Complainant

Respondent

Parties

Colette  Quinn

An Garda Siochana

Complainant

Respondent

Parties

Colette Quinn

An Garda Síochana

Representatives

Daniel Springs & Co/Conor Power SC

Joseph Dolan Chief State Solicitor's Office/ Des Ryan BL

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-00055317-001

28/02/2023

This case was listed for hearing in February 2024 and both parties made submissions; however, as a case before the Supreme Court was pending that was relevant it was put back for a further date and both parties agreed with the postponement, the following letter was sent to the parties:

Further to the hearing on the 20th of February 2024 both parties made reference to the pending Supreme Court Judgement relating to Mr Seamus Mallon an appeal of a High Court determination that rejected his claim.

The appeal relates to whether a mandatory retirement age is compatible with EU law. I note that the appeal will focus on whether mandatory limits can be set for defined groups based on objective grounds in contrast to individual characteristics on an individualised basis.

As this decision may be relevant to the matter before the Commission it was agreed with the parties that no decision will be made over the coming months in anticipation of the Supreme Court decision. However, a remote case management hearing maybe scheduled so that the matter does not remain parked for too long a period.

The Complainant alleges that she was discriminately dismissed on her 60th birthday, the 20th of September 2022, on the ground of age, when she was forced to retire at age 60 without objective justification. The Complainant held the position of Chief Superintendent as Head of the Garda Youth Diversion Bureau. Her successor a civil servant at Principal Officer grade is not obliged to retire until aged 70.

A key finding of Mallon v Minister for Justice [2024] IESC 20 at paras 76 to 77 was that the absence of individual assessment does not make the measure disproportionate:

 “on a case by case or role by role basis does not on its own, render a measure disproportionate…and that the “consistent and systematic” and “coherent” application of such rules is not simply permissible but is in fact an important element of the proportionality analysis under Article 6(1) of the Directive. Nothing in the CJEU jurisprudence suggests that an employer is required to justify the application of a general retirement rule to an individual employee. Such a requirement would of course substantially negate the benefit of having such a rule in the first place”

It is argued by the Complainant that this case differs from Mallon arising from the inconsistent application of pension rules where one employee in the same role can work until 70 and the other cannot.

However, in Mallon theSupreme Court found that in so far as a measure had a legitimate aim or objective there was wide latitude given to an employer to set the mandatory retirement age.

That age in time may change for a legitimate policy reason and that change does not negate the policy previously applied in so far as the policy is proportionate.

The Civil Servant who was appointed to the Complainant’s role has a retirement age of 70. It was also the case that another Civil Servant could have been appointed to the role who had no mandatory retirement age. This arises as overtime policy changes were made concerning when a Civil Servant must retire. The fact that two colleagues doing the exact same job could have different retirement ages was not deemed to be fatal by the Supreme Court due to varying retirement ages; in so far as the policy for the respective Cohort of Civil Servants at different entry dates into the service was applied consistently and was based on a legitimate policy aim made at the time.

A key finding was that there was no requirement to carry out an individual assessment concerning the capacity and ability of an employee to continue in service.

Mallon referred to the consideration of financial hardship when exercising the right to end the employment contract having regard to the relevant mandatory retirement age. That does not apply here and was not argued.

At the heart of this referral must be the legitimate policy objective of a mandatory retirement age at 60, when a role previously held by the Complainant and now held by a Civil Servant who could retire at 70?

The Complainant joined the Garda Síochána in May 1984. She retired from the service in September 2022 on her 60th birthday in line with the mandatory retirement age.

At Superintendent rank, she was appointed to Director of the Diversion Programme under the Children’s Act 2001. This is a statutory role which she held for about 10 years.

From about 2018 she also held the role of Head of the Garda Youth Diversion Bureau until her retirement.

The Complainant is highly qualified and was called to the Bar in 2010 and completed level 9 qualifications in Management and Conflict Interventions.

The Complainant did not seek an extension provided for within the Gardaí as she was led to believe that Superintendents at the time were not being approved for service extensions.

A civil servant at Principal Officer level succeeded the Complainant and this was the first time that a civilian took on the role of Head of Garda Youth Diversion.

Following her retirement, the Complainant’s position was not advertised, and the Complainant did not have the opportunity to apply for the vacancy.

