Complainant

Respondent

Parties

Eugene  McEnery

Partners In Logistics Ltd

Representatives

Mike Cusack Helix HR

Stephen Keogh Sellors LLP

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-00064157-001

19/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00064157-002

19/06/2024

On the 19th of June 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 when he was forced to retire 6 months after reaching the age of 65.

The Respondent acknowledges that it has a retirement age of 65 which it submits is objectively justified by a legitimate aim.  The respondent also denies that the Complainant was treated in a discriminatory manner as he was permitted to continue working after reaching the age of 65.

The complainant has also submitted a claim of discrimination on grounds of age in respect of his salary/rate of pay.

The complainant submitted two complaints of discrimination on age grounds under Section 77 of the Employment Equality Acts.

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00064157-001

19/06/2024

The complainant commenced working for the respondent in 2003 and held the position of Warehouse Operator.

 The complainant reached 65 years of age on December 4th, 2023, and was  aware that there was an expectation among colleagues that he would retire upon reaching 65 years of age.

The complainant submits that he was also aware of one colleague who had continued working beyond reaching 65 years of age and was still working normally within the Company.

The complainant submits that there was no occupational pension scheme in the respondent company, but the respondent contradicts this stating that it has an occupational pension scheme, but  the complainant has not joined it.

In October 2023, the complainant wrote to the  Company’s management asking to be considered for Employment Extension and following this he continued working after reaching the age of 65.

The complainant submits that in April 2024, 4 months after his 65th birthday he was advised by his manager, Mr. Morrissey, that he was required to either retire or move to a 3-day working week.   He did not wish to retire or to move to a 3-day working week.

On April 18th, 2024, the complainant wrote to his manager, stating that he had no wish to retire for the foreseeable future and referred to the Code of Practice on Longer Working (Declaration) Order 2017.    The complainant’s letter stated that the 2017 Code of Practice on Longer Working pointed out that the Equality Acts 1998 to 2015 prohibit discrimination on nine grounds, including age.

The complainant’s letter of April 18th, 2024 also sought an urgent review of his hourly rate of pay, which had stood at €12.96 and represented an increase of 2.04% over 8 years – an annualised increase of 0.25%.  

The complainant pointed out that the National Minimum hourly rate of pay for employees aged 18 years and over was €12.70 from January 1st, 2024.   He pointed out that colleagues younger than himself, with much less service  had received increases to their basic rate of pay with effect from January 1st, 2024.   The complainant pointed out, in the letter, that failure to increase his basic hourly rate of pay of €12.96 could be viewed as a form of ageism.

The complainant was called to a meeting on April 23rd, 2024. The complainant was advised that he could bring a colleague to the meeting if he wished but that he could not bring anybody who was external to the organisation.

 The complainant attended the meeting and having been refused the opportunity to bring the representative of his choice, the complainant did not feel it appropriate to burden a colleague with the responsibility of accompanying him and/or representing him at such a serious meeting.

The complainant submits s that at this meeting it was the respondent who raised the option of the complainant working a 3-day working week until his 66th birthday. The complainant stated that he did not want to work a reduced hours working week.   Subsequent to the meeting, the respondent issued minutes of the meeting which the complainant submits he does not agree with.

 The complainant disputes that Health and Safety issues regarding the physical nature of some of the business, were discussed at the meeting and disputes that he was  in agreement that they were not suitable to him.”     The complainant submits that he did not and would not state that any part of his tasks as a Warehouse Operator were not suitable to him.

The complainant submits that he refused to move to a 3-day week and was later told by the respondent that his employment was being terminated with eight weeks’ notice and that he could choose to work the eight weeks’ notice or he could finish up and would be paid until the eight weeks’ notice had expired.

On April 25th, 2024, The complainant wrote to the respondent and stated “You stated that there were safety issues concerning my continued employment. I have not been made aware of any difficulty in conforming to health and safety requirements, either by the Company or the Company Safety Representative. I only recently undertook forklift truck training to retain my operating licence.

The complainant submits that he chose not to work the 8 weeks’ notice and on April 30th, 2024, the respondent  wrote to The complainant advising that his employment would come to an end on June 14th, 2024. The fourth paragraph of the letter states: “Thank you for your time with the company, we appreciate your work with us. We wish you the very best for your retirement.”

