EDA258

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00043459 (CA-00054160-001)

BACKGROUND:

The Employer appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 18 December 2023. A Labour Court hearing took place on 13 November 2024.

The following is the Determination of the Court.

DETERMINATION:

1. Background to the Appeal

This is an appeal on behalf of Ferrero Ireland Limited (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00043459, dated 10 November 2023) under the Employment Equality Act 1998 (‘the Act’). The Adjudication Officer found that Mr Patrick O’Callaghan’s (‘the Complainant’) dismissal arising from his mandatory retirement at age 65 constituted age discrimination contrary to the Act and awarded him compensation of €20,000.00.

Notice of Appeal was received in the Court on 18 December 2023. The Court heard the appeal in Cork on 13 November 2024. Mr Patrick O’Callaghan (‘the Complainant’) gave sworn evidence as did the following witnesses for the Respondent: Ms Caroline Mullins, Ms Caroline Power and Mr Brendan O’Sullivan.

2. The Factual Background

The primary facts in this case are not in dispute and can, therefore, be summarised succinctly as follows. The Complainant commenced employment with the Respondent on 13 September 2011 as a General Operative. For approximately his final three years of employment with the Respondent, the Complainant drove a forklift as part of his daily work. He received a slightly higher hourly rate of pay for this work.

The Complainant’s signed contract of employment expressly incorporates the Respondent’s Company Handbook which in turn reflects a collective agreement in place between the Respondent and SIPTU.

Paragraph 5.7 of the Handbook is headed ‘Retirement’ and provides:

“It is agreed that employees will normally retire on reaching sixty-five years of age. However, in certain circumstances, at the Company’s discretion or where applied for in accordance with the rules of the pension scheme the retirement age of an individual may be reviewed.”

The Respondent terminated the Complainant’s employment, in accordance with the foregoing provision, on 28 September 2022 – the date on which he attained his sixty-fifth birthday.

On 5 August 2022, the Complainant made a request via email to Ms Caroline Mullins seeking to work beyond the stated mandatory retirement age of sixty-five. On 1 September 2022, Ms Sharon Ryan – Industrial Organiser at SIPTU – wrote on the Complainant’s behalf to Ms Mullins seeking clarification of the objective justification being relied on by the Respondent in respect of is mandatory retirement age policy.

Ms Mullins met with the Complainant on 7 September 2022 to discuss his request to work beyond the mandatory retirement age. The Complainant stated that he would like to extend his working time for a further twelve months to bring him to the State retirement age of 66.

Ms Mullins wrote to the Complainant on 16 September 2022 to inform him that his request had been refused. She identified a number of issues as comprising objective justification for the Respondent’s policy of mandatory retirement at age sixty-five:

• Health and safety in a manufacturing environment;
• Employee dignity which could be eroded by the need to carry out compulsory medical assessments;
• Intergenerational fairness, increased prospect of promotion, and workforce planning by giving employees a realistic expectation when vacancies may arise;
• The Respondent’s decision to put a different shift structure in place in the Complainant’s department on his departure;
• The maintenance of consistency, cohesion and fairness across the company; and
• The Respondent’s support of its employees through its occupational pension scheme and the pre-retirement planning course available to employees.

The Complainant appealed from the Respondent’s decision to compel his mandatory retirement. He did so by email to Mr Brendan O’Sullivan on 21 September 2022. A meeting took place on 4 November 2022 to discuss the appeal. The Complainant was accompanied by a SIPTU representative, Ms Colleen Minihane at the meeting. An outcome letter dismissing the appeal issued on 14 November 2022.

3. The Complainant’s Evidence

The Complainant summarised his eleven years of service with the Respondent, during which time, he said, no issues about timekeeping, attendance or performance had arisen. He told the Court that he wished to work for the Respondent beyond his sixty-fifth birthday and that from a health and fitness perspective he was more than able to do so having regard to the nature of his work which was not hazardous, did not involve working with chemicals and he had not had any work-related injuries. He also said that he had accrued only a relatively modest occupational pension.