If it was the intention of An Garda Síochána to civilianise the role, a competition should have been run and the Complainant would have had the opportunity to apply for the role and continue her work as a Principal Officer.

In this case as there was no legitimate employment policy or succession plan that could be reasonably justified, and the means of appointing her successor cannot be objectively justified by a legitimate aim, it follows that the Complainant was discriminately dismissed on the 20th of September 2022 on the ground of age upon attaining the age of 60. She was treated less favourably than her comparator, the Principal Officer who is allowed to work in the same role until age 70.

As the replacement or successor to the Complainant was not a member of an Garda Síochána the Garda Commissioner cannot rely on any argument that there is a long established contractual/statutory retirement age of 60 based on a legitimate employment policy and succession planning and that the means of achieving such an aim is appropriate and necessary.

The Complainant was subject to a strict age limit. The Civil Servant not alone has a mandatory retirement age of 70; that can be extended up to the age of 72 as provided by section 3 of the Public Service Superannuation (Age of Retirement) Act, 2018:

3A. (1) A relevant public servant shall retire from being a public servant at the latest upon attaining the age of 70 years or, where a higher age is prescribed by order under subsection (2), upon attaining that higher age.

(2) Subject to subsection (3), the Minister may, by order, prescribe an age, being higher than 70 years, upon the attainment of which all relevant public servants shall, at the latest, retire.

(3) Before making an order under subsection (2), the Minister shall have regard to—

(a) the likely effect of the order on recruitment, promotion and retention of staff in the public service as a whole,

(b) the pensionable age applicable at the time of making the order,

(c) any evidence of an increase in normal life expectancy in the State made available by the Central Statistics Office from time to time,

(d) the likely cost (if any) to the Exchequer that would result from the order,

(e) any order made under section 13(2) of the Act of 2012, and

(f) such other matters as the Minister considers appropriate.

The Complainant was subject to a strict age limit without any transparency which could have facilitated an application for an extension of her forced retirement age.

Referring to Article 15, the CJEU in joined cases C-159/10 and C-160/10 Fuchs and Kohler v Land Hessen [2011] ECR I-06919 stated:

“It follows that particular attention must be paid to the participation of older workers in the labour force and thus in economic, cultural and social life.”

Section 34(4) of the Employment Equality Act provides that discrimination will not occur if the age fixed for retirement is:

·       Objectively justified by a legitimate aim

·       The means of achieving that aim are appropriate and necessary.

In Fuchs and Köhler, the Court held that ‘mere generalisations’ do not meet the requirement threshold, and which was affirmed by the High Court in Mallon.

While the legislative provision itself may not describe the precise legitimate aim being pursued; however, that transparency must be evident having regard to the general context of the measure concerned. In this case it is not transparent as the successor can work to age 70.

In Case C-388/07 Age Concern England the CJEU held that:

“65…Article 6(1) of Directive 2000/78…imposes on Member States the burden of establishing to a high standard of proof the legitimacy of the aim relied on as a justification.”

In this case that threshold has not been met and the Complainant is entitled to orders to remedy the unlawful discriminatory treatment.

Phelan J in Mallon stated that “different treatment…will not constitute discrimination on age grounds where a test of objective and reasonable justification linked to a legitimate aim is identified and the means of achieving that aim is appropriate and necessary.” (para 53) [2022] IEHC 56. This was affirmed by the Supreme Court.

Phelan J had accepted from the evidence that the legitimate aims to be achieved by a mandatory retirement age at 70 was connected with forward planning for retirement, promotion, recruitment, achieving an age balance, intergenerational fairness and consistency.

The applicant in Mallon was granted leave to appeal to the Supreme court on several grounds including the following:

“2. I there a test of compatibility required in assessing the validity of mandatory retirement ages; and if so what factors are validly to be considered, such as age, health or other indicia?

3. Can such mandatory limits be set in relation to define groups based on general probabilities of age, health and competence, as opposed to individual characteristics on an individualised assessment?”

