Complainant

Respondent

Parties

Liam  Murphy

Deepak Fasteners (Shannon) Ltd

Representatives

Jemma Mackey, SIPTU

Muireann McEnery, IBEC

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-00051573-001

06/07/2022

The Complainant commenced his employment with the Respondent on 21 February 1977. His employment terminated on 26 February 2022.

On 6 July 2022, the Complainant referred the within claim to the Director General of the WRC alleging that he was discriminated against by reason of his age in that he was dismissed for discriminatory reasons.

The Respondent rejects the claim.

SIPTU, on behalf of the Complainant submits as follows.

The Complainant was employed by the Respondent as a General Operator. He requested to continue working beyond his 65th birthday. This matter was exhausted through internal process and failed.

The Complainant was a loyal employee with over 45 years of service. The Complainant commenced working for the Respondent in February 1977 and remained in employment until the day of his 65th birthday on 27 February 2022.

The Complainant enjoys good health and was confident that he, like many others in society, had value in the workplace beyond the age of 65.

The Complainant operated machinery that is automatic, which produces steel components, the role itself does not require any manual handling nor is it labour intensive.

Background to the case

The Complainant’s contract of employment does not stipulate a retirement age. The Complainant initiated an internal process in November 2021 with a request to work beyond his 65th birthday. This request was outrightly refused by the Respondent and the Complainant received a formal correspondence from Mr Seamus McGiff, the Finance and Operations Controller on 18 January 2022, advising that his request for longer working was denied on the following grounds:

·       The role is considered to be of a manual and labour intensive nature;

·       The role involves working with heavy machinery and/or strenuous labour;

·       The role requires dexterity;

·       The company’s normal retirement age is 65;

·       Age balance in the workforce;

·       Some insurance companies do not offer insurance for workers over the age of 65;

·       An older workforce is a drain on company resources;

·       Health and safety concerns, specifically loss of concentration;

·       The role is physically demanding;

·       The Respondent wishes to encourage the promotion of younger people to facilitate lower staff turnover with promotional prospects.

The Respondent did not offer or facilitate an appeal and the Complainant did not initiate one. Therefore, the Complainant was compulsory retired on 26 February 2022.

The Complainant’s case

Respondent’s reason 1: succession planning

One of the reasons the Respondent has referenced in its refusal letter is the existence of a normal retiring age. There is no statutory retirement age in the private sector and any mandatory retirement age introduced by an employer will be considered discriminatory unless it can be objectively justified. It is well settled in law that each case should be considered on its own facts.

It was proffered that the work the Complainant carried out requires operating heavy machinery and/or strenuous labour with dexterity and speed of movement that would benefit productivity. It must be noted that the Respondent did not carry out a risk assessment to determine whether or not the Complainant was capable of doing the job. In addition, dexterity tests are very much the norm within the manufacturing industry and no dexterity test was completed.

It was also stated that the Respondent needs to train up new recruits to maintain profitability. The Complainant was fully competent to carry out his contractual duties. No issue was ever raised with the Complainant regarding low productivity, no concerns or analysis was ever put to the Complainant in that regard.

Respondent’s reason 2: age balance in the workforce

The Respondent, in the refusal letter referenced the “higher than average age” of workers being above 50. This letter states: “we need to bring in younger workforce so that we don’t come to a cliff edge when a group of workers decide to retire and we have not passed on knowledge to a younger cohort.”

This is somewhat contradictory, as employees cannot decide to retire unless they retire early. In addition, the knowledge the Respondent is valuing here remains with the Complainant and any worker of his age. The Complainant has 45 years of knowledge, skill and ability that is invaluable. Therefore, the Complainant cannot agree that an employee that is older than 65 is a “drain” on the Respondent’s resources. In fact, it is contended that older employees are an asset to any company.

Respondent’s reason 3: health and safety concerns

It is SIPTU’s position that the Employment Equality Acts were amended in 2015 to ensure that the setting of a compulsory retirement age was deemed to be discriminatory unless it was objectively justified. The Respondent was under an obligation to review and revisit any retirement age that had been set either through a collective agreement or the Safety Statement and failed to do so. Therefore, to rely on health and safety as an objective justification for the Complainant’s retirement, the Respondent would have had to carry out risk assessment into the specific industry in which it operates and the specific role the Complainant carried out. It would have had to explore the impact that ageing would have on an individual’s ability to continue working and this exercise was never done.

The Complainant had continued to carry out his duties to the highest technical standard. He performed his work without any procedural flaw and without any requests for further training or reassignment of duties. He remained competent and capable of performing all duties assigned to him.

Therefore, in refusing the Complainant’s request to remain in employment beyond the age of 65 while failing to meaningfully engage with him (and other staff) as to the real and substantial health and safety obstacles involved in carrying out their duties post-retirement age, the Respondent has failed to adequately demonstrate that there are previously considered and investigated objective justifications to the establishment of a retirement age. As a result, the Respondent manufactured and relied upon this misnomer without going through the proper procedure.

Respondent’s reason 4: encouragement and promotion of young people

To be non-discriminatory, 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. The Respondent's fourth and final reason for refusing the Complainant's request to remain at work beyond age 65 is intergenerational fairness.

The Respondent proffers natural progression for promotional positions. White this is commendable and to the benefit of the Respondent, SIPTU cannot agree that keeping the Complainant on beyond his 65th birthday would have had an impact on this staff turnover. The years an employee would remain on for could not impact this.

Furthermore, the Respondent has not appointed an employee to backfill the post left vacant by the Complainant and is deriving a cost saving from his retirement. It is also common knowledge within the Respondent company that over the last number of years as many as five employees have retired and only one of these posts was backfilled.

These facts do not support the principal of intergenerational fairness espoused of by the Respondent and it is evident that there is no link between the retirement of the Complainant and the alleged application of the principle of intergenerational fairness within the Respondent company.

The Respondent has also failed to substantiate the existence of such a structure in the workplace and provide any information or documentation on the process that they followed to arrive at this alleged legitimate aim, and how it has since been implemented and followed when each employee retires.

Legislation - Employment Equality Acts 1998-2015

The Employment Equality Acts 1998, Section 34 (4) states the following: Without prejudice to subsection (3) it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntary or compulsorily) of employees or any class or description of employees if—

it is objectively and reasonably justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.

