Complainant

Respondent

Parties

Mary Morris

Southwest Doctors on Call Limited

Complainant

Respondent

Anonymised Parties

Complainant

Respondent

Representatives

Diarmuid Long  SIPTU

Coman Larkin

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-00053514-001

02/11/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and two witnesses for the respondent undertook to give their evidence under affirmation.  In the event, only the complainant gave limited evidence, the option of cross examination was afforded to the other party.

The claimant commenced employment with the respondent on 8th October 2001 as a receptionist working approximately 25 hours per week.  The contract of employment received did not specify retirement age.  The complainant submitted that it was the respondent’s preference to employ mature people. She was reassured that there was no retirement age and submitted that she witnessed colleagues working well into their 60s. It was submitted that she had a legitimate expectation to work beyond her 65th birthday.

The complainant submitted that she was informed that she would have to apply to extend the terms of her employment under the retirement age policy and did so under protest. She confirmed her dissatisfaction with the imposition of retirement age of 66.

The complainant submitted that the respondent may maintain agreement was reached on a retirement policy in 2014 however, a WRC conciliation officer confirms it was still unresolved in April 2019.  The complainant submitted that the company lists the following grounds in their Retirement Age Policy: The objective justifications underpinning the decision include (but are not limited to): - Creation of a balanced aged structure in the workforce; - lntergenerational fairness: allowing younger employees to be recruited; - lntergenerational fairness: allowing younger employees to progress within the company; - lntergenerational fairness; increasing likelihood of employee retention; - The protection of Health and Safety within the workplace; - Creation of certainty in succession planning; - Creation of certainty in business planning;

The complainant submitted that her dismissal at age 66 was not objectively and reasonable justified, by a legitimate aim as the above list does not apply to a receptionist post.  She submitted, for example, that intergenerational fairness or succession planning is not realistic as the post held by the claimant, is not a promotional post. Likewise, health and safety is not a legitimate aim as she was confirmed as fit both mentally and physical for her role.

The complainant submitted that the respondent proposing to allow workers to remain until age 68 based on potential changes to state pension entitlements as per their policy, also negates the respondent’s argument that 65 is justifiable.

The complainant submitted that the respondent has already lost a similar case and noted the 2014 case of O’Mahony V SouthDoc. The complainant submitted that the previous case similar to this case in that the respondent had provided no evidence to demonstrate why the chosen cut-off point of 65 is appropriate or necessary.

The complainant also noted the case of Donegal County Council v Porter, McLaughlin, Mc Gonigal and Bredin noting that the issuing of a different contact of employment by the respondent was an attempt to unilaterally alter the complainant’s implied terms and conditions of employment, she was prudent to reject same.

The complainant also submitted that the authority for justifying differences in treatment on the grounds of age if they are objectively and reasonable justified by a legitimate aim, and if the means of achieving that aim are proportionate and necessary is Donnellan V The Minister for Justice, Equality and Law Reform. It was submitted that the respondent in this case has not met this bar.

The complainant also relied upon the Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017 (S.I. 600/2017) which provides: “Retirement ages in the private sector are generally set out by means of: a) An express term in the employee’s contract of employment, b) an implied term in the employee’s contract of employment; c) relevant policies, for example a staff handbook; and d) custom and practice generally arising from the pension date set in the relevant occupational pension scheme”.

It is the complainant’s case that she was issued with a contract of employment in 2001 omitting a retirement age. Based on custom and practice the implied term in Ms Morris’s contract of employment was the option of working beyond one’s 65th birthday. There is no occupational pension scheme for receptionists, and the policy the respondent is seeking to rely on was not in place when the claimant was hired.

The complainant noted that in McGrath v Focus Ireland (ADJ-00018823); “It was not necessary to use the blunt indicia of age when fitness could have been readily assessed in other ways”. The claimant would have willingly attended annual medical assessments in order to continue in employment. In the case of Dr Paul Quigley and the HSE an injunction on termination of employment at age 65 was granted as the contract of employment did not state a retirement age.

It is the claimant’s case that she never signed a contract of employment, stating a mandatory retirement age. On this basis, there is no age of retirement which is legally binding and/or enforceable upon her.

The complainant also cited the test of whether a retirement age is objectively justified as set out in John O’Brien v PPI Adhesive Products Ltd [ADJ-00009914]:“1. What was the de facto situation in the respondent’s company at the time? 2. Do the measures in relation to mandatory retirement seek to achieve a legitimate aim? 3. Is the aim legitimate in the particular circumstances of this case? 4. Are the means of achieving the aim proportionate?” The complainant suggested that the test was not met by the respondent in this case.

