Complainant

Respondent

Parties

Peter  O'Dwyer

Iarnrod Eireann

Representatives

Ms. Rachel Hartery, SIPTU

Self-Represented

Act

Complaint Reference No.

Date of Receipt

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

CA-00063824-001

30/05/2024

The Complainant commenced employment with the Respondent on 13th April 2000. The Complainant was a permanent, full-time member of staff, in receipt of an average weekly wage of €1,075.00. The Complainant’s employment was terminated on the grounds of retirement on 26th April 2024.

On 30th May 2024, the Complainant referred the present complaint to the Commission. Herein, he alleged that the Respondent discriminated against him on the grounds of “age”. In particular, the Complainant submitted that by terminating his employment on the grounds of compulsory retirement, the Respondent had discriminated against him. In denying this allegation, the Respondent denied, on a factual basis, that the Complainant had sought to extend his employment beyond the contractual retirement date. Without prejudice to the foregoing, the Respondent submitted that they could establish a “legitimate aim” for the Complainant’s retirement age.

A hearing in relation to this matter was convened for, and finalised on, 6th May 2025. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

Both parties issued submissions in advance of the hearing, siad submissions were expanded upon and contested in the course of the hearing. On the instruction of the Adjudicator, submissions were exchanged following the hearing. The Complainant gave evidence in support of his complaint, while the Complainant’s line manager gave evidence in defence.

At the outset of the hearing, the Respondent submitted that the present case should be estopped from proceeding as the matter was red judicata. On inquiry from the Adjudicator, it was determined that the Complainant had not raised any such complaint previously, and as a consequence of the same, no prior decision has issued in respect of the present factual matrix. In these circumstances the complaint proceeded to hearing on the scheduled date.

The Complainant commenced employment with the Respondent in March 2020. The Complainant held the position of “Second Person Station Operative” on a full-time basis. The Complainant successfully passed all regular occupational health checks and maintained that he remained fully capable of performing his duties at all times.

By submission, the Complainant noted that the standard contractual retirement for age for his class of employees is 66. In August 2023, approximately eight months prior to his 66th birthday, the Complainant requested to continue working past his retirement date. This request was made in person to his direct line manager. The Complainant raised this request with his manager on several occasions, however at all times the response was that company policy required all staff to retire at 66. Thereafter, the Complainant was informed that his employment would end on his 66th birthday. He submitted that no further rationale was set out for this decision, and that he was never granted a meeting to discuss the matter. The Complainant’s employment duly terminated on the grounds of retirement on 26th April 2024.

By submission the Complainant submitted that while the Respondent strictly enforced mandatory retirement in his case, this had not been consistently applied across the organisation. In this regard, he highlighted the role of “gatekeepers” within the organisation, that have a contractual retirement age of 70.  Regarding the application to continue employment beyond the contractual retirement date, the Complainant referenced a recent decision of this forum. In this decision, the Adjudicator determined that as such gatekeepers are not engaged in a safety critical role, no objective justification for a compulsory retirement age existed. The Complainant stated that his own role as a “station operative” ceased being deemed to be safety critical in 2019. From that point onwards he worked as a “second person”. In evidence, the Complainant referenced instances whereby the Respondent prevented him from completing certain tasks as he was not deemed to be in a safety critical position. In this respect, the Complainant argues that his role was clearly not deemed “safety critical” within the Respondent’ own definitions, and that this compulsory retirement could not be objectively justified on this basis.

In summary, the Complainant, submitted that the Respondent had set out no legitimate grounds for the enforcement of the mandatory retirement. He submitted that the Respondent did not engage in any consideration of his application in this regard, and that they did not appear to consider his application at all. He denied that that he was involved in a safety critical role and submitted that any consideration of the same on the part of the Respondent only occurred after the termination of his employment. On these grounds, the Complainant submitted that his compulsory retirement without the establishment of a “legitimate aim” amounted to discrimination on the grounds of his age.

By submission, the Respondent agreed that the employment of the Complainant commenced on 6th March 2020. They further agreed that on 11th April 2019, the Complainant was appointed to the role of “Second Person Station Operative”. They accepted that the Complainant was required to retire from the position of station operative on 26th April 2024 at the age of 66.

In this regard, the Respondent submitted that the Complainant joined the Respondent’s internal wage grade pension scheme in April 2011. Upon joining this scheme, the Complainant received contractual information providing for a normal retirement age of 65. They stated that in 2016, the pension scheme was amended to revise the normal retirement age to 66.

On 7th February 2024, the Complainant and his manager were advised that the Complainant should enrol in a pre-retirement course listed for 19th February of that year. In this regard, they submitted that the course in question is available to all employees that are due to retire within the forthcoming year. Following the attendance at this course, the Complainant requested that his line manager contact the Respondent’s HR department to obtain a letter stating that the Complainant would be mandatorily retired at 66. Following his enquiries in this regard, a HR administrator confirmed that the standard statutory retirement age within the Respondent was 66. She further confirmed that the Respondent did not issue standard correspondence in this respect. In this correspondence, the Complainant was explicitly asked whether he wished to arrange a meeting to discuss the issue of his forthcoming retirement further. The Complainant did not respond to this correspondence at this time.

