EDA2535

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00045672 (CA-00056450-001)

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 9 August 2024. A Labour Court hearing took place on 11 March 2025.

The following is the Determination of the Court.

DETERMINATION:

This is an appeal by Mr Nigel Heafey (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00045672, 10 July 2024) under the Employment Equality Act 1998 (‘the Act’). Notice of Appeal was received in the Court on 9 August 2024. The Court heard the appeal in Waterford on 11 March 2025.

Factual Background

The Complainant is a Driver Mechanic in the Retained Fire Service and has been employed by Kilkenny County Council (‘the Respondent’) since November 2000. He is paid an annual retainer and paid separately for callouts. The Complainant was stood down by the Respondent for health reasons from 1 December 2022 but has now returned to active duty with the Retained Fire Service since 10 October 2024. However, the Complainant received payment only during the first six-month period of his absence for health reasons, and that payment consisted only of his retainer allowance. He was forty-nine years of age when he was stood down. He submits that he was thereby treated less favourably on the age ground than a colleagues in similar circumstances, over the age of fifty-five had been treated as that colleague qualified for payment of his retainer plus an average payment based on his previous thirteen weeks of callouts when stood down for medical reasons.

Evidence

The Complainant declined to give sworn evidence to the Court in circumstances where there is no material conflict between the Parties in relation to the facts underlying the within appeal.

Mr Frank Dunne

Mr Dunne told the Court that he is a Senior Assistant Chief Fire Officer with the Respondent and the Operations Officer for Kilkenny Fire Service. In his evidence he referred to a Circular of 2003 (Circular Letter LG(P) 19/03) and a related collective agreement which confirmed that the retirement age for Retained Firefighters would remain at fifty-five years but provided for the continued employment of firefighters on a year-to-year basis beyond the age of fifty-five up to age fifty-eight, subject to each application for extended working meeting stated medical and fitness criteria. According to the witness, the collective agreement in question expressly provides that a Retained Firefighter aged over fifty-five who is stood down for medical reasons is to be paid both the retainer and the average value of callouts until their current one-year contract expires following which they are obliged to retire unless they pass a medical assessment. The witness said that there is no corresponding provision in the agreement for Retained Firefighters under fifty-five years of age. He opined that this is because such an individual could have several years of employment remaining before reaching the mandatory retirement age of fifty-five.

Circular Letter LG(P) 19/03

The Circular provides, inter alia, that the Reports (appended to it) of the Expert Groups on Retirement Age and Retirement Gratuity for members of the retained fire service are binding on local authorities.

Paragraph 4 of the Findings section of the Report of the Expert Group on Retirement Age provides:

“Every Firefighter who wishes to exercise the option to remain in the employment beyond age 55 must inform the employer in writing of his intention not later than six months before his birthday in each year from age 54. The employer would then arrange for an occupational health test. If passed fit for duty the Firefighters would remain in the employment subject to completing the same process for each of the succeeding years up to a maximum of 3 tests. Where a Firefighter is not passed fit for duty he will immediately be informed of the result of his test and placed on paid leave (average earnings based on the previous 13 weeks) ….”.

The Law

Section 6 of the Act outlines the nine ‘discriminatory grounds’ (including ‘the age ground’) and describes when discrimination on any of those grounds is deemed to have occurred:

6. Discrimination for the purposes of this Act

(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—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different [civil] status (in this Act referred to as “the [civil] status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

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

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”).

Section 33 of the Act makes provision for ‘positive action’ in certain circumstances:

“33. Positive action permitted

Nothing in this Part or Part II shall render unlawful measures maintained or adopted with a view to ensuring full equality in practice between employees, being measures—

(a) to prevent or compensate for disadvantages linked to any of the discriminatory grounds (other than the gender ground),

(b) to protect the health or safety at work of persons with a disability, or

(c) to create or maintain facilities for safeguarding or promoting the integration of such persons into the working environment.”