The complainant submitted that she was denied the option of working beyond her 66th birthday despite former colleagues being allowed to do so. The respondent introduced new contracts of employment in approximately 2008 and a retirement age policy in 2014, fixing a retirement age for the first time. This was rejected by the ccomplainant. The retirement policy refers to “the nature of work undertaken, which objectively justified the Retirement Age, requires a standard of physical and mental wellbeing”. The complainant submitted that she never failed the required standard of physical and mental wellbeing. She was discriminatorily dismissed based on the respondent providing no evidence to demonstrate why the chosen age limit of 65 is appropriate and necessary especially, when employees worked beyond it prior to 2008. The complainant submitted that the respondent has not shown evidence of exploring a more proportionate response to supposed safety concerns e.g. requiring annual medical assessment.

The complainant is seeking the maximum applicable award of two years remuneration of 104 weeks’ pay to remedy the breaches of the Act and to be dissuasive, i.e. €29,608.89 x 2 = €59,217.78

In evidence the complainant confirmed that colleagues had previously worked beyond 65 years of age, “but not in recent years”.

The respondent operates an “out of hours” GP co-operative.  The complainant was employed as a Treatment Centre Receptionist in the Killarney Treatment Centre from 8 October 2021 to 13 August 2022.

The complainant has made a complaint under the Employment Equality Act, 1998 claiming that she was discriminated against by her employer on the ground that her employment came to an end on 13 August 2022 (being the date before her 66th birthday). It is wholly denied that the complainant was discriminated against.

The respondent submitted that the complainant’s employment ceased by the passing of time in accordance with the terms of her employment (as set out in the Contracts of Employment provided to all employees), in accordance with the Employee Handbook, in accordance with the signed agreement between the respondent and the complainant’s Union as executed in March 2014 and in accordance with legislation.

The respondent submitted that the express and/or implied terms of the complainant’s employment (to include the Employee Handbook which expressly referred to a retirement age for all employees on reaching 65 years) were that her employment would come to an end on the day before her 65th birthday. As the complainant was born on 14 August 1956, the day before her 65th birthday was 13 August 2021. However, under the agreement, the employee was entitled to apply to extend her employment/retirement age by one year. The complainant followed the procedure as set out in the agreement, it was reviewed by an independent Practitioner as per the agreement and thereafter her employment was extended by a period of one year.  On 13 August 2022 the complainant’s employment came to end by virtue of arriving at the (extended) date of retirement.

The respondent submitted that the complainant’s employment coming to an end on 13 August 2022 did not constitute any discrimination on its part, and was fully in accordance with the express and or implied terms of the complainant’s employment.  The respondent referred to relevant extracts from the Employee Handbook, the March 2014 agreement and extracts from the Social Welfare and Pensions Act 2011 (Section 7) and the Social Welfare Act 2020 (Section 17). These show the complainant’s employment coming to an end was strictly in accordance with the terms of her employment (to include the Employee Handbook), the signed agreement and up to date legislation, namely the Social Welfare and Pensions Act of 2011 as updated and amended by the Social Welfare Act 2020.

The terms of the complainant’s employment, whereby employment comes to an end no later than the day before the employees 66th birthday, is objectively justifiable on the nature of work undertaken by employees and the necessary measures following on therefrom. The nature of the work undertaken, which requires a standard physical and mental wellbeing, objectively justifies this retirement age. In addition to this, the retirement age also encourages and promotes other members of staff succeeding to higher positions. The retirement age is fully justifiable and is also in accordance with the up-to-date legislation referred to previously.

The respondent submitted that the complainant submitted that she was reassured there was no retirement age within the organisation and alleges that she has witnessed colleagues working well into their 60s.  Although no precise age is set out for the said colleagues, there is an inference that other employee worked beyond the age when the complaint’s employment came to an end. These allegations/inferences are wholly denied by the respondent, and no documentary evidence in support of these allegations has been proffered.

The respondent submitted that no assurance was given to the complainant, or any other person interviewed by the respondent for a position within the organisation, that there was no retirement age and the simple fact is that, in accordance with legislation and the signed March 2014 agreement, no person has ever remained in the employment of the Respondent beyond their 66th birthday.

The respondent submitted that the complainant refers a letter issued by the WRC on 25 April 2019 and relies on that letter to state that a WRC Conciliation Officer confirms it the signed agreement was still unresolved in April 2019. The respondent submitted that the letter outlines a list of issues put forward, mostly by complainant’s union (four issues) and partly by respondent (one issue) which were then under discussion. The fact that the union put forward the matter of retirement age for discussion does not in any way invalidate the signed March 2014 Agreement.