The complainant submits that the “retirement age of 65” that has been quoted by the Company was not an established retirement age.   In addition, the complainant submits that by agreeing to his request to be allowed work beyond his 65th birthday (on December 4th, 2023) the Company has confirmed that there was no mandatory retirement age of 65 years.

The 30th of April letter from the respondent stated that the complainant was aware that he had excluded himself from performing certain tasks within the warehouse, on health and safety grounds. The complainant refutes this entirely.   The complainant submits that he has never excluded himself from any of the tasks within his role.

The letter also acknowledged that another employee had continued working beyond 65 years of age. The employee in question continues to work within the Company and was not forced to opt for a 3 Day working week or retire upon reaching 66 years of age.   The complainant submits that this precedent demonstrates that there is no established retirement when an employee reaches 65 years of age.   The letter also stated that the Company had no issue whatsoever with The complainant’s performance.   

The letter referred to a possible appeal of the decision. The Company had stated that they were not dealing with any policy or procedure of the Company where any such an appeal would be applicable but  stated that they would be willing to consider to put forward the Company decision for appeal if the complainant could point out specifically on what basis it should be appealed.

It is submitted that the provision of an independent appeal of a decision concerning the ending of a person’s employment is a well-established part of employment law procedures.

 The respondent letter addressed the issue of the complainant’s wages. The Company stated that it had considered this internally and were satisfied that The complainant had been paid the appropriate rate given his role within the organisation and in line with others within the Company.

On May 2nd, 2024, the complainant wrote to the respondent responding to the letter of April 30th, 2014. In the letter the complainant took exception to the allegation that he had excluded himself from the performance of certain tasks within the warehouse.

 Referring to the refusal of an appeal to the termination of employment decision, The complainant referenced two recent decisions of the Workplace Relations Commission:

ADJ-00018810 Peter McLoughlin -v- Shannon Transport & Warehousing t/a STL Logistics and  ADJ-00045261 Thomas Doolin -v- Eir Business Eircom Limited The complainant pointed out that the circumstances of both cases were similar to that applying to him.

The complainant advised the Company in the letter that he did not wish to attend at work during the period of 8 weeks’ notice.

 For the last few years of his employment, The complainant’s hourly rate of pay was €12.96. Female colleagues in the Production Team received an increase in their hourly rate of pay in 2023 / 2024 while the complainant did not receive any increase.   The direct comparators in this instance are the seven colleagues listed in the Production Team as per the Company’s 2023 safety statement.

The complainant also cited the following cases:

ADJ-00018810 Peter McLoughlin -v- Shannon Transport & Warehousing T/A STL Logistics 2. ADJ-00045261 Thomas Doolin -v- Eir Business Eircom Limited 3. EDA 1710 Connaught Airport -v- John Glavey 4. IEHC 467 [2008] Donellan -v- Minister for Justice , Equality & Law Reform & others 5. ADJ-00043459 Patrick O’Callaghan -v- Ferrero Ireland

On 1st January 2003, the Complainant commenced employment with the Respondent as a warehouse operator.  The Complainant’s employment with the Respondent came to an end on 14th June 2024.

As the Complainant approached the age of sixty-five in November 2023, the Respondent initiated discussions with the Complainant to explore the options.  The Complainant expressed a desire to extend his employment beyond the age of sixty-five and submitted a formal request to management in this regard.

The Respondent agreed to a temporary extension of the Complainant’s employment, on the explicit understanding that the Complainant had reached the company's retirement age of sixty-five and that this extension was exceptional.   The Complainant accepted this arrangement at the time, in accordance with the terms of his employment contract.

 The Respondent’s retirement policy stipulates a retirement age of sixty-five, as clearly stated in the Complainant’s Contract of Employment.   These terms were discussed and accepted by the Complainant during consultations, and the Respondent made its succession plans based on these provisions.

 During a review of the temporary extension of the Complainant's employment, the Respondent sought clarification regarding which tasks or functions the Complainant would feel comfortable performing. The respondent submits that this inquiry was made in light of the Complainant's previous request for reassignment due to arthritis,  which worsened in the colder environment of the warehouse.

