Complainant

Respondent

Parties

Valentine  Reilly

Meath County Council

Representatives

Maria Geraghty, SIPTU

Amanda Kane, LGMA

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-00061532-001

13/02/2024

In October 1987, the Complainant commence work as a Retained Firefighter for the Respondent. The Complainant responded to calls on an alert system and earned a retainer of approximately €12,000 per year. On 19 December 2023, in advance of his 60th birthday, the Complainant applied to postpone his retirement. The Complainant was informed on 20 December 2023 that the statutory retirement terms applied to retained firefighters and that his request to postpone his retirement was refused. The Complainant’s last day of employment was on 13 February 2024. The Complainant filed his WRC Complaint Form that same day.

The Complainant alleges that the Respondent discriminated against him on the ground of age, in violation of the Employment Equality Act 1998-2015 (the “EEA”) as amended. The Complainant is seeking to be reinstated retrospectively from 14 February 2024. The Respondent submits, inter alia, that it acted in accordance with Circular LG(P) 02/2020 dated 8 December 2020. The Respondent denies the allegations in their entirety.

The Complainant provided detailed written and oral submissions.

The Complainant submitted that he commenced work for the Respondent in October 1987. He submitted that under this first contract, the normal retirement age was 55 years of age. The Complainant submitted that when he reached 55 years of age, he received a three-year fixed-term contract. He submitted that when he reached 58 and then 59 years of age, he applied for postponements of his retirement and received two successive one-year fixed-term contracts, following the completion of a medical assessment. The Complainant submitted that in advance of his 60th birthday, the Complainant was informed that the statutory retirement terms applied to retained firefighters and his latest request, dated 19 December 2023, to postpone his retirement was refused.

The Complainant submitted that he is fit and healthy with good physical capacity and that an Occupational Health assessment would determine the same.

The Complainant submitted that there were other firefighters, employed by other county councils, who worked beyond the age of 60.

The Complainant referred to the Minister’s statement dated April 2024 that the mandatory retirement age for full-time and retained firefighters will soon be increased to 62 years of age. The Complainant also referred to Circular LG(P) 04/2024 dated 4 May 2024.

Legal Submissions:

The Complainant referred to, inter alia, section 34(4) of the EEA; the Irish Human Rights and Equality Commission Guidelines on Retirement and Fixed Terms Contracts dated April 2018; and the Code of Practice on Longer Working. The Complainant submitted, inter alia, that the Respondent failed to “objectively justify” the mandatory retirement age. The Complainant further submitted that “an employer must be able to point to the reason behind the setting of the mandatory retirement age and show that their aim could not have been met by lesser means”. The Complainant submitted that the Respondent failed to carry out a “proper audit” to show a legitimate aim.

The Complainant further submitted that the Respondent’s means of achieving its aim “to ensurethe proper functioning of the fire service where physical and mental abilities are crucial for the role” were neither appropriate nor necessary. The Complainant submitted that the Respondent does not have sufficient firefighters and is not ensuring the proper functioning of the fire service. The Complainant submitted that the Occupational Health Scheme should be used to deal with any issues in relation to his physical and mental ability.

The Complainant relied on a number of cases, including Seldon v. Clarkson Wright & Jake [2012] I.C.R 716; Donnellan v. Minister for Justice and Law Reform and Others [2008] IEHC 467; Prigge v. Deutsche Lufthansa [2011] E.C.R. I-8003, Case C-447-08; and Thomas Doolin v. Eir Business Eircom Limited, ADJ-00045261.

As regards Seamus Mallon v. The Minister for Justice, Ireland, and the Attorney General, [2024] IESC 20 (15 May 2024) (the “Mallon Case”), the Complainant sought to distinguish the Supreme Court’s findings insofar as this matter concerns an upper retirement age of 60, achievable only by way of a “series of fixed term contracts […] each of which must be preceded by a medical examination confirming his capability to undertake the role”.

The Complainant submitted that the Respondent failed to show that it had satisfied the proportionality test. The Complainant submitted that he does not a have a ”professional qualification that he could use post-retirement and [that] he had no state pension at retirement.” The Complainant submitted that, as regards consideration of undue hardship, the Complainant’s position differs to the Mallon Case. 

