Complainant

Respondent

Parties

Joseph  Cunningham

Irish Rail

Complainant

Respondent

Anonymised Parties

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Representatives

Joseph Ateb, SIPTU

 Vicky Burke, Employee Relations Manager, Irish Rail

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-00060852-001

05/01/2024

On the 5th January 2024 the Complainant referred a complaint to the WRC wherein he claimed that that he was subjected to discriminatory treatment by the Respondent on the grounds of his age. The Respondent denied the Complainant’s complaint in its entirely.

The Complainant’s representative set out the background. The Complainant commenced employment with the Respondent in June 1974. He was employed as a lad-porter and later as an adult-porter. He worked in different locations and different roles during a long working history with the Respondent. The Complainant was employed on a full-time basis and was paid approximately €1,000.00 per week before deductions. He retired on the 3rd September 2023 and referred the within complaint to the WRC on the 5th January 2024. It was submitted that the Complainant was discriminated against on the grounds of his age on the basis that the Respondent did not grant him a one-year extension, failed to provide any objective justification as to why the Complainant could not be granted a one-year extension, did not respond to the Complainant’s request for the extension in a timely or professional manner and that the Respondent did not follow process set out in the Code of Practice on Longer Working.

The Complainant gave evidence that he attended a C.I.E. retirement course on the 28th March 2023 which he found to be enlightening and that two weeks after the retirement course he emailed his station manager, Mr. Mark Jolley, and asked him if he could work an extra year and retire in September 2024. According to the Complainant Mr. Jolley informed him that he would pass on the request to the Respondent’s Human Resources office.

At the hearing before the WRC the Complainant produced an email dated the 8th June 2023 from the Complainant to a SIPTU representative which the Complainant sent after attending a SIPTU National Rail Council Meeting wherein the Complainant referred to the Irish Rail retirement course which he attended on the 28th March 2023 and informed the representative that he wished to work an extra year and retire in September 2024.  The Complainant confirmed that the email was not copied to the Respondent. The Complainant was contacted by Mr. Jolley in August 2023 with bad news that the Respondent was not agreeable to offering the Complainant a one-year extension to allow him to retire on his 67th birthday.

Under cross-examination the Complainant stated that the request for an extension was in writing by email and was sent in April 2023 but that he did not have a copy of the email correspondence passing between himself and Mr. Jolley regarding the request for a one-year extension. The Complainant accepted that the only email between the Complainant and the Respondent before the WRC referencing retirement was an email dated the 28th April 2023 wherein the Complainant confirmed his retirement in September 2023 and requested annual leave entitlement due and owing to him in his last year of employment. The Complainant confirmed that he was contacted by Mr. Jolley at the end of May 2023 regarding his retirement gift and that having been presented with three options he advised Mr. Jolley what his preference would be. He accepted that through his Trade Union representatives he indicated to Mr. Jolley that he would be retiring in September 2023 and that he would attend the retirement party and that he did attend the retirement party on the 4th September 2023.

In response to questions from the Adjudication Officer the Complainant confirmed that he was a member of and was aware of the terms of the C.I.E. Pension Scheme for Regular Wages Staff for staff appointed prior to the 18th July 2022 and that at all times he was aware that the normal retirement age was 66 and that he would be required to retire on his 66th birthday on the 3rd September 2023.

Submissions on behalf of the Respondent

The Complainant commenced employment with the Respondent in September 1977 as a Signalman in Drogheda. He was regularised in March 1979 and was enrolled in the company Welfare Scheme and Wages Grade Pension Scheme. When the Complainant joined the C.I.E. Pension Scheme in 1979 he was provided with an information booklet relating to the Pension Scheme. Page 4 of the Pension Scheme states that the normal age of retirement is 65. In 2016, the Pension Scheme was amended by S.I. 63/2016 such that the normal retirement age was 66.