As set out in the IHREC Guidance on Retirement and Fixed Term Contracts, for an aim to be legitimate it must correspond to social policy objectives related to employment policy, labour market or vocational training. The aim should correspond to a public interest rather than a purely private interest particular to the employer such as cost reduction or improving competitiveness. While commercial and financial considerations may underpin the employer’s policy with respect to fixing a compulsory retirement age such considerations cannot in and of themselves constitute a legitimate aim.

It is not sufficient for an employer to identify a legitimate aim which may in principle be capable of justifying the fixing of a compulsory retirement age. An employer must also establish that fixing a compulsory retirement is objectively justified by the legitimate aim relied upon. Mere generalisations as to the capacity of such a measure to contribute to legitimate employment policy, labour market or vocational training objectives are insufficient to show that the aim pursued justifies a difference in treatment on grounds of age.

Fixing a compulsory retirement age must be both an appropriate and a necessary means of achieving the legitimate aim relied upon by the employer. Where fixing a compulsory retirement age goes beyond what is appropriate and necessary to achieve the legitimate aim pursued by the employer, this will fall outside the exemption provided for under the Employment Equality Acts, potentially amounting to discrimination on the grounds of age.

Section 85(A) of the Employment Equality Acts 1998 - 2015 sets out the burden of proof which applies to claims of discrimination. It requires the Complainant to establish, in the first instance facts upon which he or she can rely in asserting that he or she has suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination. In meeting the burden of proof as required by section 85(A) SIPTU submits that the Adjudicator is obliged to consider the following facts:

·       The Complainant was dismissed by the Respondent on reaching his 65th birthday.

·       The Respondent's decision to terminate the Complainant's employment was directly related to his age.

Case Law

The facts of Anne Roper and Radio Teilifis Eireann ADJ-00019084 are similar to the facts of the Complainant's case and the legal reasoning applied by the Adjudicator in this case is therefore of extreme importance in determining whether the respondent discriminated against the complainant. In this case the definition of intergenerational fairness was explored. The Adjudicator held that they must be satisfied that the retirement actually contributed to intergenerational fairness. It found that the effect of this measure was so confined and limited that it could not accept that it was objectively justified. The Adjudication Officer also held that they must be satisfied that the retirement was appropriate and necessary and found that it instead had a disproportionately negative effect on the Complainant in comparison to the 'dubiously positive impact it had on her employer'.

In Thomas O'Mahony v Southwest Doctors On Call Limited DEC-E2014-031 the Equality Officer found that the employer was not engaging in intergenerational fairness, which may at times be an objective justification, but was instead trying to reduce its headcount in the least expensive way. This is evidenced in the refusal letter, where the Respondent in point 2 clearly relies on redundancies as part of its justification. While in this case the issue was whether the employee was in fact entitled to redundancy. A comparison can be drawn with the Respondent's actions in the Complainant's case as the Complainant's role has not been filled and his duties have instead been subsumed into an existing role, saving the Respondent his salary. This case also dealt with health and safety justifications and the Equality Officer found (like the Complainant's case) that the employer provided no evidence to either justify why the cut off age of 65 for working was appropriate and necessary or that more proportionate responses to health and safety concerns were explored and considered. Two examples were given of more proportionate responses on behalf of the employer were the offering of a fixed term contract post 65 and / or annual health checks. Neither of these responses were considered by the Respondent in the Complainant's case either.

In Mary Costigan and South Leinster MABS CLG ADJ-00041989 the respondent submitted that the primary purpose for compelling the complainant to retire in 2022 was to engage in succession planning. The respondent also submitted that it reviewed the complainant's request to remain beyond the age of 66, for a period beyond the collectively agreed retirement age. The Adjudicator in this case found that a retirement age was provided for in the complainant's contract of employment and was known to her. The Adjudicator found that the collectively agreed mandatory retirement age of 66 within the respondent organisation was objectively and reasonably justified by legitimate aims but, in relation to the compulsory retirement of the complainant, the means of achieving these aims was not appropriate and went further than what was necessary. The effects of discrimination crystalised when the complainant's employment was terminated on 4 May 2022 thereby denying her a further period of employment. The complainant had an exemplary work record, and she was entirely capable of working beyond age 66, and there was a continuing need for the work performed by the complainant, at least until the return of the substantial job holder. The Adjudicator found that the compulsory retirement at age 66 constituted an act of discrimination within the meaning of section 6 of the Acts, and compensation was awarded.

In Thomas Doolin and Eir Business Eircom Limited ADJ-00045261, the internal policy, like in the within case, was not applied universally. The next question the Adjudicator considered was whether there was objective justification that is reasonably justified by a legitimate aim for having a mandatory retirement age of 65. When examining the matter of intergenerational fairness, the Adjudicator was unconvinced that retaining the complainant in employment would have impeded the career progression of any other employee. The Adjudicator when examining the Respondent's suggestion that the retirement of the Complainant was objectively justified on the grounds of succession planning or the desire to maintain an age balance in the workplace, found that neither succession plans nor a potential cliff-edge scenario, where a substantial number of employees might retire simultaneously, as set out in their Retirement Policy, would have arisen if the complainant was retained in his employment. This is identical to this case.  The Adjudicator found that the decision of the Respondent to refuse to allow the Complainant to work beyond 65 was not objectively justified on any of the grounds set out in the Respondent's retirement policy, given his specific role and the nature of it. He added that there was no scrutiny of this individual and the case was upheld. Similarly, in the within case, there is no reference to the Complainant himself as an individual, no risk assessment, no occupational health report or no interview to ascertain anything about this individual.

Conclusion

The above set of facts are of such significance that they are sufficient to establish a prima facie case of discriminatory treatment and the burden of proof must now shift to the Respondent for rebuttal. SIPTU’s position is that given the reality of the above facts and the test set out in the legislation (with guidance from IHREC), the Respondent cannot legitimately rebut the fact that the Complainant was discriminated against by way of dismissal as no exercise or procedure was ever completed to ensure that the setting of a mandatory retirement age was objectively justified as an appropriate way of achieving a legitimate aim.

SIPTU refers to McKechnie J in Donellan v Minister for Justice, Equality and Law Reform and others [2008] IEHC 467, where he stated that the imposition of a retirement age should be individually assessed on a case-by-case basis. It must be noted, as above that no consideration was afforded to the Complainant and his individual circumstances.

