Complainant

Respondent

Parties

Carl  Davidson

Amari Ireland Limited

Representatives

Mr Shaun Boylan BL instructed by   Sean Ormonde & Co., Solicitors

Fergus Dwyer , 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-00048648-001

15/02/2022

The Complainant commenced employment with the Respondent on 25th April 1994. He was employed as an aluminum product specialist working in the Respondent’s sales team.

Gross monthly pay was €5,241.66. The Complainant worked 37.5 hours per week.

This complaint was received by the Workplace Relations Commission on 15th February 2022.

1.       The Complainant commenced employment with the Respondent on 25th April 1994, he was employed as an aluminium product specialist working within the Respondent’s sales team.

2.       During his 27 years of service the Complainant had an unblemished work record.

3.       Clause 7 of the employment contract provides that “Your normal retirement age is the attainment of your sixty-fifth birthday” i.e. 22nd September 2020.

4.       In June 2020 the Complainant requested an extension to his employment beyond the normal retirement date as provided in his contract.

5.       The Respondent was willing to the Complainant’s contract by way of a fixed term contract for a period of one year i.e., 22nd September 2021.

6.       The Complainant continued to work for the Respondent without issue for another 10 months and in August 2021 made enquiries to having his contract further extended.

7.       At a meeting with the MD on 30th August 2021 the Complainant was informed that he did not now meet the desired age profile for the company and he could not justify keeping the Complainant on and that accordingly, they would not be extending his contract further and were in effect unilaterally enforcing the retirement provisions of the contract.

8.       The Complainant subsequently emailed the MD informing him of his dejection of the termination of his employment and his confusion over the reasons offered to enforce his retirement. There was no reply to this email and the Complainant’s employment was terminated as and from 22nd September 2021.

Basis for Claim:

The Claimant submits that the termination of his employment by the Respondent by reason of his having reached the age of 65 constitutes discrimination on the ground of age contrary to section 6(2)(f) of the Employment Equality Act 1998 as amended (‘EEA’) and contrary to Article 2(2) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (‘the Framework Directive’).

The Claimant submits that the conduct of the Respondent, namely its failure to extend his contract and its unilateral decision to enforce the retirement provisions, constituted discriminatory conduct against the Claimant on the basis of his age. At the time of the discriminatory treatment complained of, the Claimant was 65 years of age.

By way of comparator, Mr M is 70 years of age and continues to act as managing director of the Respondent. Mr M is not a shareholder of the company nor does he retain any ownership status within the Respondent and is accordingly a contractual employee the same as the Claimant.

The Claimant will give evidence at the hearing of the action that the retirement age of 65 years of age was not a compulsory retirement age and that the said term of the contract was widely disregarded by the Respondent across the company.

Legal Submission:

Section 6(1) of the EEA provides:

“discrimination shall be taken to occur where –

(a)    A person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) …”

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

Both the Framework Directive and the EEA make specific exceptions from these general rules prohibiting discrimination so as to allow for compulsory retirement ages. Article 6(1) of the Framework Directive permits exceptions to the rule against differences of treatment on grounds of age, where they are “objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary”. Recital 14 of the Directive states that “This Directive shall be without prejudice to national provisions laying down retirement ages.”, which was interpreted by the EJC in Félix Palacios de la Villa v Cortefiel Servicios SA Case C-411/05 [2007] ECR I-8531 as permitting compulsory retirement ages to be set only where they are objectively justified.

Section 34(4) of the EEA implements Article 6 of the Framework Directive. As originally enacted, it provided a blanket exemption for retirement ages, but it was amended by section 10 of the Equality (Miscellaneous Provisions) Act 2015, so as to explicitly incorporate the requirement that retirement ages be objectively and reasonably justified, as underlined by the ECJ in in Félix Palacios de la Villa v Cortefiel Servicios SA Case C-411/05 [2007] ECR I-8531 and its subsequent decisions on compulsory retirement ages, considered below. Accordingly, section 34(4) now provides:

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

(a)    It is objectively and reasonably justified by a legitimate aim;

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

Section 85A provides for the allocation of the burden of proof in discrimination cases as follows:

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

Therefore, once a prima facie case of differential treatment due to age is established, the burden rests with the Respondent to prove either that age was not in fact a factor in the decision to terminate his employment, or that the termination of his employment due to age was justified. The latter requires the Respondent to prove:

a)       That a compulsory retirement age of 65 was a term of the Claimant’s contract of employment ;

b)      That that compulsory retirement age pursued a legitimate aim; and

c)       That the compulsory retirement age of 65 was a proportionate means of achieving that aim.

Requiring an employee to retire at a particular age is prima facie discrimination on the age ground. This is clear from the decision of McKechnie J in Donnellan v Minister for Justice [2008] IEHC 467, where he held:

“It is worth noting that under Article 10(1) of the Directive, if a claimant can establish a prima facie case that age was a material causal factor in the decision, then the burden of proof shifts to the respondent to show that age was not such a factor, or else that it was justified …..

It is clear that the imposition of mandatory retirement age is discriminatory, per se, under the Directive, in that, it places one person at a disadvantage to another, who would otherwise be in the same situation, on the grounds of age alone.

It must thus be determined whether such discrimination is saved by one or more of the justifications under the Directive”.

Initially, in the summer of 2020, the Respondent – through Mr M – indicated it was satisfied that he could continue to working beyond the age of 65. However, this attitude changed approximately 10 months later when Mr M expressed concern over the age profile of the workforce. At all material times thereafter, it was made clear to the Claimant that he would not be permitted to remain in employment with the Respondent beyond the age of 66 despite his request to do so, with the alleged company retirement policy being cited as part of the rationale for this decision. It is submitted that this change in attitude by reference to the age profile of the company and the Claimant’s place within it is prima facie discrimination based on the age ground.

