Complainant

Respondent

Parties

Nigel  Heafey

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-00056450-001

03/05/2023

The complainant is a Driver Mechanic in the Retained Fire Service and has been employed by the respondent since November 2000. He is paid an annual retainer and paid separately for callouts. The respondent decided to stand down the complainant from 1st December 2022 due to occupational health advice. Over this absence and to date, he was paid the retainer allowance although was not paid for lost callouts. Other colleagues, over 55 years of age, when stood down were paid for lost callouts. The complainant claims the respondent is discriminating against him on age grounds arising from the fact that he is a younger worker under 55 years of age who is not compensated for lost callouts.

The respondent denies that the complainant has been discriminated against on age grounds. The respondent relies on an agreement in 2003 arising from the ‘Retained Firefighters Review of Retirement Age- Report of Expert Group’. This agreement resulted in those over 55 years of age being compensated for callouts pending a decision on retirement or continued service.

Summary of Complainant’s Evidence

Mr Heafey gave evidence of how he was informed that he was stood down from 1st December 2022. He received a phone call from Frank Dunne who informed him that he was being stood down. He was also informed that he could avail of another medical over the next six months.  This had a severe financial impact on him as he was only paid the retainer allowance and lost earnings for training, school awareness and callouts. He outlined that this was financially stressful for him and his family.

He said he was 49 years of age when stood down and he is aware that older colleagues who were stood down were compensated for callouts. This issue was raised by his union with management and was not resolved.

Under cross-examination by the respondent representative, he clarified that this was the first time he was stood down. He was asked if he was aware of the existing agreement for those over 55 years of age who receive compensation for callouts. As he was not aware of all agreements in place, the respondent representative outlined that evidence would be given of the existing agreement which affords positive treatment to those over 55 years of age.

Closing Submission

The complainant representative outlined that the respondent could have decided to treat staff in similar circumstances the same. It was open to the respondent to grant compensation for lost callouts to the complainant. The decision not to do this was discriminatory treatment on age grounds. He made a verbal submission on the relevant positive actions and exemptions in the Act relied upon by the respondent representative.

The respondent representative outlined that the difference in treatment of those over 55 years of age was a positive action for those approaching retirement and who may face mandatory retirement. He outlined the history of the agreement in 2003. This included a Labour Court intervention and the establishment of an independent review group to examine the appropriate age of retirement for Retained Firefighters.

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

Mr Dunne gave evidence of the circumstances under which Mr Heafey was stood down. Arising from a medical report, he rang Mr Heafey to arrange to meet him. As he declined to meet, he sent a letter explaining the circumstances under which he was being stood down. He said Mr Heafey later attended a further medical on 23rd January 2024, and had refused to attend two previous appointments.

He outlined the basis of the decision to pay the retainer only with no compensation for lost callouts. He said this was based on the agreement in place that only staff over 55 years of age are compensated on average previous earnings, when stood down.

Under cross-examination by the complainant’s representative, he was asked whether he was aware that the complainant did not attend the two later appointments due to union advice. He was asked why the more favourable terms were not applied to the complainant when the circumstances of being stood down were similar to older colleagues. He replied that decisions were made based on the agreement in place. He did not have authority to apply these terms to those under 55 years of age.

Closing Submission

The respondent is relying on existing agreements in place which have a positive benefit to those over 55 years of age approaching retirement. This positive treatment of older staff is permitted under the Act. The respondent representative made a verbal submission on the sections within the Act that allow for positive treatment.

He concluded that the arrangements at issue have been in place for over 21 years and are contained in a binding agreement.

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 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 compensates 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 onwards, there is a specific process which allows for continued employment or mandatory retirement depending on the medical. The procedures for those stood down and under 55 years of age are not as prescriptive, as retirement is not an operative 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 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