SIPTU submits that the Respondent's evaluation of the Complainant's application to work beyond 65 was akin to the approach taken by the Respondent in the case of Patrick O'Callaghan v Ferrero Ireland ADJ-00043459. In that matter, the Adjudication Officer, in echoing McKechnie J in Donnellan stated that the Respondent's "position clearly lacked an element of individual assessment" and that "No evidence of a test of compatibility of the purported legitimate aims, directed specifically at the individual characteristics of the Complainant, was given." This similarity highlights a lack of scrutiny regarding the compatibility of the stated legitimate aims of the Respondent in the instant case with the specific characteristics of the Complainant.

The Complainant is seeking compensation by way of redress for the discriminatory treatment suffered.

At the adjudication hearing, it was submitted that the Complainant was put on light duties on 26 May 2021 and went back to his full duties in June 2021.

The medical certs furnished by the Complainant show as follows:

Cert dated 21 May 2021 – “unable to attend work from 26 May 2021 to 2 June 2021.”

Cert dated 24 May 2021 – “unable to attend work from 26 May 2021. Additional notes: light duties 2 days a weeks – pending review.”

SIPTU, in its concluding remarks suggested that the Complainant could have done light duties, he did not have to stay on the machinery he normally operated post-retirement age. He was not unfit to stay working for another year.

Summary of direct evidence and cross-examination of the Complainant

The Complainant said that he wrote to Mr McGiff (now the CEO) requesting to remain in employment for one year until he reaches the age of 66. The Complainant thought that he was fit. He could train people before he left.

The Complainant said that the Respondent never approached him regarding the new machinery. The Complainant was happy to do his job.

The Complainant said that he was diagnosed with cancer and was out sick from 29 September 2020. He returned to work on 5 January 2021. He then went out sick due to an infection towards the end of April / start of May 2021. He returned to work on 2 June 2021 on light duties 2 days per week for a few weeks. The Complainant said that he went back to his full duties in the end of June 2021.

The Complainant said that there was no risk assessment. He was fit and healthy and at 65 was still working at the machine.

In cross-examination the Complainant agreed that the job involved lifting of dice approx. 1-2 stone in weight and up to 5 kg pans. He also agreed that the job requires a high level of concentration and there is a health and safety risk if someone is not paying attention.

In reply to a question if he had ever looked for training or upskilling, the Complainant said that he was sure he did more than once but could not remember when or what training.

The Complainant confirmed that he returned to work in January 2021 on light duties on so called “pick out”. He was then put on light duties from 26 May 2021. The Complainant confirmed that there was no cert taking him off light duties. It was put to the Complainant that he said that he came back to full duties after a few weeks but he had 10 weeks of sick leave. The Complainant replied that he went to hospital on 1 April 2021 and did not come back until 2 June 2021.

The Complainant disagreed with the Respondent’s assertion that his colleagues were asked to assist him when he was on light duties.

It was put to the Complainant that a cert is required to put an employee back on full duties and the Complainant never returned to full duties. The Complainant said that he thought it was up to him, he felt well and went back to work on full duties.

The Complainant confirmed that he was aware of the pension scheme in place, the collective agreement and the normal retirement age of 65.

In re-examination the Complainant confirmed that he was not requested to provide a “clear” cert.

The Complainant’s claim of discrimination necessitates the discharge of the burden of proof that there is a prima facie case to answer by the Respondent as prescribed by section 85A of the Employment Equality Acts, 1998-2015. The following submission is made strictly on a without prejudice basis to the Complainant’s obligation to discharge this burden of proof.

Background to the Respondent.

Deepak Fasteners (Shannon) Ltd. (DFSL) was established in 2008, at which time it purchased the Business Assets of the Unbrako division of SPS International Ltd. Employees of SPS International Ltd. associated with the Unbrako Business were transferred to DFSL under the Transfer of Undertakings legislation. SPS International Ltd. commenced business on the same site as DFSL in 1960.

Background to the Complainant

The Complainant was employed by the Respondent from 21 February 1977 as an Operator. He was provided with a contract of employment dated 9 March 1977.

Background to the claim

In accordance with the Respondent’s Normal Retirement Age (“NRA”) of 65 the Complainant was due to retire in February 2022. By letter dated 23 November 2021 however, the Complainant requested to remain working after the age of 65.

The Respondent issued a response to the Complainant by letter dated 18 January 2022. There was no subsequent engagement after this letter and the Respondent received notification of a claim to the WRC on 15 September 2022 together with a copy of the complaint. It should be noted that the Complainant did not seek clarification which was afforded to him in the letter of 18 January 2022. The Complainant was represented and, the Respondent asserts, he knew about the appeal option, albeit it was not spelled out in the letter.

Respondent’s Position

Normal Retirement Age

Deepak Fasteners (Shannon) Ltd. (DFSL) was established in 2008, at which time it purchased the business assets of the Unbrako division of SPS International Ltd. Employees of SPS International Ltd. associated with the Unbrako Business were transferred to DFSL under the Transfer of Undertakings legislation. Whilst most individual contracts of employment are silent on a NRA, those that do mention it state it to be 65 and nowhere is an age greater than 65 set out.

Additionally, and more importantly there is a Comprehensive Procedural Agreement in place dated 5 September 1990.

This agreement was negotiated between SPS management, employees and Union representatives and sets out at Section 3, Clause 16.1 :-

"Employees will be required to retire from the Company's service upon reaching the age of sixty-five (65) years in accordance with the terms of the Pension, Life Assurance and Disablement Benefits Schemes."

By virtue of the TUPE regulations the terms of this Company Union Agreement transferred with the employees and forms part of their Terms and Conditions of employment since its agreement in 1990.

One of the conditions of the sale of Unbrako to DFSL was that an employee defined benefit (“DB”) pension scheme be set up to mirror the existing SPS employee pension scheme. This scheme was set up by Mercer who confirmed that the new scheme would provide identical benefits to the SPS scheme. On page 48 of the rules of the DB scheme, the NRA is stated as being “the 65th birthday of a Member”.

The established custom and practice as established both within SPS and subsequently Unbrako has been an NRA of 65. No employees ever worked beyond the age of 65.

