ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00051189

Parties:

Complaint:

Date of Adjudication Hearing:  18/11/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complaint is that the Complainant was discriminated against on grounds of age when she was forced to retire from her employment.

Summary of Complainant’s Case:

The Complainant was employed as an Operator from 1st May 2002.  She was notified that she would have to retire on her 65th birthday on 24th February 2023.  Her contract of employment is silent on retirement age. As the Complainant loved her job and was healthy and fit to continue in her occupation, she applied for an extension to her contract.  This was granted on the basis of a one year fixed term contract.

She applied to stay on at the end of that year.  However this application was rejected. There was no objective justification or meaningful engagement by the Respondent. 

Legislation

The Employment Equality Act 1998 at Section 34 (4) states:

“Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to affix different ages for the retirement (whether voluntary 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 test for objective justification is set out in Donnellan v Minister for Justice and Ors [2008] IEHC 467. In that case McKechnie J. held:

“National measures relating to compulsory retirement ages, are not excluded 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…”

It is in dispute that there is in fact a compulsory retirement age.  The Respondent’s documentation refers to “normal” retirement age and the contract and employee handbook is silent on what constitutes normal retirement age.

In a previous case, ADJ-00047616 the Respondent’s produced a new policy entitled “Retirement Policy”.  This policy was unknown to employees, and the Respondent cannot now attempt to rely on this to retrospectively apply a retirement policy.

Section 85(A) of the Employment Equality Acts 1998-2015 sets out the burden of proof which applies to claims of discrimination.  It requires the Complainant to establish, in the first instance facts upon which he or she can rely in asserting that he or she has suffered discriminatory treatment.  In meeting the burden of proof it is submitted:

1. The Complainant was dismissed by the Respondent on reaching her 66th birthday on the expiry of a fixed-term contract that was not objectively justified. Another employee remained on after the age of 66, up until 67.
2. The Respondent’s decision to terminate her employment was directly related to her age, whereas other fixed term contracts are renewed if not related to age.

Direct Discrimination

It is noteworthy that fixed term contracts are often issued to younger employees.  These contracts are often renewed.  In some cases, when not renewed the reason given is not age.  The reason given for the non renewal in this case is age and this constitutes direct discrimination on grounds of age.  In addition, another employee was given a fixed term contract at age 66 which allowed him to work until his 67th birthday.

The Code of Practice on longer working S.I. 600 of 2017 specifies that a request from an employee to work longer than their contracted retirement age should be given careful consideration which entails an assessment of whether the retirement is justified on a legitimate and objective basis.

In ADJ-00043459, O’Callaghan v Ferrero Ireland, the Adjudication Officer, echoing McKetchnie J. in Donnellan stated that the Respondent’s position “clearly lacked an element of individual assessment” and that “no evidence of a test of compatibility of the purported legitimate aims, directed at the specific characteristics of the Complainant was given”.

In summary, it is argued that the Respondent cannot rely on the argument of compulsory retirement age.  Government policy has changed and longer working should be considered by employers.  The Respondent did not objectively justify the non-renewal of the contract.  

Summary of Respondent’s Case:

The Respondent employs over 1,600 staff at the site in which the Complainant was employed.

On 24th January 2023, she received a post retirement fixed term contract to commence on 1st March 2023 and expire on 1st March 2024.

The Complainant was due to retire on her 65th birthday and in advance of her retirement it was agreed to have the date extended as per the Retirement Procedural guidelines of the Respondent.

The Complainant accepted the terms of the one year fixed term contract which clearly specified that it would expire on 1st March 2024.

The Complainant applied to have the contract extended, this was rejected and she appealed that decision.  The appeal outcome was given to her in January 2024 in which it was explained that the decision to extend the contract was in line with the WRC Code of Practice on Longer working and that matters were based on existing scenario and in accordance with business objective.