Section 34 of the Act provides for savings and exceptions on certain grounds, including the age ground:

34. Savings and exceptions related to the family, age or disability

(1) In relation to the discriminatory grounds specified in paragraphs (a) to (h) of section 28(1), nothing in this Part or Part II shall make it unlawful for an employer to provide—

(a) a benefit to an employee in respect of events related to members of the employee's family or any description of those members,

(b) a benefit to or in respect of a person as a member of an employee's family,

(c) a benefit to an employee on or by reference to an event occasioning a change in the civil status of the employee, or

(d) to an employee who has family status a benefit intended directly to provide or assist in the provision, during working hours, of care for a person for whom the employee has responsibility as mentioned in paragraphs (a) and (b) of the definition of “family status” in section 2(1).

(2) In subsection (1) “employer” includes an employment agency, a person offering a course of vocational training as mentioned in section 12(1) and a regulatory body; and accordingly references to an employee include—

(a) a person seeking or using any service provided by the employment agency,

(b) a person participating in any such course or facility as is referred to in paragraphs (a) to (c) of section 12(1), and

(c) a person who is a member of the regulatory body.

(3) In an occupational benefits scheme it shall not constitute discrimination on the age ground for an employer—

(a) to fix ages for admission to such a scheme or for entitlement to benefits under it,

(b) to fix different such ages for all employees or a category of employees,

(c) to use, in the context of such a scheme, age criteria in actuarial calculations, or

(d) to provide different rates of severance payment for different employees or groups or categories of employees, being rates based on or taking into account the period between the age of an employee on leaving the employment and his or her compulsory retirement age,

provided that that does not constitute discrimination on the gender ground.

(3A) In subsection (3)—

“occupational benefits scheme” includes any scheme (whether statutory or non-statutory) providing for benefits to employees or any category of employees on their becoming ill, incapacitated or redundant but does not include any occupational pension scheme providing for pensions, gratuities or other allowances payable on retirement or death;

“severance payment” means a sum paid voluntarily by an employer to an employee otherwise than as pay when the employee leaves the employment.]

(4) Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees if—

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

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

(5) Without prejudice to the generality of subsection (3), it shall not constitute discrimination on the age ground to set, in relation to any job, a maximum age for recruitment which takes account of—

(a) any cost or period of time involved in training a recruit to a standard at which the recruit will be effective in that job, and

(b) the need for there to be a reasonable period of time prior to retirement age during which the recruit will be effective in that job.

(6) Where immediately before the relevant day, arrangements are in force in any employment for age-related remuneration, it shall be a sufficient compliance with this Part and Part II if those arrangements are brought to an end within the period of 3 years beginning on the relevant day.

(7) It shall not constitute discrimination on the age ground for an employer to provide for different persons—

(a) different rates of remuneration, or

(b) different terms and conditions of employment,

if the difference is based on their relative seniority (or length of service) in a particular post or employment.

(7A) Nothing in this Act invalidates any term in a collective agreement, whenever made, to the effect that in particular circumstances, where length of service would otherwise be regarded as equal, seniority in a particular post or employment may be determined by reference to the relative ages of employees on their entry to that post or employment.

(8) In this section “the relevant day” means the day appointed for the coming into operation of section 29.

Discussion and Determination

Having carefully reviewed Circular Letter LG(P) 19/03, and having considered the Parties’ written and oral submissions in relation to it, the Court finds that the sick pay arrangements applied to Retained Firefighters availing of extending work between age fifty-five and fifty-eight in the Report of the Expert Group appended to the Circular, come within scope of section 34(3) of the Act i.e. the scheme in question qualifies as an exempted occupational benefits scheme. It follows that the difference in treatment on grounds of age the Complainant complains about does not constitute discrimination on the age ground (or at all) having regard to section 34 of the Act.

The decision of the Adjudication Officer is upheld and the appeal fails.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
AR	______________________
4th April 2025	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Aidan Ralph, Court Secretary.