It cannot therefore be disputed that the Normal Retirement Age of the Respondent Company is 65 and that the Complainant had knowledge of same.

Legislation

Section 34 (4) of the Employment Equality Acts 1998-2015 states;

“…. 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 reasonable justified by a legitimate aim, and (b) the means of achieving that aim are appropriate and necessary.”

The Respondent wishes to cite the following cases:

Felix Palacios De La Villa v Cortefiel Servicios SA441/05 where 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

 — 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

— 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 relies also on the case of Irish Ferries v Martin McDermott EDA1631 where a claim of discrimination on the age ground was not upheld by the Labour Court because the retirement age was collectively agreed with the union, SIPTU, and the employee was aware of the retirement age, having been advised of it through the company pension policy. It was cited in this case that:

” the court sees no merit in the complainant's argument that he had a legitimate expectation of working beyond age 65. The court finds that the complainant was at all times aware that he was a member of a pension scheme that required that he retire at age 65”.

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.”

The Respondent is not able to facilitate the request for longer working as it seeks to ensure intergenerational fairness with age diversity in its workplace. The nature of the work within the category of employment and the requirements of the business did not provide the opportunity to extend the Complainant’s employment beyond the mandatory retirement age.

The Respondent relies on the case of Fuchs and Kohler v Landhessen in C‑159/10 & C‑160/10 where the Courts of Justice of the European Union “accepted that a measure that allows for the compulsory retirement of workers when they reach the age of 65 can meet the aim of encouraging recruitment and be regarded as not unduly prejudicing the legitimate claims of the workers concerned, if those workers are entitled to a pension the level of which cannot be regarded as unreasonable”.

It should be noted in this context that the company contributed to the Complainant’s pension at a rate of 10.6% of gross pay and this was accessible to him from age 65. The Complainant also qualified for the guaranteed social welfare payment for people over 65 to cover him up to the state old age pension which he qualified for at age 66. This combination of pension and social welfare payments cannot be regarded as unreasonable.

Further, in this particular case there was no requirement to backfill the Complainant’s position as all of his tasks were absorbed by existing employees. This allowed the Respondent to dovetail the Complainant’s retirement with the recruitment of new employees allowing the Company the opportunity to meet a number of objectives intergenerational fairness, diversity, promotion opportunities etc.

The letter issued to the Complainant on 18 January 2022 sets out in detail the objective justification upon which the Respondent seeks to rely.

The Respondent has reviewed the NRA in light of changes to legislation and government policy and made the decision to retain 65 as the NRA for the following reasons.

The NRA is well established by either or both existing employment contracts, all pension scheme documentation and the Company Union Agreement.

The Respondent is loss making and has been for a number of years. Prior to Covid-19, DFSL was already operating a reduced work week. An effective 4-day week was introduced for all employees commencing at the beginning of October 2019 and continuing until August 2021.

The reduction in petrol and diesel engine production has impacted heavily on the business. Push rod production was exited completely and turbo charger components demand has been greatly reduced. Prior to 2019 the automotive and push rod markets would have typically accounted for 27% and 5% of the Respondent’s sales turnover respectively. Push rods dropped to levels which were uneconomical to continue to produce while the company still produce standard types of fasteners for use in the automotive market. However, with the continued pressure to move away from petrol and diesel engines, the automotive market for the Respondent’s products now stands at less than half of the value that it was pre-2019.

The parent company also went through a difficult time which was compounded by major flood damage in India. Re-structuring and refinancing were necessary.

The future of the Respondent business was very uncertain and was close to not having sufficient cash flow to survive around the time that the first Covid-19 lockdown arrived.

While the Respondent has improved its financial position since the first Covid-19 lockdown, it is still loss making and still in survival mode.

The Respondent sells a lot of high strength fasteners into the electronics and semi-conductor market. This is a unique business to Ireland as Ireland does not have a fastener industry per se. It is even more unique that a company operating in Ireland has won this business over Asian competition who account for most of the world's fastener sales and can offer much lower pricing.

The particular finish desired by the semi-conductor industry is a zinc-based plating. The combination of zinc plating and high strength fasteners increases the risk associated with hydrogen embrittlement which in turn can lead to catastrophic failure in application.

The Respondent agreed to develop a test for hydrogen embrittlement in conjunction with a major manufacturer of lithography equipment used in the production of semi-conductors. The project has been very successful, leading to more business from that customer’s supply chain and the prospect of further business as the industry continues to expand.

The Respondent has recruited and trained new employees into the business to cover roles within this new hydrogen embrittlement testing project (HE testing). This has been achieved by dovetailing new recruits into the business as existing employees in roles that are not critical to the survival and success of the business reach normal retirement age. One of these new recruits is the Complainant’s own son who was recruited into the new HE testing area.

Another recent retirement in the Heat Treatment department opened up an opportunity for one of the new recruits to be promoted from the HE testing area into a shift role in Heat Treatment involving extensive training and skills upgrade.

The Respondent can see further opportunities associated with the hydrogen embrittlement testing project. To take advantage of these opportunities the Respondent will need to recruit new employees into the company, who possess knowledge and skills that they currently do not have, in order to help them turn those opportunities into reality. Because of the low turnover of staff within the Company the age profile demonstrates an average age of 54 and a mean age of 56.

The Respondent is certain that further opportunities exist within the electronics and semi-conductor market which could be add-on business for the Respondent. However, the Respondent does not currently have the requisite knowledge and skillsets to identify many of these opportunities and needs to recruit.

Holding the NRA at 65 is not imposing unrealistic hardship on those retiring compared to the really tangible benefit to the company in its effort to sustain and grow employment for the workforce as a whole.

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. It further asserts that the normal retirement age within the Respondent is objectively justified by legitimate aims and the means of achieving these aims of age diversity and intergenerational fairness and the survival of the Respondent is appropriate and necessary.

It is submitted that the Respondent did not discriminate against the Complainant as alleged in the claim form and the Respondent relies on section 34(4) of the Employment Equality Acts, 1998-2015 as set out above and it is requested by the Respondent that the Adjudication Officer so finds.

At the adjudication hearing it was submitted, on behalf of the Respondent, that the Complainant was on reduced hours from November 2020 and on light duties on foot of a medical cert. The Complainant’s colleagues assisted him in his role as it was labour intensive. The Respondent asserted that it never received confirmation that the Complainant was fit for full duties.

