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FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES: BORD NA MONA PLC
(REPRESENTED BY BYRNE WALLACE LLP, SOLICITORS) - AND - MR ANTHONY KENNY (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION :
SUBJECT: 1. Appeal Of Adjudication Officer Decision No. ADJ-00027832, CA-00035646-001.
The appeal outcome letter was the last communication sent to the Complainant until he received communications about his pension after he was retired in April 2020. A referral was made to the Workplace Relations Commission on 9 April 2020. Ms Feeney, SIPTU, on behalf of the Complainant, asserts that a discriminatory decision was made on 15 January 2020, when the Complainant was refused an extension to his contract of employment. The Complainant was explicitly told on 15 January 2020 that he would not be retained in employment. The Respondent did not objectively justify the decision to retire the Complainant in line with legislation and the provisions of the Code of Practice on Longer Working S.l. 600 of 2017. The Complainant had no alternative other than lodge a complaint to the WRC on 9 April 2020. Ms Feeney further submits that there was no reference to health and safety in the initial grievance, yet the issue of health and safety is relied upon quite clearly by the company. The Complainant’s capability to carry out the role was not challenged. It was not a requirement to carry out a medical at that time. There is no collective agreement in place that allows the appellant to forcefully retire the Complainant. The Respondent cannot rely on a 2016 company union agreement as it related to retirement age. The relevant collective agreement in place was the 2019 company union agreement, which superseded the 2016 agreement. Procedures in respect of retirement age were not agreed at that time. The Respondent’s position was that they would not allow any worker under any circumstances to work past 65 years of age. Despite efforts by the union to conclude an agreement on retirement age during 2019, the company continued to schedule individual grievance cases. A decision of the Joint Industrial Relations Council issued on 17 February 2020 which dealt with the issue of retirement in the following terms:-
A decision subsequently issued on 1 April 2020 confirming:
Ms Feeney submits that the JIRC decision of the 1 April 2020 did not supersede the decision made in January 2020 to reject the Complainant’s application to remain in employment after his 65th birthday. The Complainant was never informed of this matter and instead he was retired in April 2020. The trade unions were only informed on 12 May 2020 that the Respondent was fully committed to implementing the JIRC decision. The Complainant was already retired a month. The appellant is a member of the defined benefit pension scheme, but the pension was not sufficient to retire. In response to questions from the Court, Ms Feeney told the Court that it is accepted that the aims set out by the Respondent to justify a mandatory retirement age were legitimate aims, but she asserts that the means of achieving those aims were not appropriate or necessary, as the manner in which the retirement policy was implemented in the Complainant’s case was not objectively justified. In this regard, the grievance outcome letter issued to the Complainant did not provide details of the legitimate aims outlined to the Court at the hearing, and the Complainant was never given an opportunity to challenge the health and safety ground. Ms Feeney referred to the following case law in support of her position: An Operations Manager and An Oil Company ADJ-00023458, Roper and RTE ADJ-0001908417, Geraghty and the Office of the Revenue Commissioners ADJ-0003125 and A Senior Staff Nurse and a Nursing Home (in Liquidation) ADJ 00027325. Ms Feeney, on behalf of the Complainant, seeks that Court affirm the Decision of the Adjudication Officer or increase the compensation awarded to appropriately compensate the Complainant for loss of earnings and stress which he suffered as a result of the failure of the Respondent to follow their own procedures, jurisprudence, and natural justice. Position of the Respondent Mr Loughlin Deegan of Byrne Wallace Solicitors, on behalf of the Respondent, submits that the retirement of the Complainant at the collectively agreed retirement age of 65 was objectively justified and did not constitute discrimination within the meaning of the Act. The retirement age was collectively agreed with the recognised group of trade unions, including SIPTU, and has operated for many years. When the Complainant was approaching retirement age, he availed of a collectively agreed mechanism in place by which employees could apply through the company’s Grievance Procedure to remain in employment beyond retirement age. The Complainant made such an application but was initially unsuccessful. In April 2020, significant changes were made to the retirement age policy allowing employees to work after retirement age, subject to passing an occupational health assessment and limited to a one-year fixed-term contract. This policy change arose from a binding decision issued by the Joint Industrial Relations Council (JIRC) on 1 April 2020. The JIRC is a tripartite body established to address particular industrial relations issues. Its decisions are binding on both management and unions. Further to the binding decision that issued on 1 April 2020, the Complainant and other employees were offered the opportunity to work past their retirement age and avail of a one-year fixed-term contract, subject to passing an occupational