The Complainant was asked to consider this matter and revert with specific proposals regarding the roles or duties he could undertake. However, rather than providing such details, the Complainant requested that the Respondent consider a three-day working week arrangement.

The Respondent confirmed that it would give due consideration to this request but reiterated the importance of receiving a response from the Complainant regarding the specific tasks he would be capable of performing within the warehouse setting.  The Respondent’s representative met with the Complainant the following day to inform him that the company had carefully considered his request and was agreeable to a three-day week arrangement until his sixty-sixth birthday.  The complainant advised that he did not wish to work a three-day week.

The Respondent again emphasised the importance of receiving a response regarding the tasks the Complainant felt comfortable performing.  Following this meeting, the Respondent received a letter from the Complainant dated 18th April 2024.

 The respondent submits that the Complainant is aware of the nature of the Respondent’s business in the logistics sector, which often involves physically demanding tasks.  The respondent further submits that due to health and safety concerns, the Complainant had voluntarily refrained from undertaking certain manual duties within the warehouse. The Respondent took into account the health and safety risks associated with the Complainant’s role when considering the extension of his employment.

 The Respondent asserts that the Complainant was not subjected to any form of discrimination contrary to the provisions of the Employment Equality Act 1998.   The Respondent has treated the claimant fairly and in accordance with the relevant legislation, internal policies, and best practices.

It is respectfully submitted that, at all relevant times, the Respondent took reasonable steps to ensure that no discrimination occurred and that any decisions regarding the Complainant were based on legitimate, lawful considerations.

The Respondent relies on the following caselaw:

 Liam Murphy v Deepak Fasteners (Shannon) Ltd – CA-0051573-009 [21/01/24].

Bord Na Mona Plc v Kerr EDA2232- This case saw the Adjudication officer acknowledge 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-229/2008) and the Labour Court in Irish Ferries Limited v Martin McDermott EDA1631.”

Seamus Mallon v The Minister for Justice, Ireland and the Attorney General [2024] IESC 20 (15/05/24) -This is a recent Supreme Court decision considering the Council Directive 2000/78/EC of 27th November 2000 establishing a general framework for equal treatment in employment and occupation (the “directive”) as well as the caselaw of the Court of Justice of the European Union (the “CJEU”).  The Supreme Court held that once the aims sought are legitimate and the measure is proportionate, a mandatory retirement age rule will not offend the prohibition on age discrimination.

The Supreme Court noted the CJEU jurisprudence holding that “a measure providing for mandatory retirement (whether a legislative measure or a provisions 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)).

Consequently, the Supreme Court found that the avoidance of an individual capacity assessment has been recognised as a legitimate aim in favour of justifying a general retirement age (paragraph 74). Valentine Reilly v Meath County Council – ADJ0050118 [21/05/24].  The Supreme Court decision in Mallon guided the adjudication officer in forming his opinion in relation to a mandatory retirement age.

 It was noted that a mandatory retirement age is prima facie discriminatory but is allowed where it is objectively and reasonably justified by a legitimate aim and that the means of achieving that aim were appropriate and necessary.

It was noted that since Mallon an avoidance of an individual capacity assessment is a legitimate aim in favour of justifying a general retirement age.  

The Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017 (SI 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

The respondent in its submissions and at the hearing submitted that it has a retirement age of 65 which it submits in objectively and reasonably justified by a legitimate aim in accordance with Section 34(4) of the Employment Equality Act.

The respondent set out he following as objective justification for the retirement age of 65.

·         Allowing employment opportunities for younger workers

·         Health and safety concerns,

·         Addressing age imbalances in the workforce

·         Succession planning.

Claim relating to Pay Increases

The Complainant has raised a query regarding the alleged incorrect payment of wages. The Respondent has carefully reviewed the claim and is satisfied that the Complainant has been paid at the appropriate rate, in accordance with his role within the organisation and in line with comparable positions across the company. Furthermore, the pay increases received by certain employees in January 2024 were implemented to align their wages with the newly increased minimum wage requirements which the complainant was already on a higher rate.

 In light of the above, the Respondent respectfully submits that the claim under Section 77 of the Employment Equality Act 1998 should be dismissed. The Respondent has demonstrated that no discriminatory treatment occurred, that any differential treatment (if proven) was justified by a legitimate aim, and that the actions taken were proportionate and necessary as provided for under Section 34(4) of the Act.