The Respondent refuted the suggestion that the Complainant’s work did not involve manual handling. It was argued that the Complainant operated machinery that was some 80 years old, not automatic. It was asserted that there was risk involved in the operation of the machinery and two employees suffered life changing injuries previously when operating similar machinery.

The Respondent asserted that the suggestion that older workforce is a “drain” on the Respondent’s resources  was taken out of context and misquoted. The letter addressed this in the context of increased insurance premium. The Respondent knew that it needed new skills. New employees could be trained by those who have 5-10 years to retirement, there was no need to retain employees beyond retirement age.

The Respondent exhibited a skills matrix which shows that the Complainant was only trained in one specific area. The Respondent submits that he was reluctant to be trained and never diversified.

Regarding the medical assessment, the Respondent submits that it received a letter recommending light duties.

The Respondent submits that there was a day-to-day need to ensure survival, it had no resources to get new staff trained and retain others.

The Respondent submits that there were no issues regarding the Complainant’s productivity. However, out of respect to the Complainant the Respondent did not want to go into this in the Respondent’s letter. It was the matter of maintaining the Complainant’s dignity. There was new technology introduced,  the Complainant had no interest in upskilling and training. In any event, there was some 4-6 months of training required for the new technology, it was not a viable option either.

Regarding the Complainant’s assertion that no risk assessment was carried out, the Respondent submits that it has a comprehensive Safety Statement in place.

With regard to the Complainant’s assertion that the Respondent made an assumption as to the capacity of the Complainant, IBEC referred to the case of Bord Na Mona Plc v Kerr EDA2232 where it was argued that:

“It is an established fact that people’s ability to perform physically demanding work deteriorates with age, as a consequence of the natural effects of age on the human body, which was accepted by the CJEU in the case of Wolf v Stadt Frankfurt am Main (Case-229/2008and the Labour Court in Irish Ferries Limited v Martin McDermott EDA1631.”

The Respondent submits that it did not need evidence, it is accepted fact that age can affect ability to perform physically demanding work.

The Respondent submits that maintaining the company and its employees, keeping the company afloat and keeping its employees is a very legitimate aim.

The Respondent agrees that the matter needs to be considered on a case-by-case basis, also with regards to the employer.

The Respondent submits that a draft retirement policy was prepared last July (2023) but it has not been rolled out yet.

The Respondent further submits that since the Complainant’s retirement it recruited six new permanent employees and four on one-year contracts. The Respondent submits the six employees were aged mid 20s – 30s. Three of them went to HE testing, 3 went to packing, one of them was since moved to a GO position. Two employees had their contracts extended for another year. It is extremely costly to train new staff. Therefore, the Complainant’s retirement was not in the context of cost savings.

In concluding remarks, IBEC asserted that the refusal letter states clearly that the Complainant could have reverted to the Respondent if he had any queries. It was further asserted that the matter needs to be looked at on a case-by-case basis and the average age of the Respondent’s employees needs to be considered.

The Respondent asserted that it was trying to maintain the Complainant’s dignity, particularly in light of his cancer diagnosis and periods of being out sick.

It was further argued that it is fundamental to the survival of the Respondent to have a retirement age in the context of the recruitment of employees with the knowledge and ability to learn new technology and skills.  The Respondent submits that it was its preference to implement redundancies based on a skills matrix but it was because of SIPTU insistence that LIFO was followed. This led to quite high average age within the Respondent.

The Respondent also noted that another employee inquired about longer working at the relevant time. The Respondent was in contact with its insurance provider and was informed  that the cost of insurance would be very high. The other employee also retired at 65.

Summary of direct evidence and cross-examination of Mr Edward Cahill, Support Executive

Mr Cahill said that it is to the Respondent’s disadvantage that it is not physically located where it should be. The Respondent sold a lot of its production to automotive business (petrol and diesel). He said that large part of the business was wiped out overnight after the 2019 announcement that diesel cars would be eliminated by 2030. He said that Covid-19 lockdown allowed him to speak with customers and to look at how to compete.

Mr Cahill said that the HE took off. A company in Holland gave the Respondent money to train people, buy machinery etc. The Respondent needed to recruit resources with the necessary skills.

Mr Cahill said that there were some 30 people made redundant in 2010 on the last in first out basis and the net effect was that the Respondent was lacking people who could learn as majority of staff were approx. 10 years to retirement.

Mr Cahill said that as staff retired, new people were recruited but not to do what the other staff did. The new recruits had the new skills that were required. Mr Cahill said that the testing requires a high degree of concentration. It is no physical work. He said that the integrity of testing is crucial. The Respondent certifies the product. For that reason, the Respondent needs people with a high degree of knowledge, the ability to work with electronic devices, and cognitive ability to concentrate for long periods of time. Mr Cahill said that the initial training takes some four months but it is followed by an extensive period of someone “looking over your shoulder”. It is not viable to train someone who is close to retirement age.

In cross-examination Mr Cahill said that the new testing commenced in 2020. The Respondent’s engineers would have designed apparatus for testing and the testing itself. It has never been done before. Once the Respondent got the go ahead from the customer, it recruited new employees. The HE testing is done only for one customer. Mr Cahill said that the new technology is not manufacturing, it is laboratory testing.

Mr Cahill confirmed that the machine the Complainant worked at is still in production, albeit not all the time. The Respondent has more machines than GOs who are moved depending on customers’ needs. All machines predate automatic manufacturing. Mr Cahill said that there has been a decrease in the volume of production on the Complainant’s machinery since the 1990s.

It was put to Mr Cahill  that, when the Complainant was not on his usual machine, he would have moved to another department, which indicates that he had other skills. Mr Cahill disagreed. He said that there were no skills required for any of the activities the Complainant performed. These would be jobs that were performed by school kids that were hired over summer, with no skills.

Summary of direct evidence and cross-examination of Mr Joe Shanahan, Production Supervisor

Mr Shanahan said that he has been some 32 years with the Respondent. He explained that the work which the Complainant was performing was physically demanding and involved lifting up to 20kg. Mr Shanahan said that with age employees were less capable to work on the machinery.

Mr Shanahan said that on 5 January 2021 he spoke with the Complainant and it was agreed that he would be on light duties. Mr Shanahan could not recall for how long.