health assessment. The Complainant declined to attend an occupational health assessment. Having excluded himself from the collectively agreed procedure, he did not take up the fixed-term contract and his retirement was not reversed. Nine out of the ten employees who had requested to remain in employment after their 65th birthday complied with the agreed process to attend an occupational health assessment and were offered a one-year fixed-term contract. The WRC Agreement of 2016 established a mechanism by which employees could apply to remain in employment after reaching their retirement age. In the context of a shrinking workforce and urgently required cost reductions, that Agreement expressly made clear that this mechanism “would have a limited application”. In April 2019 a successor agreement “Just Transition” addressed “retirement age” which specified that “Cost reductions under the volume related headcount reduction in the WRC Agreement (2016) was predicated on employees retiring at age 65. In keeping with the WRC Code of Practice on Longer Working, the company is engaging with the GOU Welfare Sub-Committee on this matter.” The matter of “retirement age” was subsequently referred to the JIRC for a decision in February 2020. An interim decision issued from the JIRC on the 1 April 2020 as follows:
The offer of a one-year fixed-term contract (subject to passing an occupational health assessment) was made to the Complainant before his retirement. He indicated (through his union official) his intention to take up that offer before his retirement date. Mr Deegan submits that the request to work beyond age 65 was properly considered, and the Respondent fully complied with the Code of Practice on Longer Working in respect of the Complainant’s request to work past his retirement age. The complaint strikes at the heart of a collectively agreed and objectively justified resolution in respect of retirement age. The Complainant’s terms and conditions of employment were negotiated on his behalf by his trade union. He was bound by the outcome of those negotiations. Having accepted the benefits of collective agreements negotiated on his behalf he cannot renounce one of the core provisions of those agreements. Respondent - Legal Submissions The operation of a retirement age of 65 was (and is) objectively justified by reference to a number of lawful aims, which include (a) maintaining employment; (b) preserving and improving terms and conditions of employment among those employees who had not yet reached the age at which they could avail of occupational pension benefits; (c) the provision of a sustainable business; and (d) the protection of the health and safety of employees The legitimate aims relied on by the Respondent were clearly expressed long before the present litigation commenced. The aim relating to “fairness between workers of different generations” is evident (albeit expressed in different terms) from the WRC Agreement of 2016 and Just Transition Agreement of 2109. The aim of “the provision of a sustainable business” is set out expressly in the WRC Agreement of 2016. These aims were implicitly the basis for the grievance outcome decisions issued to the Complainant on 13 December 2019 and 15 January 2020. The aim relating to health and safety was expressly set out in the appeal decision to the Complainant of 15 January 2020. Mr Deegan submits that it did not have any obligation to use any particular formula of words to describe these legitimate aims in its correspondence to the Complainant when it communicated the outcome of his individual grievance. The CJEU concurred with this view in Palacios de la Villa v Cortefiel Servicios SA (Case C-411/2005)the CJEU noted that “it cannot be inferred from Article 6(1) of Directive 2000/78 that the lack of precision in the national legislation at issue as regards the aim pursued automatically excludes the possibility that it may be justified under that provision”. The operation of a compulsory retirement age was an appropriate and necessary means of achieving the aims of fairness between workers of different generations and the provision of a sustainable business. The retirement age of 65 was expressly agreed as a key element of collective agreements concluded with Respondent’s unions in an attempt to be fair to those who had not yet reached retirement age, by preventing job losses and reductions in terms and conditions of employment. The Complainant was a beneficiary of such agreements, insofar as his employment continued and his terms and conditions were not reduced before he reached retirement age. The operation of a compulsory retirement age was also a necessary and appropriate means of protecting the health and safety of employees in the general operative grade. General operatives perform physically demanding work. Evidence shows that as employees get older there is increased absenteeism and the CJEU has long since recognised that it is appropriate to have a retirement age in place for jobs with physically demanding roles. 