In respect of the case law referred to in the complainant’s submissions, reference is made to the case of O’Mahony v SouthDoc. However, this case pre-dates the signed March 2014 Agreement whereby the Union, on behalf of the complainant, accepted that the retirement age was the day before one’s 65th birthday, with an option to apply to extend one’s employment/retirement age by one year.

In the cases of McGrath -v Focus Ireland and O’Brien -v- PPI Adhesive Products Ltd. the circumstances differ to the matter at hand in this instance, in that the former case related to the non-renewal of a Contract of Employment and in the latter case the determining factor was that the employer did not universally apply the retirement age.  The respondent has a retirement age is universally applied.

The respondent noted that reference is made to the criteria set out in the Industrial Relations Act 1990 which refers to retirement ages being based on express/implied terms of an employee’s employment, relevant policies (for example a Staff Handbook) and custom and practise generally arising from the pension date set in the relevant occupational pension scheme. The respondent’s Employee Handbook clearly set out that the retirement age for all employees was on reaching their 65th birthday and the complainant signed an acknowledgement in respect of the said Employee Handbook.

The respondent submitted that the complainant alleges that based on custom and practice the employed term in her Contract of Employment was the option of working beyond one’s 65th birthday. This is clearly not the case in that the Employee Handbook expressly refers to a retirement age on reaching one’s 65th birthday (which said retirement age could be extended by one year only in accordance with the signed March 2014 Agreement).  The respondent submitted that it is clearly the case that it was an express and/or implied term of the complainant’s employment that the retirement age was the day before one’s 65th birthday and the respondent’s position in this regard is heavily supported by Contracts of Employment provided to employees, the terms of the Employee Handbook, the signed March 2014 Agreement whereby the complainant’s Union accepted on her behalf that the retirement age was the day before one’s 65th birthday and up to date legislation in respect of employees not working beyond their 66th birthday.

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 complaint before me deals with the existence or not of a retirement age in relation to the complainant’s employment and then seeks to query whether the retirement age was objectively justified.

The complainant suggests that there was no retirement age in place in relation to her employment with the respondent. This is clearly not the case as there was an agreement between the employer and the union (who represents the complainant) regarding a retirement age. Although at some point in time there may have been differences of opinion between the union and the employer as to the agreement and what was meant by it, the fact that the employer and the union signed the agreement is not in contention.

The 2014 agreement put paid to any custom and practise argument that may have existed prior to the signing of that agreement. The complainant has not put forward documentary proof that any employee was employed after their 66th birthday following the introduction of that agreement. The terms and conditions of a worker’s employment can be listed in a number of ways: the usual manner is in writing in a contract of employment.  However, when the terms and conditions of employment are given in writing in the format of an employee handbook, and furthermore in an agreement signed by the union representing employees and the employer, it can no longer be said that no retirement date exists in writing. Accordingly, I am satisfied that the contractual retirement age applicable to the complainant and noted in writing was upon reaching her 65th birthday. The agreement also made provision to extend that retirement age for an additional year and made further provision to cater for any changes in the legislation that entitled a person to access the old age pension.

From the introduction of the agreement in March 2014, if appears to me that no employees were retained beyond the age of 66 and that the retirement age, and procedure, was not varied from.

As to the matter of whether a retirement age was objectively and reasonably justified by a legitimate aim, the agreement signed off between the employer and the union outlines a series of the legitimate aims for the imposition of a retirement age.  This agreement was accepted and signed by the union when they signed the agreement on behalf of the employees.  This included the possibility to avail of an occupation health medical to ascertain if any health concerns arise in extending the period of employment.

The complainant sought to extend her employment for a period after her written retirement age.  The respondent interpreted her request as an extension for 12 months and confirmed this interpretation in writing to the complainant.  The complainant did not seek to extend her period of employment beyond this initial 12-month period as provided in Section 4.1.2 of the Retirement Age Policy document signed in March 2014.

In the circumstances where the respondent provided a retirement age along with objective and reasonable justification outlined by legitimate aims.  They shared those aims with the complainant’s union (and thereby the complainant).  Although a mechanism existed to seek an extension of employment beyond that initial extension, the complaint never sought to utilise this mechanism.  Therefore, I find that the respondent provided a retirement age that was objectively and reasonably justified by a legitimate aim.

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complainant was not discriminated against on the Age ground.

Retirement Age – retirement policy – legitimate aim – objective justification – procedure in place – no discrimination