Finally, the Complainant referred to the Supreme Court’s findings that different considerations apply in the context of lower retirement ages specific to particular occupations (such as airline pilots). The Complainant submitted that “no assessment of the Complainant’s capability to perform his role upon reaching age 60 ever took place and therefore it is not open to the Respondent to utilise this defence.” The Complainant further submitted that this is not a genuine occupational retirement “given that that there are other firefighters currently working beyond the age of 60 in the fire service [and] there are firefighters who will work up to the age of 70.”

The Complainant – Evidence:

The Complainant submitted that he responded to calls on an alert system. He submitted that the calls related to a variety of matters including flooding, fallen trees, snow, fuel spills on the roads and road traffic collisions. The Complainant submitted that he received approximately 80 calls last year. He submitted that he received training every Tuesday night from 7pm to 9pm, as well as more extensive annual training concerning, for example, road traffic collisions and chemicals. The Complainant submitted that he also had a second job.

The Complainant submitted that he was prepared to work beyond 60 years of age. He submitted that he was “shocked and disappointed” when his latest request to postpone his retirement was refused. He submitted that his request was refused in writing and that he was not invited to a meeting to discuss his individual circumstances.

Under cross-examination, the Complainant confirmed that he was aware of the mandatory retirement age and the process that allowed for the postponement of a retirement until the age of 60. The Complainant also confirmed that his last contract was a one-year fixed-term contract.

The Respondent provided detailed written and oral submissions.

The Respondent submitted that the Complainant’s retirement date of 13 February 2024 was set in accordance with the normal retirement age of 60 for retained firefighters employed by the Respondent and nationally.

The Respondent submitted that certain services in Ireland, including An Garda Síochána members, Prison Officers, the Defence Forces and Fire Services have a statutory retirement age. The Respondent submitted that specifically as regards firefighters, Circular LG(P) 19/03 dated 24 November 2003, issued on foot of the Report of the Expert Group on Retirement Age, provides for a retirement age of 58, subject to an annual medical assessment. The Respondent submitted that Circular LG(P) 02/2020 dated 8 December 2020, issued on foot of a WRC Recommendation, provides for an increased retirement age of 60, subject to an annual medical assessment.  The Respondent submitted that it has acted in accordance with these Circulars.

The Respondent submitted that it recognises that the Government has recently announced its intention to extend the retirement age for firefighters to age 62, however the legislative changes have not come into effect. The Respondent submitted that it cannot be expected to provide for legislation which is not yet enacted. 

The Respondent further submitted that it did retain a firefighter until he was 58.5 years of age, when the mandatory retirement age at the time was 58. The Respondent submitted that there were exceptional circumstances at the time insofar as the firefighter in question was the station officer and there were recruitment issues. The Respondent submitted that it has reviewed all retirements of its retained firefighters for the past decade and no firefighter, at any grade, has remained in employment beyond the age of 60.

Legal Submissions:

The Respondent referred to, inter alia, articles 4(1) and 6(1) of the Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (the “Directive”). The Respondent submitted that its legitimate aims were:

·             to ensure the “proper functioning of fire services reflecting that in fields of work where physical and mental abilities are crucial for the role, it will be more likely that setting maximum retirement ages for those roles will be proportionate and justified”; and

·             the duties of the fire service require a level of “physical capability insofar as physical inadequacies in the exercise of those duties may have significant consequences for fire service employees and members of the public. It follows that the possession of particular physique may be considered a genuine and determining occupational requirement for the pursuit of the role.”

The Respondent submitted that articles 4(1) and 6(1) of the Directive should be “read together”. The Respondent further submitted that the retirement age is objectively justified by legitimate aims within the meaning of article 6(1) and that the retirement age is permitted by reference to article 4(1) of the Directive.

The Respondent also submitted that the establishment of a mandatory retirement age was objectively justified by reference to a legitimate aim and that the means used were appropriate and reasonable and therefore in accordance with section 34(4) of the EEA.

The Respondent relied on a number of cases including Donnellan v. Minister for Justice, Equality and Law Reform [2008] IEHC 467; Saunders v. CHC Ireland Limited DEC- E2011-142; Wolf v. Stadt Frankfurt am Main C-229/08; and Palacios de la Villa v. Cortefiel Servicios SA, Case C-411/05.