As noted above, the Claimant’s contract of employment provided for a normal retirement age at the attainment of the employee’s 65th birthday. However, at the time of the Claimant’s termination of employment, Mr M was older than the Claimant. 47

It is submitted that in order for an employee to rely on a compulsory retirement age, it must be clearly incorporated into the relevant employee’s contract of employment. The Labour Court’s decision in Earagail Eisc Teoranta v Richard Lett EDA 1513 (31 July 2015) arose from the termination of Mr Lett’s employment on reaching his 66th birthday. He claimed that the circumstances of what he characterised as his dismissal constituted discrimination against him on the grounds of his age. The Labour Court determined that the jurisprudence of the CJEU on the circumstances in which compulsory retirement is saved by Article 6 of the Framework Directive was relevant only if the court found that a retirement age was in fact fixed by the respondent and that the retirement age applied to the complainant. The authority conferred on an employer by section 34(4) of the EEA was to apply a condition of employment to that effect.

As to how a retirement age could be incorporated into a contract of employment, the Labour Court determined:

“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 ethe policy is promulgated in such a manner that the employees to whom it applies either knew, or ought to have known, of its existence”.

The Labour Court noted that a term could be implied into a contract by reference to the officious bystander test or by the custom and practice test. The company accepted that Mr Lett’s contract of employment did not contain an express term stipulating a retirement age. However, the respondent had produced a staff handbook in which the normal retirement age for all staff was expressly stated to be 65. The Court accepted the complainant’s evidence that he neither had sight of, nor knew of the handbook until it was produced at the hearing before the Equality Tribunal. It did not accept that the terms of the handbook were incorporated in the complainant’s contract of employment or that they became an implied term in his contract. It further rejected the respondent’s submission that a retirement age of 65 or 66 had consistently been applied since the adoption of the retirement policy in 2006, such that it had become an implied term through custom and practice. The Labour Court found:

“Having regard to the totality of the evidence adduced the Court cannot accept that the Complainant had actual or constructive knowledge of either the handbook or of a fixed retirement age of either 65 or 66. The Respondent had ample opportunity to inform the Complainant of a requirement that he retire at age 65 or 66 over the currency of his employment. No evidence was adduced of the Complainant having been so informed or having been provided with any document from which such a requirement could have been discerned. There was no express term in his conditions of employment requiring him to retire at either age and, in the Court’s opinion, no such term can be regarded as having been implied or incorporated on any of the accepted tests.

In these circumstances the Court must hold that the Respondent had not fixed a retirement age in respect of the Complainant and that he was dismissed because of his age. In these circumstances s.34(4) of the Act cannot avail the Respondent.”

In the instant case, while the contract of employment provides for a normal retirement of age of 65 years of age, the Respondent did not expressly incorporate same as being a compulsory term nor did it incorporate same as an implied term of the contract of employment, given the fact that other employees were allowed work beyond their 65th birthday.

In Valerie Cox v RTE ADJ-00006972, 16 March 2018, the WRC awarded the substantial sum of €50,000 in compensation for age discrimination where the employer was unable to establish the existence of a compulsory retirement age in respect of the complainant. The Adjudication Officer found that there was no compulsory retirement age of 65 set out in either the contract of employment or the staff manual. Furthermore, the staff manual did provide for employees to work beyond the normal retirement age of 65 years by the provision of a Fixed Term Contract of Employment – duration unspecified. The respondent had failed to establish the existence of a compulsory retirement age, had therefore failed to objectively justify the termination of the employment at age 65 years, so had discriminated against the complainant on the age ground.

These decisions show that there is a heavy onus on an employer seeking to prove that a compulsory retirement age was implied into a contract of employment. The close level of scrutiny of the contract of employment and surrounding circumstances requirement to determine whether a compulsory retirement age is incorporated into the employee’s terms of employment is again illustrated by the recent decision of the WRC in An Aircraft Refueller v An Aviation Fuel Company ADJ-00016441; [2020] 31 ELR 38, 16 September 2019. In particular, this decision emphasises the need for the employer not only to establish the existence of a general policy on retirement but also that it was specifically applied to the employee at issue.

In that case, the complainant’s contract of employment did not reference a compulsory retirement age. The respondent did provide other documentation to the complainant which related to a pension scheme and identified 65 as the retirement age. The Adjudication Officer did not consider these sufficient to make it clear that a compulsory retirement age of 65 existed. It said:

“With regard to the first premise, i.e. that they had established a normal retirement age of 65, the respondent refuted the complainant’s contention that he was unaware that such a requirement existed. Having carefully reviewed all of the evidence adduced, I am satisfied that there is no explicit contractual arrangement between the respondent and the complainant with regard to an established retirement date.

While the respondent accepts that no explicit contractual arrangement exists, they contend that there is an implied retirement age of 65 and that this is a well-established term. In support of their position in this regard, the respondent places significant reliance on the fact that the occupational pension scheme provides for a retirement age of 65 years.

The evidence shows that the complainant was, on a number of occasions, provided with explanatory booklets and investment guides in relation to the pension scheme. These documents, some of which ran to almost 30 pages, contained a myriad of information in relation to all aspects of the pension scheme. Given the technical nature of some of this information, I consider it to be unreasonable of the respondent to suggest that the complainant should have gleaned from these documents that a mandatory retirement age of 65 was in existence and that this would require him to retire on this 65th birthday i.e. 13th August 2018.

Having reviewed the documentation in question I note inter alia, the following references to retirement date:

“When can I retire? In normal circumstances you will retire on your 65th birthday. This is your “normal retirement date”.

“With the company’s consent, you may also be allowed to defer your retirement beyond your normal retirement date.”

“Normal retirement date means your 65th birthday or such other date as the company may specify and notify to you”.

In the light of the information set out above and the circumstances in which it was provided to the complainant, I find it unreasonable that the respondent will contend that the complainant was, as a result, fully informed of the existence of an established mandatory retirement date and that this specifically applied to him.

In addition, I note that there were a number of opportunities, arising out of negotiations, between the respondent and the recognised trade union on behalf of the employees and the issuing of revised statements of terms and conditions in 2012, when the respondent could have formally included the provision in relation to normal retirement date, however, this was not done”.

In the instant case (particularly in relation to the last paragraph cited above), when the Respondent offered the extension of the Claimant’s contract in September 2020, it was open to it to make clear at that stage that no further extensions would be offered and that it would be insisting that the Claimant retire at the end of the fixed period. However, this did not in fact occur.