In cross-examination, Mr Shanahan said that when an employee comes back from sick leave, they are normally asked whether they are fit to do full duties.  He said that in January 2021 the Complainant was moved to so called “pick out”. The Complainant did return to his machine at some stage but then went ill again in April.

A brief description of the Complainant’s role was provided by Mr Seamus McGiff, CEO as follows.

The machine is over 80 years old (pre-WWII) and could hardly be described as automatic. While the steel wire is placed with a forklift, the wire has to be manually “drawn” and placed into the machine for the machine to start to pull the wire itself. The finished products are forged steel products, which are collected into a pan. The pan weights 5kg or more before being lifted and carried to a larger bin. This process needs to be repeated regularly during the day, approx. every 15 min to ensure quality is maintained. Separately the operator needs to change/ insert metal dice which weight kilos each and which requires leaning over the machine. Checking that the machine is forging well also requires leaning over the machine which requires concentration. The role is also a busy one. Mr McGiff noted that these machines were built in a different era, when safety was not to the forefront as it is now. Serious care is required in the role and a serious health risk exists as per the risk assessment carried out when preparing the Safety Statement. In the past two operators suffered life changing injuries when working on similar machines. Mr McGiff further noted that it was the first time that any operator claimed that the role is not labour intensive or did not require heavy lifting.

I have reviewed the evidence presented at the hearing and noted the respective positions of the parties. I have taken account of the submissions made by the parties, the direct evidence of the witnesses and all of the authorities invoked by the representatives.

Difference of treatment of persons on grounds of age has been prohibited since 1998, when the Employment Equality Act 1998 (“the Act”) was adopted. At European level, the equality of people regardless of age has been protected since the adoption of Framework Directive 2000/78. The European Charter of Fundamental Rights, proclaimed in the same year as the Directive, lists age among the protected grounds of discrimination and proclaims the right of the elderly to a life of dignity and independence and to social inclusion.

The Employment Equality Acts prohibit discrimination on the ground of age.

Section 6(1) of the Act provides as follows :

6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

(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”),

In Ireland there is no compulsory retirement age, and an employee has a legal right to continue working regardless of their age. However, section 34(4) of the Acts permits an employer to fix different retirement ages provided they can show that it is objectively and reasonably justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. The test for objective justification is as set out in Donnellan v The Minister for Justice & ors [2008] IEHC 467. In that case McKechnie J held:

“National measures relating to compulsory retirement ages, are not excluded from consideration under [the Directive]. Any discrimination with regards to age must, as put by that Directive, serve a legitimate aim or purpose, and the means taken to achieve that purpose must be appropriate and should go no further than is necessary, i.e., they should be proportionate”.

McKechnie J also held in this case that the imposition of retirement age should be individually assessed i.e., on a case-by-case basis.  

Further McKechnie J held that where multiple reasons are given for a compulsory retirement age, it is enough if one or more amount to a legitimate aim: “where justification is sought, and multiple reasons are given, it will be enough that one or more of the justifications advanced, amount to a legitimate aim”.

The Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017 (S.I. 600/2017) sets out best industrial relations practice in managing engagement between employers and employees in the run up to a mandatory retirement age. It also sets out a number of potential legitimate aims for setting a mandatory retirement age in the first place. 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 work force;

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

·       Succession planning.

Bolger, Bruton and Kimber, Employment Equality Law (2nd ed., Round Hall Press, 2022) listed several legitimate aims that have been recognised such as: (a) intergenerational fairness; (b) the availability of a retirement pension; (c) creating a balance of generations in the workplace; (d) the efficient planning of the departure and recruitment of staff; (e) dignity and avoiding humiliating disputes on fitness; and (f) health and safety grounds.

These are policy aims that have been endorsed by the courts as legitimate aims in a series of cases.  However, in Donnellan v The Minister for Justice & ors  McKechnie J put an emphasis on individual assessment when considering proportionality. McKechnie J said at para. 104:

“The fact that individual assessment is possible is an important consideration. Where there are a large number of people involved and it would be impractical to test every person then it may be proportional to use some form of age-proxy. Conversely, where there are few people to assess, and such could be done relatively easily it would not be proportionate to use blanket proxies so as to determine personal characteristics.”

In Köhler v Land Hessen, (Case–159/10 and Case C–160/10) the ECJ held that cost considerations cannot in themselves constitute a legitimate aim within the meaning of Art 6(1) of the Framework Directive.

Burden of proof

Section 85A(1) of the Acts 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”. 

In determination McCarthy v Cork City Council EDA082 the Labour Court pointed out that at the initial stage the Complainant is merely seeking to establish a prima facie case. Hence, 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 facts proved. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.

In Melbury Developments v Arturs Valpeters EDA0917, the Labour Court, whilst 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 significance 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. Section 85A 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.”.

It is not disputed between the parties that the Complainant retired at the Respondent’s mandatory retirement age on his 65th birthday. He had sought an extension of tenure to age 66. This had been denied. The Complainant’s employment ended because of his age.

I accept that the Complainant has established primary facts of sufficient significance to raise an inference of discrimination.

The burden of proof now shifts to the Respondent to rebut the presumption of discrimination. The Respondent must establish that:

·       a contractual retirement age of 65 formed part of the Complainant’s terms and conditions of employment;

·       that the mandatory retirement age serves a legitimate aim or purpose; and

·       the means of achieving that aim or purpose was proportionate.

Existence of a contractual retirement age

While no copy of the Complainant’s contract of employment was exhibited at the adjudication hearing, the Complainant’s submission that his contract did not stipulate a retirement age was not disputed by the Respondent.

I note that the Comprehensive Procedural Agreement dated 5 September 1990 negotiated between the Respondent and the trade unions (National Engineering and Electrical Trade Union and Services, Industrial, Professional & Technical Union) stipulates as follows:

“Retirement:

Employees will be required to retire from the Company’s service upon reaching the age of sixty-five (65) years in accordance with the terms of the Pension, Life Assurance and Disablement benefits Schemes.”

I further note that one of the conditions of the transfer of undertakings that took place in 2008 between the Respondent and the Unbrako division of SPS International Ltd. was that the employees’ defined benefit pension scheme provides identical benefits to the existing SPS scheme. The document outlining the rules of the Respondent’s pension and life assurance plan for non-exempt employed defines the NRA as being “the 65th birthday of a Member.”