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where.

“a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)”.

Section 34(4) of the Employment Equality Act states as follows.

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

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

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

The Complainant claims that he was subjected to discriminatory treatment by the Respondent on the grounds of his age when he was forced to retire 6 months after reaching the age of 65.

The Respondent acknowledges that it has a retirement age of 65 which it submits that it is objectively justified by a legitimate aim. 

The complainant advised the hearing that he was due to turn 65 in November 2023 and stated that he was aware that he would have had to retire at that time due to the respondent’s retirement age of 65.

I note that the complainant in his submissions disputes the existence of a mandatory retirement age but at the hearing stated that he was aware that colleagues would be expecting him to retire once he reached the age of 65.  The complainant also advised the hearing that it was he himself who initiated discussions with the respondent in the lead up to his 65th birthday requesting that he be permitted to remain in employment beyond the age of 65.   Both parties agree that the complainant was granted an extension to remain in employment past his 65th birthday.

The respondent advised the hearing that the complainant was due to retire at 65 in accordance with the company’s retirement age of 65.  The respondent added that it was aware that the complainant had recently married and so granted him some flexibility around the retirement date when he asked for an extension by permitting him to stay on after the retirement age of 65.

The respondent in its submissions and at the hearing submitted that it has a retirement age of 65 which it submits in objectively and reasonably justified by a legitimate aim in accordance with Section 34(4) of the Employment Equality Act.

The respondent set out he following as objective justification for the retirement age of 65.

·         Allowing employment opportunities for younger workers,

·         Health and safety concerns,

·         Addressing age imbalances in the workforce

·         Succession planning.

The respondent went on to state that it also relied on the legitimate aims of ensuring the efficient and fair operation of the business, ensuring workplace safety, and maintaining appropriate standards for all employees.

The respondent in elaborating on the objective justification outlined that its business involved  Logistics, and the day-to-day work entailed transporting and moving large pallets of bulky items in and out of a high bay warehouse. 

The respondent advised the hearing that the complainant was employed as a warehouse operator and stated that this was a very busy physically demanding and sometimes dangerous role.  The respondent described how the warehouse operators are required to drive forklifts which carry heavy pallets full of good and stack and transport them from different areas of the warehouse and between different bays/floors.  The respondent added that they are also required to use ‘man up’ machines or manlifts which are similar to cherry pickers, and which lift the operator themselves up to 6 metres off the ground  in order to reach high bays in forklifts to load and unload goods.  The respondent also advised the hearing that some tasks involve driving into the back of container trucks to stack and remove heavy loads.

The respondent outlined that it was a physically demanding and dangerous role and that operators may sometimes be 6 metres high up in a machine and then having to lift pallets to a further height.

The respondent also advised the hearing that the complainant had in recent years asked to move from working in the warehouse to working indoors as he found the high bay warehouse very cold, and it affected his arthritis, so he was moved to an indoor job in a heated area where he was labelling and kitting in the rework area.  The respondent advised the hearing that the reason for this was following a request from the complainant that he be moved from the warehouse as the cold was affecting his arthritis.

The complainant at the hearing denied that he had suffered from arthritis but clarified that he had a different condition which affected his hands when in the cold.   The complainant stated that he had a condition whereby his hands would turn transparent in cold temperatures.   The complainant acknowledged that he did have this condition and that he had advised his manager about it.  The complainant argued however that he had never asked for special treatment because of it or requested to be moved.  The respondent advised the hearing that the complainant did raise an issue about working in the cold and so the respondent offered  the complainant the move to the indoor heated area at the time, and he accepted.   The respondent stated that it had done this out of concern for the complainant and that he had accepted it.   The complainant at the hearing agreed that his manager had been good to him and had done this out of concern for him.

The respondent also advised the hearing that the job which the complainant was moved to in the rework area at the time attracted a lower rate of pay of €10.60 per hour but the respondent stated that the complainant retained his higher rate  of pay despite the fact that he was no longer carrying out a role which attracted the higher rate.   The respondent referenced this in the context of the complainant having also submitted a separate claim of discrimination in respect of his rate of pay.  The respondent stated that the complainant retained his rate of pay and was paid at a higher rate than his colleagues carrying out the same role.