Legitimate aim

Even if the Respondent succeeds in proving that clause 7 of the Claimant’s contract of employment established a compulsory retirement age (which is denied) it is submitted that the Respondent cannot establish that a compulsory retirement age of 65 pursues a legitimate aim. No justification for the Respondent’s alleged retirement policy has ever been communicated to the Claimant.

Aims such as promoting access to employment for younger people (Georgiev v Tehnicheski universitet, Joined Cases C-250/09 and C-268/09, [2010] I-118679,) inter-generational fairness (Palacios de la Vila v Cortefiel Servicious SA [2007] E.C.R. 1-08353), protecting patient safety (Petersen Case C-341/08, [2010] ECR I-00047) and motivation and dynamism through the increased prospect of promotion (Donnellan v Minister for Justice [2008] IEHC 467) have been recognised as legitimate aims that may justify a compulsory retirement age. No such aims have been put forward by the Respondent but rather a vague concern as to the age profile of the Respondent was expressed. As such, the Complainant reserves the right to respond to any other aims put forward by the Respondent as justifications for the retirement age up to and including at the hearing of this action.

Recent decisions in Ireland emphasise the heavy burden on an employer seeking to show that a compulsory retirement age is objectively justified. In the recent decision of Roper v RTE ADJ-00019084, 18 December 2019, the WRC awarded the complainant the substantial sum of €100,000 being the equivalent of one year’s salary, for age discrimination.  The respondent relied on the same justification for the retirement age as in Valerie Cox, namely intergenerational fairness. The Adjudication Officer distinguished the decision in Felix Palacious de la Villa relied on by the respondent, on the basis that it concerned national employment policy. She said:

“Having examined this judgement, I find that it is concerned with “national employment policy” in a member state of the EU with a high level of unemployment and a desire to facilitate a greater degree of participation in the workforce by the unemployed. This does not reflect the circumstances of the complainant and the respondent, where her retirement resulted in the promotion of just one individual in one organisation, in a country where unemployment is relatively low. Also, in Palacios, employees who were subject to the collective agreement where required to retire at age 65 if they had ”satisfied the conditions laid down in social security legislation for entitlement to a retirement pension ….” (paragraph 22). At age 65, the complainant did not satisfy this condition”.

Similarly, the Adjudication Officer noted that similar decisions of the CEJU such as Georgiev and Fuchs and Kohler “were reached in a national context and concerned matters of national policy”. Since the case before her concerned a complainant who had occupied a unique role in the only national broadcaster in Ireland, she did not find the broad scope of those decisions applicable to the instant case.

The Adjudication Officer found that the retirement age of 65 was not objectively justified. While she accepted that intergenerational fairness had a generally broad objective applying to young and older workers, she found that the effect of the promotion of a producer and the recruitment of someone new was so confined and limited to one department that she could not accept that it was objectively justified.

The Adjudication Officer went on to find that the complainant’s compulsory retirement at 65 was disproportionate and that other options to avoid the compulsory retirement should have been considered, saying

“It is apparent to me that the ongoing occupation by the complainant of the job of producer / director was causing a sense of career stagnation in her department. It is my view that, in consultation with her, a business case could have been made for assigning her to a new, temporary assignment for a fixed term, and in this way, freeing up her job for promotion. On this point, I note that in Georgiev v Tehnicheski Universitet, which was cited for the respondent, the plaintiff was permitted to remain at work after the normal retirement date for professors which was 65, until he was 68. In Roche v Complete Bar Solutions, also referred to by Ms Bolger, Mr Roche was offered a fixed term contract for one year, but he rejected this option”.

Proportionality

Even if the Respondent could demonstrate that the compulsory retirement pursued a legitimate aim (which is denied) the Respondent must also demonstrate that the compulsory retirement age of 65 was a proportionate means of achieving the aim pursued. Even where objectives put forward have been accepted as legitimate aims capable of justifying a compulsory retirement age, the CJEU has found various compulsory retirements ages disproportionate as means to achieve these aims in cases such as Prigge v Deutsche Lufthansa Case C-447/09 [2011] ECR I-8003 and European Commission – Hungary Case C-286/12 [2013] 1 CMLR 1243.

A degree of flexibility in applying a retirement age policy has been crucial in decisions upholding retirement ages as proportionate. Thus, in Donnellan, McKechnie J emphasised the fact that the imposition of the retirement in respect of Assistant Commissioners could be individually assessed, in that a person could apply to the Commissioner for a continuance of his or her employment, and that the Commissioner was required to consider each application on a case-by-case basis. McKechnie J held at para. 122:

“Although a continuation was refused in this case, the procedure under Regulation 6(b) of the 1951 regulation services to temper the severity of what would otherwise be an absolute retirement age; thereby rendering it, in my opinion, proportionate. It cannot therefore be entirely equated with a blanket policy type position”.

Similarly, in ESB v Doyle [2013] 24 E.L.R. 34 the Equality Officer had express regard to the fact that the ESB considered an application by Mr Doyle for an extension of his employment post, although he did not meet any of the exceptional circumstances criteria as well-established within the organisation.

In the instant case, the Claimant first indicated his willingness to stay on working beyond his 65th birthday in 2017 and further again provided he did not experience any unexpected health issues. Mr M of the Respondent was aware and accepted this to be the case and was happy for the Claimant stay on. The Claimant stated this position again in 2020. This was the Claimant’s standard position and one which the Respondent was aware of even prior to the meeting of 30th August 2021. However, at that point, the Respondent (unexpectedly given its treatment of other staff and the Claimant in particular on this issue) unilaterally insisted on relying on the retirement age as provided for in the contract of employment.

As seen above, the lack of flexibility or willingness to consider extensions where the employee wished to remain in employment was fatal to the respondent’s case in Roper v RTE. In finding that the measure was disproportionate, the Adjudication Officer emphasised that “a business case could have been made for assigning her to a new, temporary assignment for a fixed term, and in this way, freeing up her job for promotion. On this point, I note that in Georgiev v Tehnicheski Universitet, which was cited for the respondent, the plaintiff was permitted to remain at work after the normal retirement date for professors which was 65, until he was 68. In Roche v Complete Bar Solutions, also referred to by Ms Bolger, Mr Roche was offered a fixed term contract for one year, but he rejected this option”.