In March 2004, the Complainant was assessed by the C.I.E. Medical Officer and was found to be permanently unfit for duty as a Signalman. Following discussions between management and the Chief Medical Officer, the Complainant was reasonably accommodated to a position of Station Operative in Balbriggan Station where he performed duties such as selling tickets, light cleaning and waving off trains.

In 2011, all employees were issued with a copy of the Employee Handbook and a letter relating to their terms and conditions of employment.

The Complainant made no formal representations to work beyond the company’s mandatory retirement age. He made a request to HR for annual leave due to him from his first year of service in advance of his retirement. At no point did he make any request for longer working. The request regarding annual leave was granted and the Complainant was paid the value of the annual leave. The Complainant reached 66 years of age on the 3rd September 2023 and exited the Respondent organisation.

The Respondent submitted that the Employment Equality Act 1998 as amended requires a complainant to establish a comparator and that no named comparator has been provided by the Complainant. It was the Respondent’s position that all employees, who are members of the Pension Scheme, must retire at age 66.

The Respondent submitted that the Complainant failed to discharge the burden of proof and consequently, the claim cannot succeed. Reference was made to the case of Cork City Council v McCarthy EDA0821 regarding the test for discrimination and the requirement to establish a prima facie case and submitted that it is incumbent on the Complainant to establish facts which give rise to the presumption of discrimination and that all the conclusions which may be drawn when determining if a prima facie case has been established must be considered. Although in McCarthy, the court looked at whether the age of the complainant (the protected ground) “was anything other than a trivial influence in the selection process” the Respondent submitted that this must still be judged on the balance of probabilities. In the instant case the Complainant was not selected for retirement, he retired upon reaching the mandatory retirement age for his role.

The Respondent relied on section 34(4) of the Employment Equality Act 1998 and set out the existence of health and safety grounds. The Respondent is a transport provider governed by the Railway Safety Act 2005. Section 93(d) of the 2005 Act provides a definition of a safety critical task. Given the safety critical nature of the work in the Respondent, a mandatory retirement age is imposed on all staff to ensure that they are in a position to perform their roles safely, to protect their colleagues and members of the travelling public. The Complainant’s duties involved the waving off of trains, which is deemed safety critical. The Respondent referred to previous WRC cases on age discrimination in 2018 (ADJ-00009268) and 2019 (ADJ-00009265). Both cases were taken by safety-critical employees of the Respondent who, as members of the Pension Scheme, were subject to mandatory retirement upon reaching the age of 66. In both cases the adjudicator rejected the claims. Reference was also made to the Labour Court determination in  Transdev Light Rail Limited v. Peter Doody (EDA243) wherein the Court found that the prior determination in Transdev Light Rail Limited v. Michael Chranowski was a decision in rem, i.e. a decision on a larger legal principle and not confined to a specific individual case. The Respondent submitted that two virtually identical cases have previously been coursed through the State’s industrial machinery and this complaint should be estopped on the basis of res judicata.

According to the Respondent the Complainant retired in September 2023 at the age of 66. It is the Respondent’s policy that members of the retirement scheme of which the Complainant was a member retire at the normal age of retirement of 66. The Respondent applies this policy to ensure compliance with this statutory requirement and to ensure all employees are treated in a fair and consistent manner.

At no stage did the Complainant make any official representations to the Respondent in relation to his request to work beyond the age of 66. His only representations were verbal conversations with his Trade Union officials who informed him that the retirement age was 66. The Complainant accepted this and informed his station manager that he would retire on his 66th birthday. The Respondent has a grievance and disciplinary policy in which there are clear steps on how to progress a complaint if an individual is aggrieved. The procedure clearly outlines that if a grievance cannot be settled by the employee’s immediate supervisor, “the employee(s) or their trade union representative may submit, in writing, the grievance to the immediate local manager”. The Complainant nor his Trade Union representative ever submitted any grievance in writing to the Respondent. The Respondent’s first notification of an issue was upon receipt of the WRC referral on the 10th January 2024. The Complainant was granted annual leave which was due to him from his first year of service in the Respondent. This leave is only granted in the final year of an employee’s service. At no stage did the Complainant make any representations to work longer than 66. The Complainant, along with other recently retired colleagues, was invited to a retirement event in Inchicore in October 2023, which he declined however he accepted a retirement gift, which was delivered to his address. He also attended his local retirement party which was organised by his line manager Mr. Jolley.