The respondent in its evidence to the hearing came across as consistent and genuine.

The respondent advised the hearing that the complainant had also previously been out on sick leave for 6 months due to deep vein thrombosis and a pulmonary embolism.  The respondent advised the hearing that it had paid the complainant while he was out sick.  The respondent advised the hearing that it did not have a sick pay scheme at the time but that it paid the complainant as they wanted to look after him.

The respondent advised the hearing that it had also wanted to look after the complainant by allowing him to remain on in employment after he reached the company retirement age, but the respondent stated that in April 2024 some 5 months after his 65th birthday issues arose.  The respondent advised the hearing that it had at this stage moved to a smaller warehouse and reduced the size of its operations due to the landlord at its previous location having increased the rent substantially.  The respondent stated that the work the complainant had been doing and that contract could no longer be facilitated in the new reduced space.

Both parties agree that it was at this point the respondent asked the complainant to provide a list of tasks/jobs that he was willing to carry out and it was also at this point that a suggestion of the complainant ,moving to a 3-day week until his 66th birthday arose.

The respondent submits that it had asked the complainant to provide details of the tasks and roles  he would be willing to carry out bearing in mind that he could no longer work in the warehouse due to the cold.   The respondent added that the work on the line indoors was not always available and fluctuated from time to time.  The respondent added that the complainant refused to engage with their request for the list of tasks/roles he was willing to perform and so a discussion arose around the possibility of the complainant reducing to a three-day week.

The respondent advised the hearing that the complainant considered this option but then later refused it disputing that it was his suggestion and stating that he wished instead to remain on a 5-day week.   The respondent stated that the complainant later advised them by letter that he would not be working his 8 weeks’ notice but that he wished to receive the 8 weeks payment instead.  The respondent agreed to this. 

The complainant submits that he was left with no option but to finish work as the respondent was now only willing to provide him with a 3-day week option.  The respondent advised that this arose in circumstances where the complainant would not engage with the respondents request for his to set out details of the tasks/job he was willing to do.

 When asked at the hearing why the complainant could not continue to do the job he had previously been doing the respondent advised the hearing that they had since reduced the size of their operations and the size of the warehouse and the contract on which the complainant was previously working on no longer existed.  The respondent added that the work on the line was not always available and fluctuated from time to time.

 The respondent also advised the hearing that given that the complainant had previously asked to move from working in the warehouse to working indoors away from the cold there were limits on the tasks he could be asked to perform.  The respondent stated that it had also discussed with the complainant that they could not put him into the back of a container truck, and he did not disagree with this.   The complainant at the hearing agreed that he knew this was for his own good.  The complainant advised the hearing that his manager Mr. Morrissey had always been good to him.

The complainant at the hearing argued that he never refused to do any job, but he did not claim to have disagreed or argued with the respondent when they suggested the move to him at the time. 

The respondent argued that it had in April 2024 asked the complainant to outline what tasks he was willing to carry out, but the complainant refused to engage with them on this.

The respondent went on to state that in having a mandatory retirement age it relied on the legitimate aim of ensuring the efficient and fair operation of the business, ensuring workplace safety, and maintaining appropriate standards for all employees.

The Respondent submits that any alleged difference in treatment experienced by the Complainant was not discriminatory but instead based on legitimate, business-related considerations that were necessary for the proper functioning of the workplace.

The complainant at the hearing argued that he was aware of one individual who had worked past the company retirement age and continued to be employed by the respondent.    The complainant stated that he had mentioned this to the respondent in a meeting in April, but the respondent declined to comment stating that there were confidential matters at stake.

The fact that the respondent exercises some flexibility in extending some employees’ contracts by offering them a one-year, fixed-term contract does not indicate less favourable treatment of the complainant. 

 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”.

It is the applicant’s contention that, as he was still willing and fit to work, and that another employee was  permitted to work beyond the age he was dismissed, his dismissal was not objectively justified.

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 sets out the best practice under the following headings.

·       Utilising the skills and experience of older workers.

·       Objective justification of retirement.

·       Standard retirement arrangements.