As regards Seamus Mallon v. The Minister for Justice, Ireland, and the Attorney General, [2024] IESC 20 (15 May 2024) (the “Mallon Case”), the Respondent referred, inter alia, to the Supreme Court’s findings regarding the standardisation of retirement ages in the public service. The Respondent submitted, inter alia, that the “consistent and systematic” application of retirement rules is an important element of the proportionality analysis; that an employer is not required to objectively justify the application of a retirement age to an individual employee; and that individual assessment is not warranted.

The Respondent’s HR Officer – Evidence:

Mr. Collins (the “HR Officer”) outlined that he has held his role since the end of February 2022.

The HR Officer outlined that he is familiar with Circular LG(P) 02/2020 dated 8 December 2020 (the “Circular”). He outlined that in his experience, no retained firefighter remained in employment beyond 60 years of age. He outlined that there had been approximately five retirements over the past two years and that no one has applied to postpone their retirement beyond 60; and no one has been permitted to stay in employment beyond 60.

The HR Officer outlined that he managed the Complainant’s application for a retirement postponement. He outlined that he received it shortly before Christmas 2023 and that he was anxious to respond to it in a timely manner. He outlined that he received the request in writing and so responded to it in writing. The HR Officer outlined that when refusing the request, he applied the provisions of the Circular.

The HR Officer further outlined that the Respondent is tracking retirements to ensure that that they are planned for and recruited for, to ensure that there are no vacancies.

Under cross-examination, the HR Officer stated that he did not discuss the Complainant’s retirement postponement request with him.

Under cross-examination, the HR Officer stated that following the WRC Recommendation, the size of firefighter crews was increased nationally, from 10 to 12. The HR Officer outlined that the Complainant’s station, Oldcastle, has a capacity of 12. He outlined that currently in Oldcastle, there are 11 active firefighters in place and one firefighter in training. He further outlined that the other stations in the county are in a similar position and that they will all soon be at full capacity. The HR Officer stated that there were some difficulties with recruitment in Nobber due to its rural location. He further outlined that Navan is at full capacity with 16, as it is a “two pump” station. 

The HR Officer outlined that firefighters must live locally to their station and within a response time of approximately five minutes. The HR Officer stated that the Complainant’s station in Oldcastle will shortly be at full capacity.

The HR Officer outlined that no one over the age of 60 had their retirement age postponed, pending the implementation of legislation this summer.

The Law:

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

Legislation:

Section 6(1) of the EEA provides:

“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”)”.

Section 6(3)(c) provides:

“Offering a fixed term contract to a person over the compulsory retirement age for that employment or to a particular class or description of employees in that employment shall not be taken as constituting discrimination on the age ground if—

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

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

Section 34(4) of the EEA transposes article 6 of the Directive and provides for exceptions relating to, inter alia, the age ground:

“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 —

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

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

Section 37 of the EEA transposes article 4 of the Directive and provides for exclusion of discrimination on particular grounds in certain employments:

“(2) For the purposes of this Part a difference of treatment which is based on a characteristic related to any of the discriminatory grounds (except the gender ground) shall not constitute discrimination where, by reason of the particular occupational activities concerned or of the context in which they are carried out—

(a) the characteristic constitutes a genuine and determining occupational requirement, and

(b) the objective is legitimate and the requirement proportionate.

(3) It is an occupational requirement for employment in the Garda Síochána, prison service or any emergency service that persons employed therein are fully competent and available to undertake, and fully capable of undertaking, the range of functions that they may be called upon to perform so that the operational capacity of the Garda Síochána or the service concerned may be preserved.”

Section 85A (1) of the Act provides:

“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.”

Code of Practice on Longer Working:

The Industrial Relations Act 1990 (Code of Practice on Longer Working Declaration) Order of 2017 sets out “best principles and practice to follow during the engagement of employers and employees in the run up to retirement including responding to requests to work beyond the retirement age in the employment concerned.” The Code of Practice identifies the following examples of what constitutes legitimate aims by an employer:

·             Intergenerational fairness (allowing younger workers to progress);

·             Motivation and dynamism through the increased prospect of promotion;

·             Health and safety (generally in more safety critical occupations);

·             Creation of a balanced age structure in the workforce;

·             Personal and professional dignity (avoiding capability issues with older employees);

·             Succession planning.