The Respondent denied that the Complainant was discriminated against. The Respondent submitted that the Complainant was treated in a fair and equitable manner consistent with how all employees are treated in relation to retirement.

Evidence of Mark Jolley – Station Manager

Mr. Jolley is a station manager and was at all material times the Complainant’s line manager. He stated in evidence that the first time he became aware that the Complainant was seeking an extension for a further year was when he received the WRC complaint form under cover of letter dated the 10th January 2024. Mr. Jolley denied that he received an email from the Complainant in April 2023 requesting an extension to work beyond the age of 66 or that he informed the Complainant that he would make enquiries with the Human Resource department regarding an extension beyond the retirement age. He denied ever informing the Complainant that he had bad news regarding his request for an extension beyond his 66th birthday whether during a telephone call in August 2023 or at any time.

Mr. Jolley stated that in early 2023 he was aware that the Respondent had been in contact with the Complainant regarding his retirement in September 2023 and that the Complainant had been notified of a pre-retirement course which the Complainant attended on the 28th March 2023.

On the 28th April 2023 Mr. Jolley received an email from the Complainant wherein the Complainant stated that he was applying for cessor annual days and he noted his retirement date. There was no mention in the email that the Complainant was seeking an extension of his retirement age. Mr. Jolley stated that this was the only email he received from the Complainant in relation to his retirement. Mr. Jolley contacted the Complainant on the 30th May 2023 and presented him with three gift options and the Complainant indicated his preferred option. There was further contact on the 17th August 2023 regarding the retirement party. During the course of this conversation the Complainant informed Mr. Jolley that he did not know if he would be attending the retirement party and that his Trade Union representatives were dealing with the matter on his behalf. Thirty minutes after the initial telephone call Mr. Jolley spoke with the Complainant again and the Complainant confirmed that he had spoken with his Trade Union representatives and he would be retiring on the 3rd September 2023. The Complainant retired on the 3rd September 2023 and he attended the local retirement party on the 4th September 2023. Mr. Jolley did not hear anything further until he received the correspondence from the WRC on the 10th January 2024 enclosing a copy of the Complainant’s WRC complaint form.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by and on behalf of the parties at the hearing.

Relevant Law

Discrimination in accordance with the Employment Equality Act 1998 (as amended) (hereinafter referred to as “the 1998 Act”) is set out in section 6 and states:

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

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

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

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

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

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

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

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

Section 85A of the 1998 Act provides as follows:

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

The effect of section 85A of the 1998 Act above is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, the responsibility is on the Complainant to show that, based on the primary facts, he was discriminated against because of his age, as he asserted.

The Labour Court’s (and WRC’s) approach to this issue and the test for applying section 85A of the 1998 Act is well settled in a line of decisions of both bodies starting with the Labour Court’s Determination in Mitchell v. Southern Health Board [2001] 12 E.L.R. 201 wherein the Labour Court stated:

“the claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only where these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

In Minaguchi v. Wineport Lakeshore Restaurant No. EDA034 “the primary facts” were defined as follows:

“It appears to me that the three key elements which need to be established by a claimant to show that a prima facie case exists are:

(i)               that she/he is covered by the relevant discriminatory ground(s)

(ii)              that she/he has been subjected to specific treatment and

(iii)            that this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.

I have also have regard to the case of Mary Margetts v. Graham Anthony & Company Limited EDA038 referred to by the Respondent who submitted that “[t]he mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

The Labour Court, in its decision in Arturs Valpeters v. Melbury Developments Ltd [2010] 21 E.L.R. 64, addressed the onerous nature of the burden of proof:

“This requires that the 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 speculations 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 proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Labour Court has also consistently stated that:

“The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. 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 proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts”: Kieran McCarthy v. Cork City Council EDA082

Once the prima facie case is established, the Respondent must rebut the prima facie case. This will require cogent evidence.

