Complainant

Respondent

Parties

Gerry  Whyte

Kilkenny County Council

Representatives

SIPTU

Local Government Management Agency, (LGMA)

Act

Complaint Reference No.

Date of Receipt

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

CA-00054504-001

16/01/2023

The complainant is a Retained Firefighter and has been employed by the respondent since 2005. He receives an annual retainer allowance and is paid for each callout. Due to occupational health advice, the respondent decided to stand him down on 22nd July 2022. After receiving further occupational health advice, the respondent decided he could resume duty on December 6th, 2022. During the twenty-week absence, he received the retainer allowance although was not compensated for lost callouts. Other colleagues, over 55 years of age, when stood down were paid for average lost callouts. The complainant claims that he was discriminated against on age grounds arising from the fact that he is under 55 years of age and was not compensated for average callouts lost. The complainant was 52 years of age at the time of making the complaint to the WRC.

The respondent denies there has been discrimination on age grounds. The respondent representative outlined that there was an agreement in 2003 arising from the ‘Retained Firefighters Review of Retirement Age- Report of Expert Group’ which resulted in the more favourably arrangements which apply to those approaching retirement. The respondent submits the different arrangements arose from this agreement when the retirement age extended beyond 55 years of age subject to passing a medical.

The complainant’s representative summarised the case of age discrimination as per the detailed submission. He called one witness, the complainant, to give evidence.

Summary of Complainant’s Evidence

Mr Whyte received a phone call from the Senior Assistant Chief Fire Officer, Frank Dunne on 22nd July 2022. He was informed of results from a medical assessment on 21st June 2022 and he was to be stood down. He was asked to attend a meeting that Thursday at 4pm. At the meeting, he received a letter which he read immediately. It stated he was stood down from the Friday evening. He said this was difficult for him as he could not attend scheduled training with colleagues that Friday. He had to inform colleagues that he was stood down.

It was a tough time as he had almost twenty years-service and due to the nature of the community service, he knew it would become widely known that he was stood down. During his absence, he received the retainer, although unlike older colleagues he was not compensated for lost callouts. He confirmed that he was re-instated in early December 2022.

When initially stood down, he was informed by management that another medical could be arranged, at his request. He took immediate active steps by attending his doctor and later arranged for an independent fitness test which cost €500. This test confirmed good fitness for his age. His loss of callouts was estimated at €7,500 to €8,000 over the twenty week absence.

He knew of five colleagues over 55 years of age who were compensated for lost callouts when they were stood down.

Under cross-examination, the complainant was asked if he knew why these older colleagues were compensated for callouts. As he was not aware of all agreements across the fire service, it was put to him that evidence would follow of an agreement arising from the expert group report on those approaching retirement. It was put to him that this was a positive action measure for those facing retirement if they could not pass the medical.

Closing Submission

The complainant’s representative outlined that the practice of making average payments to those over 55 years of age and not treating the complainant the same was a discriminatory act based on age. It was open to management to apply the same treatment as those over 55 years of age, yet they decided not to do this. The complainant’s representative concluded that appropriate redress should be granted in the circumstances.

The respondent representative relies on the submissions made and called one witness. He submitted that the difference in treatment arose from the expert review group. It was a positive measure introduced when the maximum age extended from 55 to 58 years of age back in 2003. The history of the dispute on extending the mandatory retirement age was outlined.

He submitted that the Equality Act allowed for positive action measures. He submitted, the difference in treatment between the two categories was permitted under the Act. It was outlined that national discussions are ongoing on the application of a revised sick pay scheme for Retained Firefighters in line with the public service sick pay scheme.

Summary of Evidence from Mr Dunne, Senior Assistant Chief Fire Officer

Mr Dunne gave evidence of the circumstances under which the complainant was stood down. He said the complainant received his retainer, and those under 55 years of age do not receive average lost callouts. His understanding is this ensures those over 55 years of age would receive payments up to their retirement date. He outlined that it was a national agreement which applied to all Retained Firefighters.

Under cross-examination, he accepted that there was a delay from the initial medical to the date of stand-down. He explained that this was down to due diligence in ensuring correct procedures were followed. He was asked whether consideration was given to apply the same terms of the agreement to the complainant. He confirmed the default position was to pay the retainer only for those under 55 years of age, when absent, as per the national agreement. He did not accept that he had discretion on this.

Closing Submission

The respondent representative accepted a difference in treatment between staff of certain ages though explained that this arises from a specific agreement for those approaching retirement. This agreement applies nationally and is currently under review with ongoing discussions with unions. The respondent representative explained the link back to the report of the expert group which extended the retirement age. Those under 55 years of age receive the retainer only when stood down as the payment of average earnings is specifically confined to those approaching retirement.

The Law

Section 6 of the Employment Equality Act, 1998, states:

“6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

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

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.]

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

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

Direct discrimination on age grounds is not unlawful is certain instances as per the Act. The following is the relevant parts of the Act.

Positive action permitted.

33.—Nothing in this Part or Part II shall render unlawful measures maintained or adopted with a view to ensuring full equality in practice between employees, being measures—

(a) to prevent or compensate for disadvantages linked to any of the discriminatory grounds (other than the gender ground),

(b) to protect the health or safety at work of persons with a disability, or

(c) to create or maintain facilities for safeguarding or promoting the integration of such persons into the working environment.

Savings and exceptions related to the family, age or disability.

