between 65 and 66 before she became eligible for a state pension.ADJ-00024869 was referenced – where it was found that the income gap does not create a legal obligation on the employer to offer extended working for the period. It was submitted that case law demonstrates that age is in a special category vis a vis the other discriminatory grounds – while a retirement age can discriminate it is by no means unlawful discrimination. It was submitted that fixing a retirement age can be permissible where the criteria of legitimacy and proportionality are met. It was submitted that this was the case here where succession planning and intergenerational considerations gave rise to a retirement age of 65. It was advanced that Seldon accepted tht succession planning and intergenerational fairness were legitimate aims justifying retirement on reaching one’s 65th.birthday.

It was submitted that the reference to Ms.H was of no relevance as she worked on a contract for service. It was submitted that if the extension had been granted it would have impacted upon succession planning and intergenerational fairness. Engaging the claimant on a fixed term contract would have carried its own legal complexities and undermine the employers age limit of 65 years for retirement.It was submitted that the respondent had identified a number of justifications and that Donnellan had found that any one of those could be sufficient in order to successfully defend the claim.The representative indicated that if the outcome of Mallon issued it could have a direct bearing on the case and the representative signalled that the respondent would make further submissions in this regard.

Findings and Conclusions:

I have reviewed the evidence presented at the hearing and noted the respective positions of the parties.I have taken account of the submissions made by the parties , the direct evidence of the witnesses and all of the authorities invoked by the representatives.

Section 6(1) of the Act provides as follows :


	Discrimination for the purposes of this Act.	6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.
		(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”),
		(b) that they are of different marital status (in this Act referred to as “the marital status ground”),
		(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),
		(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),
		(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),
	Section 85A(1) of the Act provides : “Wherein any proceedings , facts are established by or on behalf of a complainant , from which it may be inferred that there has been discrimination in elation to him or her , it is for the respondent to prove to the contrary .	(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

The respondent is required to establish :

1)That there is a contractual retirement age that forms part of the terms and conditions of employment ;

2) that the policy is objectively and reasonably justified by a legitimate aim ; and

3)the means of achieving that aim are appropriate and should go no further than is necessary.

The determination as to whether a measure is discriminatory is based on an assessment of the evidence – mere generalisations are insufficient.

The respondent argues that the claimant cannot approbate and reprobate – ie on the one hand invoke the contract in support of her position while relying on the extension by mutual agreement of her employment past 65 while at the same time contend that she is not bound by the contract and the 65year age limit because she never signed it when it was presented to her in 2014.

I accept that a contractual retirement age of 65 formed part of the claimant’s terms and conditions of employment – however this was qualified by the clause that provided for an extension beyond the age of 65 by mutual consent.The claimant was aware of these provisions and has argued that it was one of the issues that influenced her when she decided to refrain from signing her contract of employment.

The next matter that arises is whether the respondent can objectively and reasonably justify the decision to insist on retirement by reference to a legitimate aim or aims .

In declining the claimant’s application to continue in employment following her 65th.birthday the respondent relied upon the Board having “ a staff structure and succession plan in place and are satisfied that the staffing arrangements are adequate”.IN EDA 2232 , Bord na Mona plc v Kenny the Labour Court stated “objective 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”.

The dispute between the parties in relation to the follow up action required following the claimant’s raising of the matter at her appraisal with Mr.X was aired at all hearings – I found the evidence of the claimant to be more convincing than that of Mr.X and given that Mr.X makes no reference in his report to the October 2020 meeting to the effect that he advised the claimant to submit a request in writing to the Board , I prefer the evidence of the claimant.

I have noted the submissions by both parties in relation to the retention in employment of Ms.H after the age of 65.No documentary evidence was advanced by the respondent to support their contention that Ms.H was engaged on a contract for service as opposed to a contract of service.

While I acknowledge that the respondent expanded the reasons for justification of the 65 years age limit to include intergenerational fairness and recruitment in their submission to the WRC , I accept the contention of the claimant’s representative that it is clear from the chronology set out in the various Board minutes that this expansion was done to provide retrospective justification for the negative response to the claimant’s request for an extension of her contract.

The WRC was presented with 2 versions of minutes of the 28th.October 2020 meeting of the Board – one version records the reference by the manager Mr.X to conflicting advice about a retirement policy and Mr.X reviewing the matter further .It is notable that in his evidence Mr.X stated that the decision about the contract extension was solely a matter for the Board even though it is clear from the minutes of the Board meetings that Mr.X had a significant input into the matter and the deliberations of the Board.

The second version of minutes of the same meeting records as follows “ We have a staff member due to retire next April.In her appraisal the staff member doesn’t want to retire.The contract states due to retire on her 65th.birthday.Succession planning is required.The situation was discussed in detail.A new contract would be required for the extension for a year.This is not ageism , we need to plan for the eventualities .K said that the decision is a management decision and that the contract is clear.A rolling contract is a new contract ,K said even as a Board member they are restricted on their length of time on the board and in different roles.E advised that the employee may come to the Board if the decision is not to their liking .It is notable that in his contribution to the Board’s deliberations , Mr.X makes no reference to the extension by mutual agreement of the age limit in the claimant’s contract.It is not clear from the documentation submitted by the respondent , which meeting minute was adopted by the Board at the subsequent meeting on the 21st.Dec. 2020.

At the December meeting the minutes record Mr.X referred to drafting a retirement policy and explained “ objective justifications for retirement”.At this meeting , Mr.X suggested that we speak to HR A and HR B to “ask for assistance in putting more legalistic language to our objective justifications”.