The Complainant outlined his engagement with Ms Mullins leading up to his request to extend his period of work beyond age sixty-five. He told the Court that he had casually mentioned his preference to continue working also to Mr O’Callaghan. The Complainant then gave evidence in relation to his current employment with a motor factors company for which he drives a delivery van. He said this work requires him to regularly lift heavy items including gear boxes and he experiences no difficulty in doing so.

Under cross-examination, the Complainant accepted that his employment with the Respondent took place within a manufacturing environment and, that of necessity, health and safety considerations are paramount in such an environment. The Complainant also acknowledged that the work he was performing immediately before his retirement as fork-lift driver gave rise to specific health and safety issues. Counsel opened the Complainant’s contract and the relevant passages in the Company Handbook referred to above. The Complainant agreed that he was aware in 2011, at the commencement of his employment, that the Respondent applied a normal retirement age of sixty-five years. He also accepted that while the Respondent had provided for the possible review of an individual employee’s retirement age, that possibility did not guarantee a right to a review. Counsel referred the Complainant to the Respondent’s pension scheme which provides for a retirement age of sixty-five.

4. Evidence of Ms Caroline Power

The witness told the Court that she is employed as a HR Generalist and has sixteen years of service with the Respondent. She said that she has responsibility for a range of matters including recruitment, training, health and safety, payroll, industrial relations and employee relations matters. The witness’s evidence was that she had had no engagement with the Complainant with regards to his request to extend his working time. She told the Court that staff of the Respondent company had been retiring since 2010 at the rate of approximately five per year. This pattern of retirement, she said, created opportunities for remaining staff to move between sections. Her evidence was also that the Respondent consistently applies its mandatory retirement policy.

Counsel referred the witness to the Company Handbook. She confirmed that it reflected an agreement that was in place between the Respondent and SIPTU with which trade union she had regular meetings as part of her industrial relations brief. The witness said that SIPTU had never made a request of the Respondent to raise the mandatory retirement age.

The witness said, under cross-examination, that the Complainant had been the first employee of the Respondent to seek to work beyond the normal retirement age. She confirmed that she was aware of the Workplace Relations Commission’s Code of Practice on Longer Working. She confirmed, nevertheless, that the Respondent had not altered its mandatory retirement policy in the light of the Code of Practice and nor had it put in place a medical assessment policy for employees who wished to work longer.

5. Evidence of Ms Caroline Mullins

This witness told the Court that she has twenty-nine years’ service with the Respondent, having started out in the Production Department. Her current role, she said, is that of HR Business Partner and she now has overall responsibility for the Human Resources Department and for workforce planning. She said the Respondent employs circa 310 employees. The witness confirmed that the Respondent has consistently implemented its mandatory retirement policy.

The witness said that the Complainant’s role was a unique role and that he had enjoyed a higher grade and rate of pay than other General Operative colleagues. She also stated that the position he had held immediately prior to his retirement had been advertised internally and he had successfully applied for it.

The witness reiterated what Ms Power had said to the effect that neither SIPTU nor Connect trade union had approached the Respondent to seek an amendment to its normal retirement age. She also pointed to a revised collective agreement that had been concluded in 2024 with Connect and which contained an identical retirement provision to that quoted earlier in this determination.

The witness referred to her engagement with the Complainant approximately eleven months before his due retirement date to provide him with information about the pre-retirement course available to him and to confirm his retirement date. The witness accepted that the Complainant did tell her on that occasion that he would like to work on beyond his sixty-fifth birthday but did not make any formal application in that regard until approximately two months before that date by which time the witness, by her own evidence, had already initiated the internal process to recruit a replacement for the Complainant. She told the Court that a revised structure had been agreed for the Claimant’s department which involved a two-shift pattern whereas the Complainant had worked days only.

The witness’s evidence then moved to the Respondent’s pension scheme which is a defined contribution scheme with a normal pension date (‘NPD’) of sixty-five, she said. The witness expressed the view that the Respondent’s top KPI is health and safety of all its employees. She said the business operates in a physically demanding environment and that, as a consequence, the Respondent views sixty-five as a reasonable retirement age for all employees and had agreed that age with its trade unions. The witness said that she had not arranged to have the Complainant medically assessed as, in her view, this was not necessary having regard to the company-union agreement in relation to mandatory retirement.