Retirement and Fixed-Term Contract Guidelines:

The IHREC Retirement and Fixed-Term Contracts Guidelines dated April 2018 “provide guidance […] in relation to the interpretation and application of section 6(3)(c) of [the EEA]”. The Guidelines note that they should be read in conjunction with any relevant statutory code of practice as may be enforced from time to time, including the Code of Practice on Longer Working (above).

The Guidelines identify the following matters as legitimate aims which are capable of objectively justifying differences of treatment on the grounds of age:

·             Preserving the operational capacity of the armed forces, police, prison or emergency services;

·             Promoting the vocational integration of unemployed older workers;

·             Encouraging recruitment;

·             Sharing employment between the generations;

·             Establishing a balanced age structure within a particular employment;

·             Workforce planning;

·             Avoiding disputes concerning employees’ fitness to work;

·             The protection of health and safety;

·             Promoting the access of young people to professions;

·             Ensuring the best possible allocation of positions between the generations within a given profession.

Case Law:

The Mallon Case - Current Position under Irish Law:

In Seamus Mallon v. The Minister for Justice, Ireland, and the Attorney General, [2024] IESC 20 (15 May 2024) (“the Mallon Case”), Mr. Justice Collins, in a unanimous Supreme Court judgment, recently considered the mandatory retirement of a county sheriff. In that case, Mr. Mallon was a solicitor in private practice who also held the position of county sheriff, for which he was paid an annual retainer and certain fees. The Supreme Court considered the Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (the “Directive”) as well as the case law of the Court of Justice of the European Union (the “CJEU”). The Supreme Court held that once the aims sought are legitimate and the measure is proportionate, a mandatory retirement age rule will not offend the prohibition on age discrimination.

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

At paragraph 62(5), the Supreme Court noted that legitimate aims can include:

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

·             Promoting the access of young people to the professions;

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

·             Sharing employment between the generations;

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

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

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

·             Standardising retirement ages for professionals in the public service.

The Supreme Court noted that CJEU jurisprudence following Donnellan v. Minister for Justice and Law Reform and Others [2008] IEHC 467 does not support individual assessments. The Supreme Court found that such individual assessments can give rise to disputes and can also potentially impact upon the dignity of employees. Consequently, the Supreme Court found that the avoidance of an individual capacity assessment has been recognised as a legitimate aim in favour of justifying a general retirement age (paragraph 74).

The Supreme Court also held, inter alia, that:

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

·             A mandatory retirement age which is lower than 70 applies in certain areas, including An Garda Síochána, the Permanent Defence Forces and the fire services where “[p]articular considerations apply” (paragraph 97).

·             The decision to adopt a mandatory retirement age is a matter for the relevant competent authority which (in this case) is “better placed that the courts to assess what [is] necessary or appropriate for the effective operation of the coronial system”. Courts have a limited role insofar as they are only concerned with whether the competent authority’s judgment appeared to be unreasonable (paragraph 104).

·             While there were admissibility issues surrounding a Ministerial statement in the Dáil, a general policy to increase mandatory retirement ages is not inconsistent with recognising and legislating for specific needs in an area (paragraph 108).

·             Significant reliance could be placed on whether any financial hardship would arise and this would go to an analysis of the proportionality of the mandatory retirement age (paragraph 110).

Findings and Conclusion:

On its face, a mandatory retirement age is discriminatory. However, to come within the exception under section 34(4) of the EEA, an employer must establish that the relevant mandatory retirement age was objectively and reasonably justified by a legitimate aim; and that the means of achieving that aim were appropriate and necessary.

Legitimate Aim:

The Respondent submitted that its legitimate aims were:

·             to ensure the “proper functioning of fire services reflecting that in fields of work where physical and mental abilities are crucial for the role, it will be more likely that setting maximum retirement ages for those roles will be proportionate and justified”; and

·             the duties of the fire service require a level of “physical capability insofar as physical inadequacies in the exercise of those duties may have significant consequences for fire service employees and members of the public. It follows that the possession of particular physique may be considered a genuine and determining occupational requirement for the pursuit of the role.”