34.—(3) In an occupational benefits scheme it shall not constitute discrimination on the age ground for an employer—

(a) to fix ages for admission to such a scheme or for entitlement to benefits under it,

(b) to fix different such ages for all employees or a category of employees,

(c) to use, in the context of such a scheme, age criteria in actuarial calculations, or

(d) to provide different rates of severance payment for different employees or groups or categories of employees, being rates based on or taking into account the period between the age of an employee on leaving the employment and his or her compulsory retirement age,

provided that that does not constitute discrimination on the gender ground.

(3A) In subsection (3)—

"occupational benefits scheme" includes any scheme (whether statutory or non-statutory) providing for benefits to employees or any category of employees on their becoming ill, incapacitated or redundant but does not include any occupational pension scheme providing for pensions, gratuities or other allowances payable on retirement or death;

"severance payment" means a sum paid voluntarily by an employer to an employee otherwise than as pay when the employee leaves the employment.

(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.

(5) Without prejudice to the generality of subsection (3), it shall not constitute discrimination on the age ground to set, in relation to any job, a maximum age for recruitment which takes account of—

(a) any cost or period of time involved in training a recruit to a standard at which the recruit will be effective in that job, and

(b) the need for there to be a reasonable period of time prior to retirement age during which the recruit will be effective in that job.

(6) Where immediately before the relevant day, arrangements are in force in any employment for age-related remuneration, it shall be a sufficient compliance with this Part and Part II if those arrangements are brought to an end within the period of 3 years beginning on the relevant day.

(7) It shall not constitute discrimination on the age ground for an employer to provide for different persons—

(a) different rates of remuneration, or

(b) different terms and conditions of employment,

if the difference is based on their relative seniority (or length of service) in a particular post or employment.

Findings

This complaint arises pursuant to the Employment Equality Acts that the complainant was discriminated against because he was younger than 55 years of age and could not benefit from a payment (compensation for callouts) made to colleagues over 55 years of age.

Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (1) Where in any proceedings, facts are established by or on behalf of a Complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.”

The effect of s.85A above is to place the initial burden of proof on the complainant to show that a prima facie case of age discrimination exists. The complainant has discharged this initial burden as he has been treated differently to older colleagues when both categories of staff have been stood down. The burden of proof now falls on the respondent to prove that there has been no discrimination.

Respondent Position

The respondent representative accepts there is a difference in treatment between the two categories of staff. He submits that this is based on an existing agreement and is a positive action related to the retirement age of Retained Firefighters.

The respondent representative submits the comparators are not like for like. Those over 55 years of age face mandatory retirement unless they can pass a medical. The complainant is not in this predicament. The complainant is not compensated for average callouts when stood down as he is under 55 years of age. The compulsory retirement age for Retained Firefighters was 55 years of age back in 2003. This extended to 58 years of age, subject to a medical each year. If not passed, then mandatory retirement follows, subject to a medical appeal process, if activated.

The respondent contends that the continued payment of average callouts ensures this category do not suffer a detriment in earnings prior to retirement. This measure is a holding position and allows those in the over 55 category to continue in employment, if fit to do so. The respondent submits that this is a positive action and relies on section 33 of the Act. The complainant is not in the same predicament as he is under 55 years of age. There is no pending mandatory retirement issue for the complainant.

Positive Action

Section 33 of the Act, as above, sets out three conditions under which positive action can be taken-

 (a) to prevent or compensate for disadvantages linked to any of the discriminatory grounds (other than the gender ground),

(b) to protect the health or safety at work of persons with a disability, or

(c) to create or maintain facilities for safeguarding or promoting the integration of such persons into the working environment.

Section 34 also permits exceptions so that different treatment on age is not considered unlawful. These include occupational benefit schemes which are defined in the Act as including statutory and non-statutory schemes. The respondent is relying on an agreement from the ‘Retained Firefighters Review of Retirement Age- Report of Expert Group’ which continues compensation for callouts for those over 55 years of age pending a decision on retirement.

On examination of the agreement, it is specific to those over 55 years of age who face mandatory retirement. The issues at play for those under 55 years of age are different. Effectively, from 55 years of age onwards, there is a specific process which allows for continued employment or mandatory retirement depending on the medical. The procedures for those who are absent and under 55 years of age are not as prescriptive, as retirement is not an operating factor.

I am satisfied that the respondent has proved that the comparator is not like for like, particularly given that mandatory retirement can only become operative from 55 years of age. This retirement factor is not operative for the complainant who is under 55 years of age.

Notwithstanding, this difference, section 33 & 34 of the Act permit positive actions and exceptions in certain situations. From a reading of the sections in full, I am satisfied that the intention of the Oireachtas was to legislate for situations such as this. This ensures earnings are protected, pending a decision on retirement. I am satisfied that the difference in treatment is saved by section 33. I find section 33 (a) (b) and (c) as referenced above, as being relevant to the circumstances of this claim.

Section 34 (3) is also engaged as the extension of a retirement age is also at issue. As non-statutory schemes are also included in the definition, this brings into play the collective agreement reached on extending the retirement age.

I am also persuaded by Article 6 (1) of Council Directive 2000/78 which provides-

“…Member States may provide that difference 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.”

Bolger, Bruton, Kimber in Employment Law 2nd Edition, 2022, at 8.17 state-

‘There is recognition that a person, due to their age, may require different treatment in order to ensure equal treatment, and thus positive measures are permitted. Article 7 provides expressly that:

“With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to any of the grounds referred to in Article 1.”

For the reasons outlined, I am satisfied that no unlawful age discrimination arises. I find the complainant has not been discriminated against on age grounds. I decide the complaint is not well founded.

I find the complainant has not been discriminated against on age grounds. I decide the complaint is not well founded.

Age discrimination, Positive Action