6. Evidence of Mr Brendan O’Sullivan

The witness told the Court that he has worked for the Respondent for twenty-four years, initially as a maintenance technician, then as Production Manager and most recently as Energy and Environmental Manager. He said that it has always been his understanding that the Respondent operates a mandatory retirement age of sixty-five.

The witness gave evidence in relation to the reporting structure that was in place when he was the Production Manager. During that period, the witness said that he had oversight over all product manufacturing with twenty-three direct reports. He said that the Complainant worked in General Services and was responsible for recycling which meant that he had to remove the material for recycling from the production area to the yard for compaction and loading on trucks. According to the witness, the Complainant’s job was manual in nature and quite physical. Furthermore, he said, the plant was quite old meaning that space between the lines was limited and this gave rise to the need for considerable manual input to the waste removal process. The witness listed a number of hazards that gave rise to risk from a health and safety point of view impacting on the Complainant’s role: the use of five-tonne hydraulic compactors; forklift loading and unloading and the need to work in confined spaces between machinery. According to the witness, the Complainant had worked a three-shift pattern, 24/5, Monday to Friday for the first eight years of his employment with the Respondent, however, he worked days only during his final three years prior to retirement.

The witness then gave evidence in relation to the changes that were implemented following the Complainant’s retirement. He said that the Complainant’s actual role had been discontinued at the time with a view to introducing greater structure into the recycling area of the business.

Finally, the witness’s direct evidence turned to the appeal he conducted from the Respondent’s decision not to permit the Complainant work beyond his sixty-fifth birthday. The witness outlined his consideration of the seven grounds of appeal that the Complainant had raised.

Under cross-examination, the witness accepted that he had read the Workplace Relations Commission’s Code of Practice on Longer Working for the first time when conducting the Complainant’s appeal. He also accepted that he had never received any training in relation to conducting appeals generally or in relation to an appeal such as that that occurred in this case although he had undertaken an online training seminar in relation to diversity. The witness said that although he had often carried out risk assessments when he had been a member of the maintenance team, he did not carry out a health and safety risk assessment with respect to the Complainant’s role at any stage. Finally, he said that it had been his understanding that an extension beyond age sixty-five would be unlikely to be granted by the Respondent notwithstanding the provision in paragraph 5.7 of the Company Handbook.

7. The Law

Section 34(4) of the Act provides as follows:

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

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

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

8. Discussion and Decision

It is common case that the Respondent had in place a provision for a normal retirement age of sixty-five, that this provision reflected an agreement between the Respondent and both SIPTU and Connect trade unions and that the Complainant was aware of the Respondent’s normal retirement age at all material times. However, it appears to the Court the first occasion on which the Respondent sought to articulate an objective justification for its long-established retirement age policy was prompted by the Complainant’s request to continue working beyond that normal retirement age. That articulation is to be found in Ms Mullins’s letter of 16 September 2022 to the Complainant.

The Court is of the view that no inference detrimental to the Complainant’s case can be drawn from the evidence given by Ms Power and Ms Mullins to the effect that both trade unions with which the Respondent engages for collective bargaining purposes have agreed a normal retirement age with the Respondent and neither trade union has sought to amend that agreement. From an industrial relations perspective, it is very understandable – and obvious to the Court - why that should be the case. The Complainant, however, has come before the Court with an individual complaint under the Act and at no point in these proceedings has he sought to upset any collective agreement in place within the Respondent’s establishment. Had that been the case, it is highly unlikely that he would have been represented by his trade union at all stages of the proceedings.

It is common case that the Complainant performed all aspects of his job satisfactorily, and without giving rise to any health and safety concerns, up until the date of his retirement. It is incomprehensible, therefore, that the Respondent should seek to rely, inter alia, on health and safety considerations to justify the Complainant’s mandatory retirement at age sixty-five as Ms Mullins did in her letter to the Complainant on 16 September 2022. In that letter, she referred to both “Health and safety in a manufacturing environment” and “Employee dignity which could be eroded by the need to carry out compulsory medical assessments”. No context is given by Ms Mullins in relation for these matters which she included in her list of issues that she believed comprised objective justification for the Respondent’s policy of mandatory retirement at age sixty-five. Furthermore, the Complainant had not been requested to undergo medical assessment before any decision was made in response to his request to work beyond the normal retirement age, nor does it appear that he was asked would be amenable to such assessments being conducted should his request have been granted or whether he would regard that as an affront to his dignity.