In consideration of the foregoing, the Respondent submitted that the Complainant did not issue a formal request to the relevant department to work beyond the age of 66. The Complainant reached the age of 66 in April 2024 and thereafter exited the organisation in accordance with the terms of his contract. In this regard, the Respondent submitted that the Complainant had not been discriminated against because he had simply not sought to extend his retirement age beyond his contractual retirement age.

Regarding the present case, the Complainant has alleged that the Respondent discriminated against him by enforcing a mandatory retirement age without establishing any form of objective justification or legitimate aim in relation to the same. He further submitted that the Respondent could not rely on the provisions of the Railway Act in circumstances whereby he was not engaged in a safety critical role with the Respondent.

Subsection (1)(a) of that Section provides that,

“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…which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned”

Subsection (2)(f) prohibits discrimination on the basis that that they are of different ages, (referred to as “the age ground”),

Regarding the burden of proof for such complaints, Section 85 allocates the probative burden between the parties. In particular, Section 85(A)(1) provides that,

“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 him or her, it is for the respondent to prove the contrary.”

In the matter of Southern Health Board -v- Mitchell [2001] E.L.R. 201 the Labour Court set out the now well-established test in determining whether the probative burden shifts by application of this subsection. In particular, the Court held that,

“The first requirement is that the claimant 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 is no infringement of the principle of equal treatment”.

Thereafter, Section 34(4) provides that,

“…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”

In the matter of Donnellan v The Minister for Justice & Ors [2008] IEHC 467, McKechnie J held as follows,

“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”.

Thereafter, McKechnie J held that,

“…where justification is sought, and multiple reasons are given, it will be enough that one or more of the justifications advanced, amount to a legitimate aim”.

Regarding the instant case, the Respondent’s defence initially rests on a point of fact. In this respect, they submitted that the Complainant never in fact applied for an extension of employment beyond the agreed contractual retirement age. They submitted that had the Complainant made such an application, they would have considered same in the context of the requirements set out above. Regarding this point, the Complainant denied the position adopted by the Respondent. He submitted that he raised the issue of his retirement well in advance of the proposed date, and communicated his wish to stay on in employment beyond this date on numerous occasions with his line manager. 

In this respect, the Complainant’ representative submitted that on receiving such information, it became the duty of the line manager to relay this information to the relevant department and commence the process of evaluation. Finally, it should be noted that in direct evidence, the line manager in question denied having ever discussed such matters with the Complainant and stated that such matters are dealt with by the Respondent’ HR department. In consideration of the foregoing, it is apparent that a conflict of evidence had arisen in relation to this point.

Having reviewed the contemporaneous correspondence issued in relation to this matter, it is apparent that the Complainant was invited a “Retirement Planning Course” in advance of his forthcoming retirement date. The Complainant received this invite and accepted same, through his line manager, on 7th February 2024. The course in question was held on 19th February 2024, with the Respondent submitting that all relevant information regarding proposed retirement being discussed therein.

Shortly thereafter, on 4th March 2024, the Complainant, again through his line manager, requested “a letter stating that he has to retire at 66 years of age”. The following day a representative of the Respondent’s HR department replied, stating that no such correspondence is issued but that “if (the Complainant) would like to discuss his retirement, we can arrange the same”. Thereafter, no further correspondence passes between the parties prior to the Complainant’s retirement. 

In consideration of the foregoing, it is apparent that the Complainant is correct in assertion that he would normally raise the issues regarding his impending retirement with his line manager, who would then correspond with the Respondent’s HR department on his behalf. However, the correspondence in question does not support the Complainant’s contention that he sought an extension of employment beyond his contractual retirement age. In this regard, the correspondence issued on his behalf simply requests correspondence to the effect that his retirement date is impending, with the request to discuss these matters further, and to presumably allow the Complainant to make his case regarding that extension of his employment, remaining unanswered. In consideration of this correspondence, I find that the same does not support the Complainant’s position, and I find that he did not request an extension of employment beyond his statutory retirement date with the Respondent.

The factual matrix outlined above bears a resemblance to those outlined in the matter of Joseph Cunningham -v- Irish Rail, ADJ-00049474. In that matter, the Adjudication Officer determined that the applicant in that matter similarly failed to request an extension beyond a contractual retirement age. In circumstances whereby it was found that the applicant in that matter was treated in the same manner to all other employees subject to the Respondent’s pension scheme, and by extension, the contractual retirement age, the Adjudicator found that the Complainant had not demonstrated a prima facia case that might give rise to an inference of discrimination.

Regarding the present matter, it is common case that contractual retirement ages are not, of themselves, discriminatory. Discrimination in this context arises whereby a Complainant seeks to work beyond such this retirement age, and the Respondent mandatorily enforces same without establishing a “legitimate aim” in accordance with Section 34.  In circumstances whereby a party fails to request an extension of employment beyond this contractual retirement age, it may be assumed that the Complainant acquiesced to the termination of his employment on these grounds at that time. In such circumstances, I find that the Complainant has not established the primary facts from which an inference of discrimination may arise.  As a consequence of the foregoing, I find that he was not discriminated against in accordance with the Act.

I find that the Complainant was not discriminated against.

Mandatory retirement age, compulsory, request for extension.