The Complainant confirmed at the adjudication hearing that he was aware of the pension scheme which was concluded by way of collective bargaining with the trade union representing the Complainant and that he was aware of its contents and of its terms and conditions. The Complainant confirmed that he was aware of the normal retirement age of 65.

In Earagail Eisc Teoranta v Richard Lett (EDA1513) the Labour Court held that, 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. … 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.”

In Connaught Airport Development Limited T/a Ireland West Airport Knock v John Glavey EDA1710, the Labour Court stated that section 34(4) of the Acts, prima facie, allows for the fixing of “. . . a retirement age without contravening the prohibition of discrimination on grounds of age. The jurisprudence of the CJEU on the circumstances in which compulsory retirement is saved by Article 6 of the Directive is relevant only if the Court finds that a retirement age was in fact fixed by the Respondent and that the retirement age applied to the Complainant”.

The Court held further that:

“It seems to the Court that this custom and practice test can appropriately be applied in considering if the policy of an employer took effect as a contractual term or a condition of employment. The terms of a pension scheme may also be relied upon as either implying a term as to retirement or by incorporating the terms of the scheme into the contract. A crucial consideration in addressing the question of incorporation or implication is whether the employee knew, or ought to have known, of the term contended for.”

Therefore, an agreed mandatory retirement age of 65 was an implied term of the Complainant’s contract of employment, through the collective agreement.  In all the circumstances I am satisfied that the Respondent had a contractual retirement age in respect of the Complainant and that the Complainant knew or ought to have known of its existence.

Does the retirement age of 65 serve a legitimate aim and was the means of achieving that aim proportionate in the circumstances?

A mandatory retirement age is discriminatory on age grounds unless it is objectively and reasonably justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.

As stated by the Labour Court in Bord na Mona Plc v Kenny, EDA2232, “objective justification for interfering with an individual’s employment rights requires a proportionality assessment to balance conflicting interests that must be decided on the facts of each case”.

The Respondent set out that the operation of a mandatory retirement age of 65 was objectively justified by reference to a number of lawful aims. These were detailed in the Respondent’s response to the Complainant’s request for longer working as follows:

·       Succession Planning

While we facilitate long term employees up until their 65th birthday the work required in Operations requires working with Heavy Machinery and/or strenuous labour with dexterity and speed of movement benefiting productivity. The company needs to be able to train up new recruits to maintain profitability through productivity. This benefits the company as a whole, including pre-retirement aged employees. The company works to honour its contractual commitment to employ staff up to their contracted age, which is their Normal Retirement Date.

·       Putting in place an age balance in the workforce

Unfortunately, due to required redundancies (on a last in first out union policy) the operations workforce in Deepak Fasteners (Shannon) Limited is on the “higher than average” side with most employees being in the mid 50s upwards. We need to bring in a younger workforce so that we don’t come to a cliff edge when a group of workers decide to retire and we have not passed on knowledge to a younger cohort. This takes time to implement and cannot be left to chance that employees wont retire. This company survives on low margins and it is not a possibility to have higher staff numbers for long periods of time to learn the role. It is not a luxury the company can afford. Younger staff can come in as people retire and learn from the nearly retired to keep a continuance of company knowledge. It is also a factor of age that our insurance costs have gone up significantly recently – close to 80%, which is due to our company age factor and is a particular drain on the company’s resources. Some insurance companies did not offer cover for those over 65 when we requested.

·       Health & Safety Concerns

The work in the company is physically demanding, with fast moving parts that requires care. A loss of concentration around the equipment or the safety measures could prove fatal.

·       To encourage the Recruitment and Promotion of Young People

The Operator roles are the highest paid non office based roles in the company, and many times family members of current and retired employees or school leavers start off in the packing or outsourcing department and move on through internal promotion to Operator roles. There is a natural progression. This has been beneficial to the company and also beneficial to the employees knowing there is possibility of advancement, which also reduces staff turnover.

At the adjudication hearing, the Respondent noted that while the letter did not refer to the matter, the refusal was also considered in the context of preserving the Complainant’s dignity.

The establishment of a legitimate aim is only one step of the process and therefore it remains for consideration whether the retirement age of 65 is appropriate and necessary in respect of the Complainant. As noted above, a measure may indeed pursue a legitimate aim but may not pass the test of proportionality in any individual case. As stated by McKechnie J in Donnellan: “the measure must go no further than is required to reach the legitimate aim and must do so in the least restrictive way possible” (at [98]). A useful summary of the EU caselaw in relation to age discrimination is the persuasive authority from the UK Supreme Court in Seldon v Clarkson, Wright & Jakes [2012] UKSC 6 in which Lady Hale notes:

“It is one thing to say that the aim is to achieve a balanced and diverse workforce. It is another thing to say that a mandatory retirement age of 65 is both appropriate and necessary to achieving this end . . . [t]he means have to be carefully scrutinised in the context of the particular business concerned in order to see whether they do meet the objective and there are not other, less discriminatory, measures which would do so” (per Lady Hale at [62]).

Regarding the physical requirements of the role and the health and safety aspect, I do not accept the Complainant’s assertion that his role was not physically demanding. While no risk assessment was conducted, the Respondent gave cogent evidence, including photographic evidence of the machinery the Complainant operated which demonstrated that the role entailed the operation of machinery that required physical strength and concentration. The Respondent also exhibited a very detailed Safety Statement. AT the adjudication hearing the Complainant agreed that the job involved heavy lifting and required a high level of concentration. He acknowledged that there was some health and safety risk. Furthermore, SIPTU seemed to suggest that the Complainant did not have to remain working on the machinery he normally operated and could have been facilitated on “light duties” which indicates recognition of the physical demands of the role. I, therefore, accept the Respondent’s position that the role in question wasphysically demanding.

I note that the Respondent did not seek medical opinion of a specialist in occupational medicines to ascertain whether the imposition of a retirement age on the Complainant was justifiable as a genuine and determining occupational requirement.