Legislation

Section 6(1) of the Employment Equality Acts 1998 – 2021 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

Section 6 (2) provides that as between any 2 persons, the discriminatory grounds are:

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

Direct discrimination is defined as occurring, where one person is treated less favourably than another is, has been, or would be treated and that person is of a different age than another person.

Direct discrimination consists of two elements.  The first is the less favourable treatment of the individual making the complaint; the second is the existence of age grounds for that treatment.  Both elements must be satisfied for a claim of discrimination to succeed.

Article 6(1) of Council Directive 2000/78/EC provides that discriminatory treatment based on age grounds is permissible subject to objective and reasonable justification and where the means of achieving these aims are appropriate and necessary.

S.I. 600/2017 WRC Code of Practice on Longer Working states

Essentially the law is now that compulsory retirement ages set by employers must be capable of objective justification both by the existence of a legitimate aim and evidence that the means of achieving that aim is appropriate and necessary.

Examples of what constitutes a legitimate aim may include:

Intergenerational fairness (allowing younger workers to progress),

Motivation and dynamisms through the increased prospects of promotion,

Health & Safety (generally in more safety critical occupations),

Creation of a balanced age structure in the workforce,

Personal and professional dignity (avoiding capability issues with older employees) or

Succession Planning.

The Respondent’s normal retirement age is outlined in the HR Procedural Guidelines for retirement which state:

The company contractual retirement age is on the last day of the month where the employee reaches their 65th birthday.

It is argued that the normal retirement age of 65 in the company is objectively justified to achieve the legitimate aims above, including health & safety, intergenerational fairness, creation of a balanced age structure in the workforce and succession planning.

It is argued that should the Respondent be found to have been unfair to the Complainant and to issue her with a contract to her 68th birthday, this would cause an untenable situation for the Respondent.  The comparator cited is not relevant or appropriate as the claim he made took a considerable time to go through procedures.  Also given that 10% of the workforce are due to retire within the next 5 years it would be untenable to find the Respondent should take action which would have considerable effects on the intergenerational issue and balanced age structure in the workforce.

Findings and Conclusions:

The Complainant submits that the Respondent discriminated against her on grounds of age when they refused to renew her one year fixed term contract one year after her 65th birthday. The arguments submitted include that the employee’s contract is silent on the age of retirement and that the Respondent’s employee handbook is also silent on it.  The matters to be investigated in this case are: has the Complainant established a prima facie case from which it can be inferred that discrimination has taken place and if so, has the Respondent rebutted the claim.

The applicable law

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,

Section 6 (2) of the Act provides the discriminatory grounds as being between any two persons where:

• (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 a 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”).

The burden of proof

 Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:

“(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 her or her, it is for the Respondent to prove the contrary.”

The extent of evidential burden has been established by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 where the Court found that the Complainant must:

“establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a 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 if 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 was no infringement of the principle of equal treatment”.

The formulation of the test by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 was described by the Court in HSE North Eastern Area v Sheridan EDA0820 involving a three step process of analysis:

First, the Complainant must prove the primary facts upon which he or she relies in alleging discrimination.

Second, the Court or Tribunal (or in this case, Adjudicator) must evaluate these facts and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination.

Third, if the Complainant fails at stage 1 or 2, he or she cannot succeed.  However, if the Complainant succeeds at stages 1 and 2, the presumption of discrimination comes into play and the onus shifts to the Respondent to prove, on the balance of probabilities, that there is no discrimination.

In this instant case, the evidence shows:

The Complainant accepted a post-retirement fixed term contract which would expire on 1st March 2024. 

The HR procedures document on retirement clearly sets out the retirement age as being the last day of the month where the employee reaches their 65th birthday.  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.  I find that she has not established a prima facie case from which it could be inferred that she was discriminated against.  I find the complaint to be not well founded and the Respondent did not discriminate against the Complainant on grounds of age.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint  in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

For the reasons cited above, I have decided that the Respondent did not discriminate against the Complainant on grounds of age.

Dated:   20th January 2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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