 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 the complainant’s position that there was no appeal process in the instant case. The Respondent disputes this and asserts that it did advise the complainant that he could put to them reasons for an appeal, and they would consider it.  The complainant did not deny this except to state that this did not indicate that an independent appeal process was available.

I am satisfied that to comply fully with the Code of Practice, the Complainant should have been afforded access to a proper appeals process.

Access to a pension scheme

I note that complainant has submitted that the respondent did not provide access to an occupational pension scheme however the respondent at the hearing advised that it had a pension scheme, but the complainant had not availed of it.  The complainant did not seem to be aware of this scheme and said that if had had known about it he would have availed of it.  In addition, the respondent advised the complainant that it was required to offer such a scheme and also pointed to the reference to the voluntary pension scheme in his contract and also stated that this scheme is referenced in its financial statements.  The complainant again reiterated that if he had known about this he would have joined it.

Conclusion

In conclusion, it is a key requirement that the employer can identify a contractual retirement policy within the organisation. The complainant at the hearing seemed to veer from arguing that there was no mandatory retirement age to acknowledging that he knew he would be expected to retire at 65 due to the mandatory retirement age.  The contract provided to the hearing indicates a mandatory retirement age of 65 and the complainant’s letter to the respondent seeking an extension beyond the age of 65 also refers to the ‘mandatory retirement age’.  Accordingly, I am satisfied that there was a mandatory retirement age of 65 and that this was provided for in the complainant’s contract.

It was not disputed that that the Respondent has permitted another employee to work beyond the age of 65 and the respondent also argues that it allowed the complainant to work beyond the age of 65 .  

The rationale behind the policy has been outlined by the respondent and the specific objective grounds outlined to the hearing.     While I acknowledge the shortcoming with regards to the Code of Practice, in the overall context and based on the evidence presented to the hearing, I am satisfied  that the Respondent acted in compliance with Section 34(4) of the Act and that the retirement age it applied in this case was objectively and reasonably justified by legitimate aims and the means of achieving these aims were appropriate and necessary.   Accordingly, I am satisfied that the complainant was not discriminated against on grounds of age by the respondent.  

Having considered the totality of the evidence adduced I am satisfied that the complainant was not discriminated against on grounds of age by the respondent.  

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00064157-002

19/06/2024

The complainant submits that colleagues who perform the same job as him received pay increases on January 1st, 2024, while the complainants pay was not increased.

The respondent advised the hearing that the those colleagues referred to received a pay increase in accordance with national minimum wage increases in January 2024 to bring them up to €12.70 per hour but the complainant was already on a higher rate of pay than his colleagues performing the same work and so did not receive an increase.

The complainant in his claim form indicated that he was discriminated against on grounds of his age  in relation to pay.  The complainant did not submit an Equal Pay claim or name a comparator in his claim form to ground an Equal Pay claim other than to state that colleagues who perform the same job as him received pay increases on January 1st, 2024, and the complainants pay was not increased.

 The complainant added that all of the colleagues that received pay increases were younger than him and have less service.

The complainant at the hearing when asked to clarify his pay claim stated that there were seven female staff members who were paid more than the complainant.    When asked to clarify the grounds of discrimination the complainant replied that it was on gender grounds.

The complainant’s attention was drawn to the claim form which had stated that the claim was based on ‘age’.  

For the sake of completeness I note that the respondent advised the hearing that the complainant when working in the warehouse performing tasks including forklift operator and a ‘man up’ machine operator was on a  rate of €12.76 per hour.  The respondent advised the hearing that the complainant once he raised the issue of the cold affecting his hands was moved indoors to the rework area which was heated and  where he was kitting and wrapping goods.    The respondent advised the hearing that the complainant retained his previous rate of pay when he moved to the indoor role as they did not want to cut his pay.  The respondent added that others performing that role were on a lower rate of €10.60 per hour while carrying out the same work as the complainant.    The respondent added that rate of pay for the line workers was increased to €12.70 in January 2024 in line the minimum wage increase.  The respondent added that the complainant was already on a higher rate of €12.96 and so he did not receive this increase.

 Accordingly, having considered the totality of the evidence adduced I am satisfied that the complainant was not discriminated against on grounds of age or gender in respect of his  pay.

I am satisfied that the complainant was not discriminated against on grounds of age or gender in respect of his  pay.