The Supreme Court upheld the High Court judgement and at paragraph 62(5) identified the following legitimate aims:

(5) A variety of often overlapping aims have been recognised as legitimate in this context, including:

(i) promoting the employment of younger people and facilitating their entry to the labour market (Palacios de la Villa, para 62-66 (workers in the textile trade))

(ii) promoting the access of young people to the professions (Petersen, para 68 (public dentists))

(iii) establishing an age structure that balances younger and older workers (Joined Cases C-250/09 and C-268/09 Georgiev, para 45 (university lecturers); Joined Cases C-159/10 and C-160/10 Fuchs & Köhler, paras 49 and 50 (public prosecutors); Case C-286/12 Commission v Hungary, para 62 (judges, prosecutors and notaries))

(iv) sharing employment between the generations (Case C-45/09 Rosenbladt, paras 43-45 (commercial cleaners))

(v) improving personnel management by enabling efficient planning for departure and recruitment of staff (Fuchs & Köhler, paras 47 and 50)

(vi) preventing possible disputes concerning employees’ fitness to work beyond a certain age (Fuchs & Köhler, para 50)

(vii) avoiding employers having to dismiss employees on the ground that they are no longer capable of working which may be humiliating for the employee (Rosenbladt, paras 43 & 45; Case C-141/11 Hörnfeldt, paras 26 & 30 (postal workers))

(viii) standardising retirement ages for professionals in the public service (Commission v Hungary, para 61).

The Court was satisfied that CJEU jurisprudence is clear that the avoidance of an individual assessment as to capacity to continue working after a retirement age in order achieve a legitimate aim was appropriate and necessary. Collins J at para [77] states:

Accordingly, I agree with the State Respondents' submission to the effect that, provided that the aims sought are legitimate, and that the measure in question is proportionate, a mandatory retirement rule does not offend the prohibition on age discrimination set out in the Directive notwithstanding that it does not entail an individual assessment of those subject to such rule. [26] That is certainly the position as a matter of general principle. It may be that different considerations apply in the context of lower-than-normal retirement ages specific to a particular occupation (such as airline pilots) which are sought to be justified by reference to Article 4 of the Directive. But this is not such a case.”

The legitimate aim can be derived or inferred from the general context of the measure and does not have to specified in a statute or collective agreement:

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

The Supreme Court noted that CJEU jurisprudence following Donnellan v Minister for Justice and Law Reform and Others [2008] IEHC 467 does not support individual assessments.

In Mallon, the Supreme Court held that the consistent and systematic and coherent application of mandatory retirement rules is an important element of the proportionality analysis under the Directive.

The Court further recognised that a decision to adopt a mandatory retirement age is a matter for the relevant competent authority and the Courts have a limited role insofar as they are concerned with whether that decision is reasonable.

The Respondent justifies the mandatory retirement age of 60 in this case based on the legitimate aim of:

·       The importance of maintaining equality and fairness for all members in terms of an equal retirement age.

·       The need to ensure maximum operational and administrative efficiency.

·       A negative impact on promotion and succession planning

·       Potential Industrial Relations claims relating to different retirement ages.

The Respondent submits there has been no discrimination and that the policy is implemented coherently and is proportionate and is reasonable and objectively justified.

The is no doubt that the Complainant is a very competent manager and well qualified to continue in the role other than she was required to retire at 60. In Mallon the Supreme Court stated that a mandatory retirement age as a legitimate aim must by definition justified be based on reasons that apply to all employees and not based on individual assessment. The mandatory retirement age in this case is objectively justified it is argued, to ensure that there is a consistency in retirement ages, for succession and promotion purposes and also to provide for administrative and operational efficiencies as retirements arise. It is argued that to change the policy for a particular grade or colleague would create internal relativity issues and potential industrial relations disputes arising from the inconsistency.

In this case the retirement age was relatively young at age 60. This contrasts with Mallon where the mandatory retirement age was 70. However, the nature of the work is also challenging and demanding. The latitude given to a competent authority is wide and the role of a court or tribunal is to decide if the measure is unreasonable. That must be viewed having regard to the wider policy considerations and aims for that organisation and cannot be viewed partially or limited to one role.