The fact that the Claimant is not due to receive pension payments until the age of 67 is a further factor rendering the Respondent’s rigid insistence on a compulsory retirement age 65 disproportionate in all the circumstances to any aim that may be put forward by the Respondent.

The Complainant reserves the right to raise further legal arguments or submissions as required.

Loss & Compensation

The Complainant’s  employment terminated as and from 22nd September 2021.

The Claimant obtained alternative employment on 1st February 2022.

The foregoing is provided for context and the Claimant seeks an Order under Section 82(1)(d) of the Acct providing for compensation for the effects of acts of discrimination which occurred.

Conclusion

It is submitted that the Claimant was discriminated against on the basis of age by the Respondent unilaterally insisting on his retirement with cessation of his fixed term contract of employment.

The Respondent has not insisted on the retirement of Mr M who is older than the Claimant and accordingly there is no implied term of compulsory retirement.

It is therefore respectfully submitted that the Claimant is entitled to compensation for breach of the Employment Equality Acts due to discrimination on the age ground.

Supplemental submission on behalf of the Complainant – received post hearing.

INTRODUCTION

1.     The substantive case herein was heard on 8th June 2023. However, at the outset of the hearing counsel for the Claimant noted that in its original written submissions the Respondent sought to rely on certain case law relating to the obligation on the Claimant to prove a prima facie case. In doing so it stated at paragraph 5.4 of its submission that the Claimant had “provided no evidence of less favourable treatment”.

2.     The Claimant’s original submissions did not address the issue of the respective burdens of proof arising and in the circumstances his counsel sought leave to furnish these legal submissions on the issue which was granted.

3.     It is well established that once a Claimant has proven facts that establish a prima facie case of discrimination, the Respondent must then show that its actions were not discriminatory. It is the position of the Claimant that the case law discussed below sets the standard of proof relatively low for a Claimant to prove a prima facie case. Conversely, once the burden of proof has shifted to the Respondent, the Claimant submits that the standard of proof on it to show the absence of discrimination is a much higher one.

LAW

Standard of proof on the Claimant

4.     The starting point as to the burden of proof in cases alleging discrimination is contained in section 85A(1) of the Employment Equality Act, 1998 as amended (the EEA) which provides as follows:

‘Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.’

5.     In practical terms this was set out in the case of Minaguchi v Wineport Lakeshore Restaurant [DEC-E2002-020] as a requirement for a claimant to prove a prima facie case after which the burden would shift to a Respondent. The steps to establishing a prima facie case were set out in Minaguchi and can be summarised as follows:

i.               The Claimant is a person with the relevant characteristic that brings them within the discriminatory ground.

ii.              The Claimant has been subjected to specific treatment.

iii.            The treatment in question is less favourable than that experienced or that would be experienced by a person that does not share relevant discriminatory ground and characteristic.

6.     At the material time, the Claimant was a person who had reached the “normal” retirement age of the Respondent. The specific treatment in question was the refusal to allow the Claimant remain in his role of 27 years once he reached his 66th year birthday (with which his extension contract coincided). The Claimant has alleged in his original submissions that this treatment was less favourable than the Managing Director of the operation, Mr Malcom who was in or around 70 years old at the material time.

7.     The Claimant submits that the age of Mr Malcolm and his retiring at in or around 71 or 72 years of age is prima facie evidence of less favourable treatment. While the Respondent has offered an alternative motivation for events, the Labour Court made it clear in Kieran McCarthy v Cork City Council [EDA0821] that the discriminating motives of a Respondent are rarely overt. For this reason, it found that where the primary facts are proven the deciding body is entitled to infer from those facts the argument contended for. Importantly it went on to hold as follows:

‘it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts’.

8.     The Claimant submits that the facts offered at hearing mean that discrimination by virtue of his age is well within the range of inferences that can be drawn. In the circumstances it is submitted that the Claimant has met the necessary standard of proof to ground a prima facie case and that the burden to disprove discrimination shifts to the Respondent.

Standard of proof on the Respondent

1.     The Claimant submits that (subject to section 34) the standard of proof required of the Respondent is significantly higher than that required of the Claimant. Not only must it show that age played nothing more than a trivial role, but any evidence offered in that regard without independent corroboration must be treated with caution.

2.     The above was made clear from two decisions of the Labour Court.  In the case of

Niscayah LTD v Rachel McCarthy [EDA1328] it held as follows:

“Where a prima facie case is made out the onus shifts to the Respondent to prove the absence of discrimination. This requires the Respondent to show a complete dissonance between the protected characteristic relied upon … and the impugned act…alleged to constitute discrimination. In Wong v Igen Ltd & Others [2005] IRLR 258 (a decision of the Court of Appeal for England and Wales) Peter Gibson LJ pointed out that where the Respondent fails to show

3.     From Niscayah it is submitted that the onus on the Respondent to prove the absence of a discriminatory motive is a high one in that it must in effect show that it had no bearing on matters.

4.     In contrast to what is required of a Claimant, it is submitted that that manner in which a Respondent must show the absence of such a motive is equally as high. This was made clear by the Labour Court in the case of A Technology Co. v. A Worker [EDA0714] when it held that:

“Mere denials of a discrimination motive in the absence of independent corroboration, must be approached with caution”.

CONCLUSION

1.     From the above the Claimant submits that the facts proven at hearing have met the relatively low bar set to prove his prima facie case. In those circumstances he submits that the burden shifted to the Respondent.

2.     The Claimant submits that the case law above makes it clear that the burden on the Respondent is a high one in that it must in effect show that the age ground did not play any role in the decision taken not to allow the Complainant continue his employment. Furthermore, in seeking to prove such an absence the Respondent cannot rely on the subjective denial of witnesses but must have provided some independent evidence as corroboration. The Claimant submits that the Respondent did not offer any such evidence at hearing.

3.     In the circumstances the Claimant submits that the case for discrimination was made out and that the Respondent failed to disprove same as required.

Background to the claim.

The Complainant was due to retire as per the company’s normal retirement age of 65 on 22 September 2020.

On 19th June 2020 the Complainant sent an email addressed to Mr K (Sales and Marketing Manager) and Mr M (Managing Director) in which he requested to work beyond the normal retirement age of 65.