I note that the CJEU jurisprudence outlined in the Mallon Case upheld the position that a legislative measure which does not identify the aim being pursued, but does provide a general context of the measure concerned, can be relied on to identify the underlying aim of the measure.

I note also that pursuant to the Mallon Case, the decision to adopt a mandatory retirement age is a matter for the relevant competent authority which is “better placed than the courts to assess what is necessary or appropriatefor the effective operation of”, in this matter, the fire services. In this regard, I note that the mandatory retirement age of 60 for retained firefighters, was set out in Circular LG(P) 02/2020 dated 8 December 2020 (the “Circular”), following a WRC Recommendation accepted by both management and union sides. I note that the Respondent acted in accordance with this Circular.

For completeness, I note that the Government recently announced its intention to extend the retirement age for firefighters to age 62. I also note the Complainant’s reference to Circular LG(P) 04/2024 dated 4 May 2024. However, this circular was introduced after the Complainant had been retired and his complaint was filed with the WRC. Therefore, the Respondent acted in accordance with the relevant Circular in place at the time.

Finally, I note that the Respondent’s HR Officer provided evidence regarding succession planning and that he rebutted the unsupported allegations regarding the proper functioning of the Respondent’s fire service. In this regard, the HR Officer outlined that the Complainant’s fire station in Oldcastle has a capacity for 12 firefighters, of which 11 are in currently in place and one is in training (at the time of the Hearing).

I find that the Respondent is best placed to assesses what is necessary or appropriate for the effective operation of its fire service. I accept that the physical and mental abilities of retained firefighters are crucial for the role and the proper functioning of the fire service. I note that the Respondent acted in accordance with the Circular in place at the time and engaged in succession planning. In the circumstances, I find that the Respondent has established that the mandatory retirement age was objectively and reasonably justified by legitimate aims.

Appropriate and Necessary Means:

I note that the Circular, outlining the mandatory retirement age, was applied consistently by the Respondent both in relation to the Complainant and in relation to other firefighters. In his evidence, the Complainant confirmed that his last two contracts, when aged 58 and 59, were one-year fixed-term contracts which he received following the successful completion of a medical assessment. Under cross-examination, the Complainant confirmed that he was aware of the mandatory retirement age of 60. Moreover, I note that the Respondent’s HR Officer confirmed that he had reviewed all of the retirements of its retained firefighters for the past decade and found that no firefighter, at any grade, had remained in employment beyond the age of 60. While the Complainant referred to alleged practices in other county councils, this is inadmissible as it is hearsay.

The Complainant placed significant emphasis on his own physical fitness and the fact that he had not been individually assessed. However, pursuant to the Mallon Case, a “consistent and systematic” application of mandatory retirement rules is important. Moreover, the Mallon Case held that the avoidance of an individual capacity assessment is a legitimate aim in favour of justifying a general retirement age. Finally, as noted by the Supreme Court, individual assessments are not supported by CJEU jurisprudence.

I also note that in the Mallon Case, the Supreme Court placed significant reliance on whether any financial hardship would arise, which would go to an analysis of the proportionality of the mandatory retirement age. In this matter, the Complainant confirmed in his evidence that he worked elsewhere, as he was entitled to do. This weighs in favour of the proportionality of the mandatory retirement age.

In the circumstances, I find that the Respondent’s means of achieving the legitimate aims were appropriate and necessary.

Exemption under Section 37 of the EEA:

For completeness, I note that the Respondent appeared to conflate articles 4(1) and 6(1) of the Directive. Section 34(4) transposes article 6(1) of the Directive while section 37 of the EEA transposes article 4 of the Directive. As I have found that the Respondent acted in compliance with section 34(4) of the EEA, there is no need for me to consider the Parties submissions separately under section 37 of the EEA.

Conclusion:

I determine that the Respondent acted in compliance with section 34(4) of the EEA in that: the mandatory retirement age it applied was objectively and reasonably justified by legitimate aims; and the means of achieving those aims were appropriate and necessary. In the circumstances, I find that the Complainant was not discriminated against and that this complaint is not well founded.         

For the reasons set out above, I find that the Complainant was not discriminated against and that this complaint is not well founded.           

Employment Equality Acts 1998 – 2015, Mandatory Retirement Age.