The Complainant in the instant case asserted that he was discriminated against on the grounds of his age on the basis that in April 2023 he requested a one-year extension of his contract of employment beyond the retirement age, the Respondent did not grant him the said extension, the Respondent failed to provide him with objective justification as to why he could not be granted a one-year extension, did  not respond to the Complainant’s request for the extension in a timely or professional manner and failed to follow the process as out in the code of practice on longer working.

The Respondent denied the Complainant’s complaint in its entirety and submitted that the Complainant did not seek an extension of his contract of employment beyond the normal retirement age of 66 but that if it was found that he did, which was denied, that there was a normal retirement age capable of objective justification both by the existence of a legitimate aim and evidence that the means of achieving that aim are appropriate and necessary.

I find that the evidence of the Complainant that he requested an extension of his contract of employment beyond the normal retirement age of 66 to his 67th birthday from his station manager Mr. Jolley in April 2023 lacked credibility and was not supported by documentary evidence. On the other hand, I found Mr. Jolley to be a credible witness and I resolve the conflict in evidence in favour of the Respondent. On the balance of probabilities, I find that while the Complainant raised the matter with his Trade Union representatives by email dated the 8th June 2023 he did not request a one year extension of his contract of employment beyond the normal retirement age of 66 to his 67th birthday from his station manager Mr. Jolley, whether by email or at all, and Mr. Jolley did not give assurances to the Complainant that he would make representations to the Respondent’s Human Resource department on the Complainant’s behalf nor did he contact the Complainant with “bad news” that the request had been denied.  

I further accept the evidence presented on behalf of the Respondent that that the first time it became aware that the Complainant was alleging that the Respondent had denied him the opportunity to work beyond the retirement age of 66 or failed to provide the Complainant with any objective or reasonable justification as to why it would not grant the Complainant an extension of his contract of employment was when Mr. Jolley received the WRC complaint form under cover of letter dated the 10th January 2024.

It was common case that the Complainant was a member of the Respondent’s Pension Scheme since 1979. The Pension Scheme documentation clearly states that the retirement age of 66. The Complainant confirmed that he was at all times aware that the retirement age was 66 years of age. The Complainant was aware that he would retire on his 66th birthday, 3rd September 2023. The Complainant confirmed that the Respondent contacted him in early 2023 regarding his retirement in September 2023 and that he attended a pre-retirement course organised by the Respondent on the 28th March 2023, six months in advance of his retirement date. In evidence the Complainant described the course as “enlightening”. One month after the course, on the 28th April 2023, the Complainant confirmed by email that he would be retiring in September 2023 and he requested cessor annual leave days which he accepted in evidence he was only entitled to claim in his last year of employment. On the 30th May 2023 Mr. Jolley contacted the Complainant and presented him with three retirement gift options and the Complainant indicated his preference. There was no documentary evidence before the WRC that the Complainant made representations to the Respondent to work beyond his retirement age nor did he raise a grievance prior to retirement and on the balance of probabilities I find that the Complainant was treated in the same manner that all employees of the Respondent who are member of the Pension Scheme are treated in relation to retirement.

In accordance with the case law referred to above, in order to succeed in a complaint of discrimination, the Complainant must show that he was discriminated against because of his age. Taking into consideration the evidence of the Complainant and Mr. Jolley on behalf of the Respondent, the oral and written submissions and the documentation submitted by the parties I find that the Complainant has failed to establish facts on credible evidence that the Respondent discriminated against him on the grounds of his age. Therefore, I cannot find that he has established a prima facie case of discrimination.

In all of the circumstances I find that the Complainant has failed to establish, on the balance of probabilities, a prima facia case of discrimination on the grounds of age therefore the complaint is not well-founded.