This request was facilitated by the Respondent, and the Complainant was issued with a 1 year post-retirement fixed term contract on 8 September 2020, to take effect on 23 September 2020. Within said contract, it was specified that the fixed term would expire on 22 September 2021. In signing this fixed term contract, the Complainant confirmed “acceptance of employment on the terms and conditions set out in …[the]… contract and in the following/accompanying appendices”.

On 30 August 2021, the Complainant had a conversation with Mr M in which he stated that he wished to work beyond the expiry of the post-retirement fixed term contract. Mr M acknowledged the Complainant’s desire to continue working but explained that this could not be justified due to the skewed age profile of the workforce.

On 22 September 2021, the Complainant’s employment was terminated as per the agreed terms of his contract.

Relevant Legislation

Many of the points raised by the Respondent were raised by the Complainant.

Respondent’s Arguments:

Prima Facie Case of Discrimination & the Burden of Proof

It is the well-established practice of the Workplace Relations Commission and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited.

The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Teresa Mitchell DEE011, [2001] ELR 201 where the Court stated:

“The first requirement is that the Complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a Complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

In Margetts v Graham Anthony & Company Limited EDA038 the evidential burden which must be discharged by the complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows:

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred”.

Direct discrimination consists of two elements. The first is the less favourable treatment of the Complainant and the second is the existence of age grounds for such treatment. Both elements must be satisfied for a claim of discrimination on the ground of age to succeed. It is respectfully submitted by the Respondent that the Complainant has provided no evidence of less favourable treatment. The Complainant’s allegations are grounded on incorrect facts and are unfounded. The Respondent submits that it is only when the Complainant has discharged this burden to the satisfaction of the Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised. It is the Respondent’s position that the Complainant has singly failed to establish a prima facie case of discrimination and as such the burden does not shift to the Respondent in this instance.

In Melbury Developments & Arturs Valpetters EDA/0917 the Labour Court while examining the circumstances in which the probative burden of proof operates stated that a Complainant

“…must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”. It added that “…the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

Notwithstanding that the particular circumstances of each case are different; the Respondent submits that it is only when the Complainant has discharged this burden to the satisfaction of an Adjudicating Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised.

Justification of the Normal Retirement Age

Without prejudice to the above, the Respondent relies upon the protection afforded to it under section 34(4) of the Employment Equality Act 1998-2015 to fix a mandatory retirement age that is objectively justified, and the means of achieving the aims of age diversity and intergenerational fairness are appropriate and necessary. The Respondent asserts that it has met these requirements in its objective justifications as set out above, and that the means of achieving these aims are proportionate in the circumstances.

In Felix Palacios De La Villa v Cortefiel Servicios SA441/05 the European Court of Justice held that a mandatory retirement age, which was used to absorb high unemployment and to promote better distribution of work among generations was an objectively justified aim achieved through proportionate means.

The question posed by the Spanish referring Court to the European Court of Justice was

“whether the prohibition of any discrimination based on age in employment and occupation must be interpreted as meaning that it precludes national legislation such as that in the main proceedings, pursuant to which compulsory retirement clauses contained in collective agreements are regarded as lawful, where such clauses provide as sole requirements that workers must have reached retirement age, set at 65 years by the national legislation, and must fulfil the other social security conditions for entitlement to draw a contributory retirement pension”. The court concluded in its statement that the answer to this question;

“must be that the prohibition on any discrimination on grounds of age, as implemented by Directive 2000/78 must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, pursuant to which compulsory retirement clauses contained in collective agreements are lawful where such clauses provide as sole requirements that workers must have reached retirement age, set at 65 by national law, and must have fulfilled the conditions set out in the social security legislation for entitlement to a retirement pension under their contribution regime, where

1.       The measure, although based on age, is objectively and reasonably justified in the context of national law by a legitimate aim relating to employment policy and the labour market, and

2.       It is not apparent that the means put in place to achieve that aim of public interest are inappropriate and unnecessary for the purpose”.

The respondent maintains that a normal retirement age is objectively justified for the purposes of achieving the legitimate aim of promoting a balanced age structure within the organisation. 70% of the Respondent’s sales staff are due to retire within the coming 10 years. As such, it is imperative from the Respondent’s perspective that it works proactively to avoid a retirement cliff edge by both bringing in new employees to the organisation, as well as providing opportunities for existing staff to move up within the company. These points were strongly emphasised to the Complainant at a meeting in 2020, prior to the granting to him by the Respondent of a 1 year post retirement fixed term contract.

The Respondent would point to S.I. 600/2017 WRC Code of Practice on Longer Working in which it stated:

Essentially the law is now that compulsory retirement ages set by employers must be capable of objective justification both by the existence of a legitimate aim and evidence that the means of achieving that aim is appropriate and necessary. Examples of what constitutes a legitimate aim by an employer may include:

3.       Intergenerational fairness (allowing younger workers to progress);

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

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

6.       Creation of a balanced age structure in the workforce;

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

8.       Succession planning

The Respondent would argue that its normal retirement age of 65 is objectively justified to achieve the majority of the legitimate aims as stated above, namely intergenerational fairness, motivation and dynamism through the increased prospect of promotion, creation of a balanced age structure in the workforce and succession planning.

In Paul Doyle v ESB International DEC-E2012-086 the Equality Officer upheld the objective justification for the aim of ensuring retention, motivation and dynamism among current employees and the means of achieving the aim through the fixing of a mandatory retirement age was appropriate and necessary and stated;

“I am satisfied that the respondent wishes to establish an age structure among its younger and older employees in order to encourage the recruitment and promotion of young people and to facilitate good personnel management. I am therefore satisfied that the respondent has established a legitimate employment policy with a legitimate aim for the reason why, at the latest, employees with the respondent must retire at 65 years of age”.

Application of the Normal Retirement Age

The Respondent maintains that the retirement age of 65 was an express term of the Complainant’s contract. Section 7 of the Complainant’s original contract of employment stated the following:

“Your normal retirement date is the attainment of your sixty-fifth birthday”.