Ms Mullins also referred to intergenerational fairness and ensuring the availability of promotional opportunities for other workers as a basis for the Respondent maintaining its mandatory retirement age. However, both she and Ms Power gave evidence of the very small number of retirements that occur annually from amongst the Respondent’s workforce. Despite this – and the very small number of attritions from its workforce that the company appears to have also – two of the three witnesses who gave evidence on the Respondent’s behalf told the Court of how they had each achieved significant internal promotional progression within the Respondent. This appears to belie the suggestion that a mandatory retirement age – and, in particular, the compulsory retirement of the Complainant – was necessary to ensure the availability of promotional opportunities and intergenerational fairness.

A further ground listed by Ms Mullins as objective justification was what she described as “the maintenance of consistency, cohesion and fairness across the company”. It is self-evident that “consistency, cohesion and fairness” could be achieved by fairly considering any and all applications for extended working beyond the normal retirement age in accordance with the Code of Practice. In fact, it appears to the Court that the Respondent is in effect seeking to rely on this objective as justification for totally disregarding the Code.

Yet another consideration referred to by Ms Mullins in the aforementioned letter was the Respondent’s decision to put a different shift structure in place in the Complainant’s department on his departure. The evidence before the Court was that this decision had been taken very early on in anticipation that the Complainant would be retiring on reaching his sixty-fifth birthday and well before he made his application to extend his working time. The Complainant was not consulted about the proposed change and nor, does it appear that any consideration was given to offering him a role in the revised structure. The import of Ms Mullins’s reliance on the anticipated new shift structure as objective justification for the Complainant’s mandatory retirement appears to the Court to be an example of ‘post hoc, propter ergo hoc’ fallacious reasoning.

The final ground referred to by Ms Mullins in her list of objective justifications was the Respondent’s support of its employees through its occupational pension scheme and the pre-retirement planning course available to employees. Had the Respondent agreed to permit the Complainant to work for an additional year, for example, as he had requested, there appears to the Court to be no reason as to why he could not have availed himself of a pre-retirement course at an opportune time during that period. No evidence was advanced at the hearing to the effect that the Complainant could not have deferred drawing down his occupational pension until the conclusion of any extended period of employment with the Respondent. In fact, his own evidence was that he was aware that his accrued pension was very modest and that this informed his decision to seek working for an additional year or so beyond age sixty-five.

9. Determination

Having carefully considered the evidence adduced in the course of the within appeal, the Court finds that the Complainant was the first employee of the Respondent to seek to work beyond the company’s stated normal retirement age. The Court also find that prior to the Complainant making that application no objective justification for regarding the normal retirement age as a mandatory retirement age had been articulated or promulgated by the Respondent. The best that can be said, is that the Respondent relied on the fact that the normal retirement age had been collectively agreed with its trade unions, neither of which had ever indicated that it wished to increase the normal retirement age. Following receipt of the Complainant’s application, Ms Mullins – in her letter of 16 September 2022 – some twelve days before the Complainant was compulsorily retired – sought to compile a list of factors by which the Respondent sought to retrospectively justify its mandatory retirement policy. The Court, having carefully considered each of the matters referred to by Ms Mullins, finds that they do not stand up to scrutiny and do not satisfy the requirements of section 34(4)(i) of the Act i.e. taken either individually or collectively, they do not, in the Court’s view provide reasonable and objective justification for the Respondent’s imposition of a mandatory retirement age of sixty-five years.

For the foregoing reasons, the Court finds that the appeal does not succeed. The Court measures the compensation payable to the Complainant for the effects of his discriminatory dismissal at €15,000.00. The decision of the Adjudication Officer is varied accordingly.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
AR	______________________
10th January 2025	Deputy Chairman

NOTE

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