The crux of this claim relates to the fact that a successor a civilian could work until he was 70. However, that successor came from the civil service cohort and not the Gardaí. That is significant as the powers of a Garda are very different to those of a civil servant. There can be an overlap in an organisation in administration and who carries out that administrative role, whether a civil servant or a Garda. That overlap and where each cohort has very different terms and conditions does not undermine the consistency and coherence of having a different mandatory retirement age for each cohort. The powers and responsibilities of an Gardaí are fundamentally different to a civil servant. Even where the role is quasi-judicial, as was the case here, that attribute does not inherently negate the wider legitimate aim to have a standard mandatory retirement age for each Cohort that is different. That arises as the activities and career path of a member of an Garda Síochána are so different to that of a civil servant. There are overlaps; however, the differences in the two very distinct cohorts, with very different organisation and public service objectives, does allow for different retirement ages, even if work can be done sometimes by a Garda and other times a civil servant, in so far as the different mandatory retirement ages are objectively justified.

The reason detailed by the Respondent are reasonable in so far as they are applied consistently and coherently as that is a measure of proportionately.

While there was no competition for this role and that in turn denied this Garda an opportunity to compete for the civilian position, which was at face value unfair, that does not negate the legitimate aim of the mandatory retirement age within a wider organisational context. It is not reasonable to narrow that objective to a comparator for one role.

It is argued that in this case the retirement gave rise to no promotional opportunity or succession aim. The aims are broad and cannot be limited to one role. The removal of one role from a pool of promotional opportunities does not negate the possibility of a new role with the same rank. The legitimate aim being pursued are organisational and individual roles and jobs will change due to technology and reorganisation. The organisational aims are not undermined based on one role changing to a civilian role and where that role has a mandatory retirement age of 70 because it is a civil servant who now holds that role.

It is argued that the civil servant is allowed to have the mandatory age extended. The extension of service is provided for in statute, based on transparent criteria as detailed at section 3 of the Public Service Superannuation (Age of Retirement) Act, 2018. In contrast the Complainant was subject to a strict age limit without any transparency which could have facilitated an application for an extension.

The Respondent denied that there is no facility for an extension and the fact is the Complainant never applied for one based on an assumption that it would not be approved.

While the legislative provision itself may not describe the precise legitimate aim being pursued; however, that transparency must be evident having regard to the general context of the measure concerned.

In this case the complainant argues the legitimate aim being pursued it is not transparent as the successor can work to age 70.

In Case C-388/07 Age Concern England the CJEU held that:

“65…Article 6(1) of Directive 2000/78…imposes on Member States the burden of establishing to a high standard of proof the legitimacy of the aim relied on as a justification.”

The question arises is the legitimate aim being pursued with transparency and as determined in  Fuchs and Köhler, the Court held that ‘mere generalisations’ do not meet the requirement threshold, and which was affirmed by the High Court in Mallon.

While mere generalisations won’t suffice the requirement to ground a legitimate aim can be met arising from what Collins J stated in Mallon:

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

What this means is having regard to the nature of work carried out by an Garda Síochána and the grading structure within this very large organisation; are the aims reasonable and the measures deployed proportionate so that they are achieved. On balance having regard to the competency given to the authority to make those decision, the mandatory retirement age at 60 was based on a legitimate aim and that policy was reasonable.

I note that the mandatory retirement age for an Garda Síochána has increased to age 62 as provided for by the Courts, Civil Law, Criminal Law and Superannuation (Miscellaneous Provisions) Act 2024, and is aimed at supporting Garda recruitment and retention. That change again does not undermine the previous policy as it was based on the circumstances at time and cannot be judged based on emerging challenges and workforce policy revisions.

Based on the facts of this case I find that the Complainant was not discriminated against as the measure of a mandatory retirement age at 60 was reasonable and proportionate. The fact that her last role was filled by a civilian who can retire at 70, does not create incoherence and inconsistency having regard to the powers, unique roles and challenges of an Garda Síochána when compared to an entirely different cohort being civil servants, where some overlap can exist. To civilianise a role does not undermine the legitimate aim of a mandatory retirement age.

Based on the facts of this case I find that the Complainant was not discriminated against on the ground of age, as the measure of a mandatory retirement age at 60 was reasonable and proportionate. The fact that her last role was filled by a civilian who can retire at 70, does not create incoherence and inconsistency having regard to the powers, unique roles and challenges of an Garda Síochána when compared to an entirely different cohort being civil servants, where some overlap can exist. To civilianise a role does not undermine the legitimate aim of a mandatory retirement age for the wider organisation and legitimate policy aim where they are applied consistently for that cohort.

Mandatory Retirement Age-Civilian Comparator-Age 70