The Respondent would argue that this express term has been legitimised through the regular retirement of staff at age 65. In McLoughlin & Sons Hardware Limited v Pauling Butler EDA232 the Labour Court found the following:

“… the clear evidence before the Court is that it was the Respondent’s practice to retire employees at that age. Furthermore, there was evidence before the Court of the Respondent exercising a degree of flexibility in the manner in which it applied that practice such as in the circumstances that applied to SOM and LR. Likewise, in the Complainant’s case – the Company acceded to her request to extend her period of work for six months beyond her normal retirement age”.

In Eargail Eisc Teoranta v Richard Leet EDA1513 the Labour Court stated:

“As a matter of 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”.

The Respondent would strongly argue that the Complainant’s retirement age was expressly stated in his contract as a clear condition of employment as being 65. This was supported by a clear practice that has been established by the Respondent in retiring employees at age 65, to the extent that the Complainant should have had a reasonable expectation that he would have to retire at 65. The Respondent would also maintain that it has exercised a degree of flexibility in allowing some employees upon request (including the Complainant) to work for an additional year on a post-retirement fixed term contract.

The Complainant has made the point that Mr M was allowed to work beyond the age of 65 without retiring. Mr M retired recently from the Respondent company at age 71. The Complainant argues that this fact undermines the validity of the Respondent’s practice for employees to retire at age 65. However, the Respondent strongly disputes this and would point to the fact that Mr M extended employment beyond age 65 constituted an exceptional measure taken by the Respondent. Mr M’s second in command Mr K (in his role as Sales & Marketing Manager) was seconded to the UK to run a business controlled by the Respondent’s shareholders. This secondment was intended to be for one year but had to remain in place for a period of over five years. Mr M’s contract of employment was amended accordingly to allow him to continue in his role as Manager and Director of the Respondent company. This was not a situation which was planned and was one which, for business reasons, had to be dealt with on an exceptional basis.

Such a practice is not without precedent. The Respondent would again cite the aforementioned Labour Court decision in McLoughlin & Sons Hardware Limited v Pauline Butler EDA232. In a claim of gender discrimination by the Complainant in this case, on the basis that two male comparators were allowed to work beyond the mandatory retirement age, the Court accepted the Respondent’s explanation as to how this arose:

“The Respondent’s position, as articulated to the Court by Mr Kieran McLoughlin, is that eth Respondent has operated a policy of mandatory retirement for all employees, regardless of gender, on reaching age sixty-five. (This will be considered in detail below in the context of the Complainant’s claim of age discrimination). Mr McLoughlin accepted that two of the three male comparators named by the Complainant worked beyond the mandatory retirement age. However, he gave a clear and cogent explanation as to why this came about in both cases. In circumstances where the Complainant requested an extension of her employment for a period of six months beyond her sixty fifth birthday and the Respondent indicated it would accede to that request, the Court finds that the claim of less favourable treatment on the grounds of gender is not well-founded”.

The Respondent respectfully asks that the exceptional circumstances which led to Mr M’s extended employment beyond age 65 be considered and accepted as valid. Neither before nor since has such a practice been implemented, which the Respondent would argue underscores the exceptional nature the particular situation. AS per the aforementioned case, it is not without precedent for certain employees to be employed beyond the mandatory retirement age of a company on an exceptional basis, nor is it without precedent for the Labour Court to accept the validity of same.

Request to work beyond normal retirement age

Without prejudice to any of the above arguments, the Respondent notes that it in good faith acceded to the Complainant’s request to work beyond age 65 by issuing him with a post-retirement fixed term contract. The Respondent submits that the Complainant accepted the terms and conditions contained within the post-retirement fixed term contract provided to him by the Respondent on his reaching age 65. Paragraph 1 (c) of said contract specifies that the period of the validity of the contract is “23rd September 2020 until 22nd September 2021”.

The first instance where the Complainant made the Respondent aware of his desire to work beyond the expiry of the post-retirement fixed term contract was in or around 30 August 2021, less than a month before the expiry of the contract on 22 September 2021. The Respondent submits that this was an unreasonably short timeframe in which the Respondent could be expected to fully consider the Complainant’s request. The Respondent would refer again to S.I. 600/2017 Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017 in which it states the following regarding requests to work beyond a specified retirement age:

In dealing with a request to work longer it is recommended that the parties engage as follows:

9.       The employee should make such a request in writing no less than three months from the intended retirement date to be followed up with a meeting between the employer and employee. This meeting gives both the employee an opportunity to advance the case and allowing the employer to consider it. It is important that the employee is listened to and that any decision made is on fair and objective grounds.

10.   The employer’s decision should be communicated to the employee as early as practical following the meeting.

The Respondent would submit that it was not notified of the Complainant’s desire to work beyond the termination of the post-retirement fixed term contract within a reasonable timeframe. Nevertheless, it was made clear to the Complainant that this request would not be acceded to in order for the Company to pursue a more balanced age structure within the workforce. Had the Claimant made clear his desire to request an extension to the post-retirement fixed term contract in a reasonable timeframe, the Respondent would have been in a better position to further explain the need to pursue a more balanced age structure and the nature of its refusal of the request. In any case, the Respondent maintains that its justification for this refusal was valid and that there should have been no reason for the employee to expect that any extension would be made to the post-retirement fixed term contract he had been issued.

Conclusion

The burden of proof rests with the Complainant to show that he was discriminated against on the grounds of age. Should the Complainant shift this burden, it is the position of the Respondent that a normal retirement age of 65 is well established in the organisation both as a common practice and an express term of the Complainant’s contract.

The Respondent respectfully submits that the continued employment of a senior employee to age 71 constituted an exceptional measure and should not be regarded as invalidating the company’s normal retirement age, as supported by case law.

The Respondent maintains that the termination of the Complainant’s employment occurred on the basis of the mutually agreed period of validity contained within the post-retirement fixed term contract. The Respondent asserts that its refusal to grant an extension to this contract on the grounds of the pursuit of a more balanced age structure in the organisation constitutes a legitimate aim and is crucial for the future viability of the business.

The Respondent reserves the right to submit further arguments and evidence at any stage during the course of this investigation.

Post hearing submission on behalf of the Respondent.