The minutes of the 22nd.February meeting read as follows :

“Mr.X discussed the retirement of a staff.He sent her a letter asking about her retirement and how she intends to take her annual.The staff member sent a letter to the board and management requesting a continuance of her contract beyond her expected retirement date .Mr.X said that we have our justifications for the retirement . Mr.X advised he spoke to Ms.D and her advice was discussed. Ms.S advised that she had spoken to the staff member .Mr.Y suggested that we stick to the contract , and the staff member can claim job seekers for the year until they are 66.It was proposed by Mr.Y and seconded by P&K.K suggested that we have succession plan and replied to the email by sending a letter which he read to the Board .The Board agreed with the letter sent.The Board feels the matter is now closed.”.The letter concerned was dated the 16th.March 2021 and stated “ It was agreed unanimously by the Board of Directors not to extend your contract”

An appeal to the same Board ensued in April and the claimant received a letter of rejection of the appeal on the 28th.April 2021 – in this correspondence the Board sets out the following justifications. –

Succession Planning

Demographical reasons

Intergenerational fairness and recruitment.

In the circumstances , I find that the justifications of succession planning , staff structure and adequate staffing arrangements – communicated to the claimant by the manager Mr.X on the 23rd.Feb. 2021 are the relevant justifications to be examined. I note that no retirement plan was in place at the time at the time of the claimant’s application for an extension.The succession plan dated December 2015 was submitted into evidence and sets out the cover arrangements in the event of absence of a staff member – “In the event of an absence of key personel , the employer will invoke the Operational Succession Plan and the contingency /potential successor will assume the role on an interim basis until the key personnel return to work or is replaced.” The document goes on to list the incumbent and the potential successor .In relation to tellers – the role of the claimant the potential successor is set out as “ All teller staff can do the roles associated with admin /teller.On numerous occasions throughout the hearings , the respondent’s witnesses and representative referenced the Strategic plan together with the succession plan.

The strategic plan – which was submitted into evidence references :

a)Strengths

“Staff are long serving and are willing to learn new skills and adapt to changes in environment and regulations”

b)Weaknesses

Lack of succession planning

“It is imperative that a strong succession plan is in place – we have a succession plan in place and the nomination committee are very active addressing the skill sets we have and need going forward The succession plan worked well and the skill sets among the Board and BOC members reflect this”

c)Threats –“ One of the main reasons that a large number of finance service providers are amalgamating is that they are unable to attract and keep volunteers to serve on Boards and Board oversight committees .It is imperative that the respondent has a strong nominating committee in place and that vacancies are filled by the right candidates if and when they occur .The Nominating Committee are active and understand their function.The current composition of our Board with their skill sets is excellent”.

It would not be unreasonable to deduce from the foregoing that the references to succession planning in the strategic plan referred to volunteer and Board members exclusively and not to staff.

I find no cogent or compelling reason has been advanced by the respondent either by way of submissions from their representative or by way of the evidence of Mr.X and Mr.Y to explain how an extension of the claimant’s employment would impact – negatively or otherwise on succession planning.

As regards the impact of conceding the extension of the claimant’s contract on the staff structure , I note that the claimant was employed as a teller and find that no evidence was advanced by way of submission or from the respondents witnesses to explain how retaining the claimant would have adversely affected the staff structure or impeded progression for any staff .

With respect to the adequacy of staffing levels, I note the references in the strategic plan to remarkable growth in membership pg 43 and page 44 expansion of services.No convincing argument was put forward to demonstrate how extending the claimant’s contract would adversely affect staffing levels , particularly given the recruitment of additional staff the year following the claimant’s retirement.The impact of continuing the claimant in employment on the matter of staff staffing levels did not appear to feature in the consideration of the Board – the decision makers .It is clear from the minutes and the testimony of the respondent’s witnesses that no consideration was given to considering a fixed term contract , an alternative role or a part-time attendance arrangement as an alternative to terminating the claimant’s employment

While I acknowledge the submissions by the respondent that “ , It is well established that where multiple reasons are given for a retirement age, it is enough if one or more amount to a legitimate aim. As Mr. Justice McKechnie observed in Donnellan v Minister for Justice, Equality and Law Reform & others [2008] IEHC 467 at paragraph 96: “…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”, I do not accept that any of the initial jusitifications advanced by the respondent are legitimate.The minutes of the Board meetings reveal that no alternatives to terminating the claimant’s contract were explored and the entire focus of the Board from the outset was creating justifications that are entirely unconvincing .

The Industrial Relations Act 1990 (Code of Practise on Longer Working ) (Declaration ) Order 2017 (S.I. 6002017) sets out best practise for managing the engagement between employers and employees in the run up to the retirement age within the employment concerned.While I note that the respondent was dismissive of the significance of this Statutory Instrument , the Code of Practise references notification procedures , the carrying out of objective assessments in the context of justifying the retirement and access to an appeals mechanism – none of which were observed by the respondent in the instant case.The claimant should have been given adequate advance notice of her retirement , of the respondents response to same and should have been afforded an opportunity to test the justifications advanced by the employer in advance of a decision being made on her requests for an extension. Additionally to comply with the Code of Practise , the claimant should have been afforded access to a proper appeals process – in this case the claimant appealed to the same body that made the original decision.

I find the claimant was discriminated against on age grounds and am upholding her complaint.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I require the respondent to pay the claimant €25,000 compensation for being in breach of the Act.

Dated: 24th January 2024

Workplace Relations Commission Adjudication Officer: Emer O'Shea

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