Complainant

Respondent

Parties

Martina Deasy

Daughters Of Charity Child And Family Service

Representatives

Olajide Ogidan of Forsa Trade Union

Peter Gilfedder  of 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-00056591-001

11/05/2023

The complainant has made a complaint of discrimination on the grounds of age when she was made to retire at the age of 66. The respondent contends their retirement policy is objectively justified by a legitimate aim.

The complainant worked until she reached the age of 66, in accordance with her contract of employment. In December 2022, well in advance of her 66th birthday the complainant requested the respondent to extend her contract of employment beyond the age of 66 for one year. This request was refused even though she was capable and competent to do her job. Her application for an extension was refused by the respondent without any objective ground being given. She was informed that no employee had ever been allowed to work beyond age 66, but this is not true. Also, there was no written retirement policy in the organisation. Household staff were kept in post beyond the age of 66 and some remained in position up until the age of 70.

The complainant invoked the grievance procedure and this was heard on 12 March. The complainant was unsuccessful and was informed that as her contract of employment stated her contracted retirement age was “State Pension Age” this was being honoured “despite being out of line with the organisation’s policy and our standard practice”, which was a contracted retirement age of 65. However, the respondent admitted that a limited number of staff have remained in employment beyond the age of 66 in roles that are not open to promotion, and that one Senior Manager remained in employment after 66 for three months in order to complete an identified project.

The outcome of the appeal was appealed and on 21 April the complainant was informed that her request to work beyond age 66 was refused.

The complainant submits that the respondent does not have an objective and justifiable ground for refusing the complainant’s request to work beyond 66.      

The respondent submits that on 9 December 2022 the complainant submitted a formal request to remain in employment after her contractual retirement age to the HR Manager. When this was acknowledged the HR Manager advised the complainant that “the relevant policy is currently under review in light of proposed legislative and regulatory changes”. On 26 January 2023 the HR Manager confirmed that the complainant would not be offered a new contract beyond the date she reached the state retirement age; 2 August 2023.

The complainant replied expressing her concern that a number of precedents had been ignored. She concluded by raising a formal grievance. A grievance meeting was held on 9 March 2023, during which the complainant gave examples of household staff who worked beyond 66. When asked she said she did not know of anyone in a similar role to herself who had their contract extended beyond their contracted retirement age. On 21 March 2023 the complainant was advised her grievance was unfounded because the organisation has legitimate aims and objective justification for establishing, and adhering to, a retirement policy. They said these are i) Intergenerational Fairness – to allow succession and promotional opportunities, ii) a wish to increase staff motivation and dynamism through the increased prospect of promotion and to assist staff retention, and iii) creating a balanced age structure across the organisation. Also, there is no precedent in the organisation for extending employment beyond the age of 66 for employees in the role of Family Centre Manager. She was told a number of staff have remained in employment beyond the age of 66 in roles that are not open to promotion. One Senior Manager had remained in employment after 66 for 3 months in order to complete an identified project.

The grievance was appealed and an appeal hearing took place on 12 April. The complainant was informed of the outcome on 21 April 2023 which confirmed the grievance outcome.

The respondent provided evidence that five Family Centre Managers would need to replaced, due to retirement by the end of 2027. Also, that there has been an increase in staff turnover, which they say is mainly due to retirement and lack of opportunities. In 2023 they lost three high potential employees identified as potential Family Centre Manager successors who left the organisation due to the lack of progression and available Family Centre managerial opportunities. The respondent submits that as part of their succession planning initiatives and to reduce turnover of high potential employees, they introduced the role of “Acting Manager”. Those in the role perform the role of Family Centre Manager when said manager is absent or on leave. In 2022 the respondent had nine “Acting Managers”, five of which have been identified as at rick of leaving the organisation for lack of promotional opportunities. Of the 10 Family Centre Managers in place as of January 2023, four of them were promoted because of their placement in the Acting Manager role.

The respondent submits that their retirement policy in relation to Family Centre Managers amounts to a legitimate aim and the means of achieving that are appropriate and necessary.

The complainant has made a complaint of discrimination on the grounds of age when she was made to retire at age 66.

Section 6(1) of the Employment Equality Act provides that discrimination shall be taken to occur where 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). Subsection (2) goes on to specify the discriminatory grounds, including—(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “ the age ground”).

Section 34(4) 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”.

In this case it is accepted that the complainant’s contract issued when she started working for a different employer stated her retirement age to be “the date upon which the employee becomes eligible for payment of the State pension”. This was honoured by the respondent who had taken over the organisation.

The complainant requested to stay in her employment for a further year in her role of Family Centre Manager. This was refused on 26 January 2023 and the only reason given at that time was that the complainant’s contractual retirement age was when she reached state pension age. She was also told the respondent was reviewing their policy relating to employees wishing to work after the contracted retirement age. She raised a formal grievance and the outcome of this was sent to the complainant on 21 March 2023 saying her grievance was unfounded. This communication included the respondent’s legitimate aims and objective justification for establishing and adhering to a retirement policy. It also dealt with the exceptions to the contractual retirement age raised by the complainant. The appeal decision also referred to the legitimate aims and objective justification of their retirement policy.

From the evidence presented both in writing and orally at the hearings the respondent has operated a retirement policy based on contractual provisions. At the time of the complainant’s application to stay for a further year the organisation had not publicised what they later set out as their legitimate aims for their retirement policy to staff. These were:  i) Intergenerational Fairness – to allow succession and promotional opportunities, ii) a wish to increase staff motivation and dynamism through the increased prospect of promotion and to assist staff retention, and iii) creating a balanced age structure across the organisation. The evidence does show that prior to the complainant’s request to stay on they were taking measures to help them retain staff that had the potential to be promoted to the Family Centre Manager role.

I accept the respondent’s evidence that the exceptions to their retirement policy were made for employees who were not in a promotion role. The only other exception was for someone at a similar level to the complainant was for a fixed period of three months to complete an identified project.

In these circumstances I conclude that the respondent has satisfied the provisions of section 34 (4) of the Employment Equality Acts in that their retirement policy in relation the role of Family Centre Manager, as it was applied to the complainant was objectively and reasonably justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. I find the respondent has not discriminated against the complainant.

For the reasons set out above I find the respondent has not discriminated against the complainant on the grounds of age.