1.       The substantive case in relation to this matter was heard on the 8 June 2023, at which time the Claimant, having failed to address the respective burdens of proof, sought leave to furnish legal submissions on the issue. The application was acceded to. The Adjudicator indicated that the Respondent would be afforded an opportunity to respond to the Claimant’s supplemental submission and that no further submissions would be accepted after that.

2.       In their original submission the Respondent clearly outlined its justification for a mandatory retirement age of 65. It is submitted that it is evident that the Claimant did in fact retire on reaching his 65th birthday on 22/9/2020. He made no further contributions to the company pension scheme after that date. Just prior to his retirement he made a written application for a one-year post retirement fixed term contract. This request was granted.

3.       The fact that he retired at the age of 65yrs is clearly stated in the Claimant’s own original submission under the section titled Basis for Claim at paragraph 3.1 where the Claimant submits that ‘the termination of his employment by the Respondent by his having reached the age of 65 constitutes discrimination…..’ and paragraph 3.2 where it is submitted that ‘the decision to enforce the retirement provisions constituted discriminatory conduct against the Claimant on the basis of age. At the time of the discriminatory treatment complained of the Claimant was 65yrs of age’.

4.       The Claimant’s retirement at the age of 65yrs was further acknowledged by the Claimant himself when he signed a one-year post retirement (emphasis added) fixed term contract.

5.       Whilst it is alleged in the Claimant’s original submission that his retirement at the age of 65yrs was discriminatory it is wholly apparent that such an allegation is clearly out of time as he attained the age of 65yrs on 22/9/2020 and the complaints being examined in this instance were lodged in the Workplace Relations Commission on 15/2/2022, seventeen months after the retirement took place.

6.       In his original WRC complaint form the Claimant cites 22/9/2021 as the date of the most recent discrimination. This was, in effect, the end date of his one-year post retirement fixed term contract.

Burden of Proof

1.       The burden of proof required in this instance requires the Claimant to demonstrate that the Respondent’s decision not to issue him with a further post-retirement fixed term contract was discriminatory.

2.       During the course of the hearing sworn evidence was provided by the named Comparator, Mr. Robert Malcom, to the effect that he had been provided with a contract of infinite duration at the behest of the shareholders pending the arrival of his replacement, Mr. Declan Kerins. The specific date of Mr. Kerins arrival was unknown at the time. Following the arrival of Mr. Kerins Mr Malcom chose to stay on in the role of MD as was his right. It is submitted that a relevant comparator to the Claimant under the age ground would be an employee of the Respondent of a different age to the Complainant who was/is employed on a post-retirement fixed term contract when they are over the mandatory age of retirement. As Mr. Malcom was on a contract of infinite duration it is submitted that he does not fulfil the criteria of a suitable comparator.

3.       Evidence was provided with regard two employees who, like the Claimant, were employed as sales reps. They also availed of one-year post-retirement fixed term contracts following their respective retirements. Neither received a further fixed term contract on the expiration of their one-year post retirement fixed term contract. Sworn testimony was provided to the effect that no ex-employee who received a one-year post- retirement fixed term contract has ever been provided with a further post-retirement fixed term contract.

Case Law outlined in Claimant’s Supplemental Submission

1.       The Claimant cites the specific exceptions from the general rules prohibiting discrimination outlined in both the Framework Directive and the EEA. In particular they cite Article 6(1) of the Framework Directive which permits exceptions to the rule where they are ‘objectively 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’. Felix Palacios de la Villa v Cortefiel Servicios SA Case C-411/05 [2007].

2.       Section 34(4) of the Equality Act has been amended by the Employment Equality Act 2015 S.10 and in effect puts on a statutory basis what had become the interpreted case law in practice and what was considered to be in line with the European Directive. This section is based on Article 6 of the Equal Treatment Framework Directive which allows Member States to provide that differences of treatment on grounds of age are not discriminatory if, under national law, they are objectively justified by a legitimate aim, which may include employment policy and labour market and vocational training objectives, provided that the means of achieving that aim are appropriate and necessary.

3.       As stated in the Respondent’s original submission the Respondent maintains that a normal retirement age is objectively justified for the purposes of achieving the legitimate aim of promoting a balanced age structure within the organisation. 70% of the Respondent’s sales staff are due to retire within the coming 10 years. As such, it is imperative from the Respondent’s perspective that it works proactively to avoid a retirement cliff edge by both bringing in new employees to the organisation, as well as by providing opportunities for existing staff to move up within the company. Evidence was provided that these concerns were previously raised with the Respondent’s senior management team. These points were strongly emphasised to the Complainant at a meeting in 2020, prior to the granting to him by the Respondent of a 1-year post retirement fixed term contract just prior to his retirement.

4.       As previously submitted, any allegation by the Claimant that the Respondent’s mandatory retirement age of 65yrs is discriminatory and that he was forced to retire at 65yrs are manifestly out of time.

                                                               i.      The Claimant cites the following from Minaguchi v Wineport Lakeshore Restaurant [DEC- E2002-020] as a requirement for a claimant to prove a prima facie case after which the burden would shift to a Respondent. The steps can be summarised as follows,

                                                             ii.      The Claimant is a person with the relevant characteristic that brings them within the discriminatory ground.

                                                           iii.      The Claimant has been subjected to specific treatment.

                                                           iv.      The treatment in question is less favourable than that experienced or that would be experienced by a person that does not share the relevant discriminatory ground

5.       At paragraph 6 of the Claimant’s supplemental submission it is stated, inter alia, that,

‘at the material time the Claimant was a person who had reached the ‘normal’ retirement age of the Respondent’.

It is submitted that the Claimant was 66yrs of age and had already reached the Respondent’s ‘normal’ retirement age of 65yrs one year previously when he retired. It is submitted that the one-year post retirement fixed term contract clearly stated that it was for a period of twelve months and contained no indication that it would or could be extended.

6.       On completion of this twelve-month period the Claimant’s post-retirement fixed term contract came to a natural end and was not renewed. The decision not to renew the contract was in line with the precedent already set by the Respondent in respect of one year post retirement fixed term contracts. It is submitted that when the Claimant expressly agreed to the terms and conditions of the contract he acknowledged in writing that the retention was for a maximum period of one year from the date of his 65th birthday.