However, the CJEU and the Labour Court have accepted that physical capacity deteriorates with age and that setting a retirement age is an objective and legitimate means of protecting the safety of staff, such as in the case of Irish Ferries v McDermott EDA1631 where Mr McDermott, a docker who had challenged the imposition of a retirement age of 65, argued, amongst other things that he was in good health and capable of discharging his duties. The Respondent in that matter “set out good grounds that objectively justify the selection of those ages for this category of staff. Those grounds include the arduous nature of the work which becomes increasingly difficult with age”.

In Bord na Mona Plc v Kenny EDA2232, it was stated that “It is an established fact that people’s ability to perform physically demanding work deteriorates with age, as a consequence of the natural effects of age on the human body.”

The Respondent in justifying retirement age on health and safety ground considered the demands and dangers of the actual manufacturing process.

The Respondent also asserted that it wanted to protect the Complainant’s dignity. The Code of Practice on Longer Working includes the legitimate aim of “personal and professional dignity (avoiding capability issues with older employees)”. In the Mc Dermott case, holding in favour of the employer, the Labour Court focused on the objective justification, reasonableness, the need to preserve the dignity of the employee, and the fact that a pension scheme was in place to compensate the employee. It held:

“The Court finds that terms of the pension scheme were arrived at through collective agreement with the relevant trade unions. The Court further found that the retirement age has been universally applied to this category of staff whose work is acknowledged by both sides to be arduous and physically demanding.

The Court further finds that the Respondent has set out good grounds that objectively justify the selection of those ages for this category of staff … The setting of a maximum working age of 65 at this time ensures that staff are not exposed to the embarrassment of finding themselves incapable of discharging their duties and being retired in that context rather than with dignity and respect.” 

With regard to the workforce planning and age balance,in Transdev Light Rail Limited v Chrzanowski EDA1632 the Labour Court held:

“The Court accepts that it is not unreasonable for employers to have a legitimate interest in workforce planning. In Rosenbladt v Oellerking Gebäudereinigungsge GmbH (Case C-45/09) [2011] I.R.L.R. 51 the CJEU examined the justification of a retirement age contained in a collective agreement, it held:-

"By guaranteeing workers a certain stability of employment and, in the long term, the promise of foreseeable retirement, while offering employers a certain flexibility in the management of their staff, the clause on automatic termination of employment contracts is thus the reflection of a balance between diverging but legitimate interests, against a complex background of employment relationships closely linked to political choices in the area of retirement and employment. ... It does not appear unreasonable for the social partners to take the view that a measure such [the provision containing the retirement age] may be appropriate for achieving the aims set out above".

I note that, following the redundancies in 2010 that were, on the union’s insistence, conducted on the last-in-first-out basis, the average age of the Respondent’s staff was 54 and the mean age 56. Some 26.5% of the Respondent’s employees were aged 60-65; 65.3% were aged 55 or above; and 79.6% were aged 50 or above. I accept, on the basis of the spreadsheet provided by the Respondent and not contested by the Complainant, that some 12permanent employees (24.5% of workforce) would reach retirement age within 3 years and 32 (65.3%) within ten years. I accept the Respondent’s position that a considerable portion of staff would be retiring in a short period which could leave the Respondent in circumstances where a large portion of corporate knowledge and skill would disappear. The Respondent submitted that if it does not recruit younger workforce, it might come to “a cliff edge” when a group of workers decides to retire around the same time and the knowledge will not be passed to the younger cohort.  I accept that the Respondent wished to progressively retire, recruit, and promote staff. I, therefore, accept the Respondent’s position that it had to plan staff succession to ensure that the staffing arrangements are adequate. I further accept the Respondent’s evidence that there were no exceptions to its retirement policy. I am satisfied that if a mandatory retirement age was not adhered to, this may have compounded the age imbalance further.

Furthermore, I note that the Respondent’s business model underwent significant change. The automotive market for the Respondent’s products decreased to less than half of what it was pre-2019. The Respondent has engaged in a Hydrogen Embrittlement project which is a laboratory testing as opposed to manufacturing. As a result, the Respondent’s staffing requirements have changed and the Respondent needed to adhere to its retirement policy to create a balanced workforce which also ensured that the Respondent can effectively manage the departure of staff and recruitment of a new cohort with skills that met the needs of the new project.

I also note that the Respondent’s evidence was that it explored the feasibility of extending its insurance-related benefits to employees older than 65 with its insurance providers and was informed that it would increase the insurance cost significantly.

Code of Practice

The Industrial Relations Act 1990 (Code of Practice on Longer Working ) (Declaration) Order 2017 (S.I. 600/2017) sets out best practise for managing the engagement between employers and employees in the run up to the retirement age within the employment concerned. The Code of Practice references notification procedures, the carrying out of objective assessments in the context of justifying the retirement and access to an appeals mechanism.

I note SIPTU reliance on the lack of appeal in the instant case. The Respondent asserted that the letter informing the Complainant of the decision to refuse his request clearly communicated that he could seek clarification. The Respondent also asserted that the Complainant could have made himself aware of the procedures.

In light of the submissions and evidence presented, I find that the Respondent did not comply with the principles suggested by the Code of Practice in respect the Complainant’s request to work longer.

There was no meeting held which would give both the employee an opportunity to advance the case and allowing the employer to consider it. Neither, it seems, was there a meeting at which the decision was communicated to the Complainant to help him to understand why the request has not been granted.

Additionally, to comply with the Code of Practice, the Complainant should have been afforded access to a proper appeals process. While I accept that this could have been done through the normal established grievance procedures it appears that the Complainant was not advised of same.

Conclusion

In conclusion, it is a key requirement that the employer can identify a contractual retirement policy within the organisation. There was no dispute that that a retirement age was provided for in the collective agreement between the Respondent and the trade unions and it was known to the Complainant. It was not disputed that that the Respondent has applied the policy consistently and has not allowed other employees to work beyond that retirement age.

The rationale behind the policy had been explained and the specific objective grounds why his request was being refused were put to the Complainant. The employee should have the opportunity to test these arguments before a final decision is made. Regrettably, this did not seem to be the case.

While I acknowledge the shortcomings with regards to the Code of Practice, in the overall context and based on the evidence presented to the hearing, I determine that the Respondent acted in compliance with Section 34(4) of the Act and that the retirement age it applied in this case wasobjectively and reasonably justified by legitimate aims and the means of achieving these aims were appropriate and necessary.              

I declare this complaint to be not well founded.

Retirement – age discrimination-