7.       The Claimant cites Kieran McCarthy v Cork City Council [EDA0821] indicating, inter alia,

‘it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts’.

The Claimant submits that ‘the facts offered at the hearing mean that discrimination by virtue of his age is well within the range of inferences that can be drawn.

8.       The Claimant has also cited A Technology Company -and- A Worker EDA0714 indicating that the onus on the Respondent to prove the absence of a discriminatory motive is a high one stating ‘Mere denials of a discrimination motive in the absence of independent corroboration, must be approached with caution’

9.    With regard to paragraphs 3.7 and 3.8 above the Respondent submits that as per the sworn testimony provided at the hearing there had been two previous instances of employees being provided with post-retirement fixed term contracts. As with the Claimant, both were employed as sales reps, and both availed of one-year post-retirement fixed term contracts. The employment of the two individuals ended when their fixed term contracts came to a natural end after oner year. Whilst the Claimant has indicated that he wished to work on indefinitely it is submitted that at no time was an undertaking in this regard ever provided to him. Furthermore, the Claimant has provided no evidence that he ever made a written application for a further post-retirement fixed term contract. No ex-employee who received a one-year post-retirement fixed term contract has ever been provided with a further fixed term contract by the Respondent.

10. The Claimant, who the Respondent confirmed was a loyal and trusted employee was treated no differently than his two peers.

Legal Argument

1.       Section 85 A (1) of the Employment Equality Acts states,

‘Where in any proceedings facts are established by or on behalf of a claimant 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’.

2.       In Peter O’Loughlin and the Health Service Executive ADJ-00026333 where the Claimant had availed of a one-year post retirement fixed term contract and subsequently alleged ‘enforced retirement’ …. Which he alleged constituted an act of discrimination on the grounds of age in contravention of the provisions of the Employment Equality Act, 1998 – 2015. The Adjudicator stated that ‘the Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of ‘sufficient significance’ before a prima facie case is established and the burden of proof shifts to the Respondent’.

The Adjudicator continued,

In particular, the Labour Court elaborated on the interpretation of Section 85A(1) in Melbury v. Valpeters (EDA/ 0917) when stating that a complainant “must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon all that is required is that they be of sufficient significance to raise a presumption of discrimination however, there must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be evaluated to a factual basis upon which an inference of discrimination can be drawn”. The Court went on to state that Section 85A (1): "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".

3.       As in this case the Complainant had originally signed a Contract of Employment which clearly outlined a retirement age of 65yrs.

4.       As previously stated the Claimant indicated on his original submission that his retirement took effect on his 65th birthday. He then entered into a one-year post retirement fixed term contract.

5.       In the O’Loughlin case the Adjudicator found that,

‘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 Adjudicator found that the Complainant failed to establish a prima facie case of discrimination and the Respondent’s objection in relation to burden of proof was well founded.

Conclusion

The allegation that the Claimant ‘was forced into retirement’ is not only manifestly out of time but is also not well founded. Following his retirement on 22/9/2020 at the age of 65yrs (as outlined in the Claimant’s original own submission) he freely entered into a one-year post retirement fixed term contract. In the subsequent period the Claimant at no time raised concerns about his retirement or the manner in which it was implemented. As his 65th birthday took place on 22/9/2020 and the complaint being enquired into was lodged in the Workplace Relations Commission on 15/2/2022 it is evident that any allegation by the Claimant of enforced retirement at 65yrs of age is statute barred.

The Respondent maintains that the termination of the Complainant’s employment with the Respondent occurred one year after he had retired on the basis of the mutually agreed period of validity contained within the post-retirement fixed term contract.

Accordingly, it is requested that the Adjudicator find that the Claimant has failed to establish a prima facie case of discrimination on the basis of age in this instance.

There is no mandatory retirement age in Ireland.

The fact that an increasing number of people in Ireland now want to work beyond the State pension age is causing huge issues from an employment law perspective. This situation is being exacerbated by people having the option, from January 2024, to continue working up until the age of 70 in return for a higher State pension.

Section 34(4) of the Employment Equality Act establishes the statutory derogation providing for the fixing of a retirement age, so long as it is: objectively and reasonably justified by a legitimate aim; and the means of achieving that aim are appropriate and necessary.

In the instant case I note the Complainant commenced employment with the Respondent on 25th April 1994. A contract of employment signed by both the Complainant and the Respondent in April 2010. Clause 7 of said contract states as follows:

“Your normal retirement date is the attainment of your sixty-fifth birthday”.

There is no ambiguity in this clause.

On 19th June 2020 the Complainant wrote to his line manager and copied the Managing Director. This letter read as follows:

Hi Declan / Robin,

Unfortunately the time has almost arrived which will see my contract with Amari Ireland come to an end on 22nd September this year. However, never being one to be idle or ready for the “pipe and slippers” as they say, I earnestly request to continue to in Amari’s employment after the aforementioned date. I hope you can look favourably at this request.

Best Regards,

Again, there is no ambiguity contained within the letter from the Complainant.

In reply to this letter the Respondent wrote on 8th September 2020 offering the Complainant a new Fixed Term Contract for a period of one year. It is noted that this contract is headed “Post Retirement Fixed Term Contract of Employment”. The Complainant accepted this contract and signed it on 18th September 2020.

There was no indication from the Complainant that he objected to this contract and did not utilise the Respondent’s Grievance Procedure at any time before the expiry of this one-year contract.

The representative for the Respondent has raised the issue of time limits:

Whilst it is alleged in the Claimant’s original submission that his retirement at the age of 65yrs was discriminatory it is wholly apparent that such an allegation is clearly out of time as he attained the age of 65yrs on 22/9/2020 and the complaints being examined in this instance were lodged in the Workplace Relations Commission on 15/2/2022, seventeen months after the retirement took place.

This point cannot be overlooked.

In coming to a conclusion I believe that at all times the Complainant was aware that he was due to retire on his 22/09/2020, he was then offered a post retirement one year fixed term contract, he accepted this contract and did not utilise the respondent’s grievance procedure until after the expiry of this fixed term contract.

I do not believe that any discrimination has taken place. The complaint as presented is not well founded.

I do not believe that any discrimination has taken place. The complaint as presented is not well founded.

Employment Equality Act, 1998.