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. The retirement age was set at the age at which the Complainant was entitled to avail of benefits under the company’s pension scheme. This significantly lessened the financial impact of retirement and was an important consideration in the balancing exercise undertaken when considering whether or not a given measure was an “appropriate and necessary” means of pursuing a legitimate aim. The fact that the retirement age was collectively agreed and there was pension provision in place are strong persuasive forces in considering whether a measure was an appropriate and necessary means of pursuing the legitimate aim, as recognised by the CJEU in Palacios de la Villa v Cortefiel Servicios SA (Case C-411/2005), Rosenbladt v Oellerking Gebaudereinigung (Case C-45/09) and Georgiev v Tehnicheski universitet — Sofia, filial Plovdiv (joined cases Case C-250/09 and C-268/09). The 2016 WRC Agreement introduced a mechanism to allow workers apply to work past retirement age, which is an “appropriate and necessary” measure in justifying a mandatory retirement age. Such a mechanism was acknowledged by McKechnie J. in Donnellan v Minister for Justice, Equality and Law Reform and others [2008] IEHC 467 as a relevant factor in conducting any balancing exercise. In April 2020, further changes were made to the policy, allowing employees to work after retirement age, subject to passing an occupational health assessment and limited to a one-year fixed-term contract. The limitation to a one-year fixed-term contract was a proportionate measure which was collectively agreed and had a rational basis, as employees who retire at 65 are not entitled to the State contributory old age pension until they reach the age of 66. This change in the retirement policy did not invalidate the approach taken previously. The CJEU in the cases of Palacios de la Villa and Fuchs v Land Hessen (Case C-159/10) acknowledged that the fact that changes are made from time to time to law on retirement ages, does not mean the existing law is unlawful. Furthermore, the CJEU has noted (in Georgiev) that the provision of a fixed term contract post reaching retirement age as being a relevant factor to consider as part of objective justification. The retirement age in place was proportionate and necessary. The collective agreements negotiated between the Respondent and its unions incorporate exactly the type of balancing exercise envisaged by the Directive, the Act of 1998 and the CJEU in respect of retirement ages. The Complainant had not reached his 65th birthday when the complaint was lodged to the WRC on 9 April 2020. The discrimination alleged relates the outcome of a grievance process on 15 January 2020. That decision was overturned by 1 April 2020, when the JIRC issued a binding decision. The Complainant was well aware on the date of lodgement of the complaint that the letter of 15 January was a dead letter. There was no discriminatory act by April 2020. Evidence of the Complainant - Mr Anthony (Tony) Kenny In November 2019, after requesting to work beyond his 65th birthday, the Complainant attended a meeting to discuss the matter. He told the company that he was fit and wished to continue working. His request was not granted. He appealed that decision. He knew things were winding down, but there was a lot of work decommissioning the bog and his job was still ongoing. His appeal was refused. In May, after he had retired, he received a letter about a medical appointment, but did not want to travel to attend the medical appointment in Dublin due to Covid-19. In July 2020 he was told that his bloods could be done locally. In September 2020 he received further letters about attending medical appointments in Dublin, but he would not go to Dublin. The company said they’d get back to him, but he heard nothing further. Under cross-examination, the Complainant accepted that the workforce had decreased with many redundancies. He said that he was aware about the possibility of staying on at the time. He presumed that he was told about this by Ms Feeney (union official). He was aware of email correspondence in April between SIPTU and the company on his behalf. He lodged an appeal to the WRC on 9 April as he felt he was being unfairly treated. He worked until the end of the month and his retirement date was 30 April 2020. He received a letter dated 8 May 2020 inviting him to formally express an interest in extending his retirement age, which he signed and returned. A letter sent to him on 29 May 2020 about a medical appointment included Covid guidance, but the assurances he received didn’t make him feel any better. He was not happy about going to Dublin. He was uncomfortable being in the Labour Court today. The Complainant acknowledged that following an email from SIPTU to the company, it was arranged that his blood work could be completed by his own GP. He did not refuse to get his bloods done. His issue was with that he was putting himself in danger travelling to Dublin. Evidence of Sharon Doyle – Head of Human Resources Ms Doyle told the Court that the normal retirement age of 65 was well established in the company, with records from the 1980’s referencing that the retirement age was always aligned to the pension age. Ms Doyle outlined the backdrop to discussions which resulted in the “2016 WRC Agreement” which provided a mechanism for a limited number of employees to stay beyond age 65. The focus of that agreement was on sustaining employment while remaining commercially viable. It provided for pay increases and a commitment to no compulsory redundancies. The establishment of the JIRC was a significant part of the agreement. The parties were regular Labour Court users and the aim of the JIRC was to reach agreement in a timely manner by having a binding mechanism with no further route of appeal. Mr Kenny benefited from a 3% pay increase as part of that agreement Ms Doyle told the Court that the successor collective agreement “Just Transition” built on protections provided in the 2016 Agreement. After it was balloted and accepted, Ms Doyle said “the world fell apart”. Thermal flow issues arose on the River Shannon, planning permission for the Shannonbridge station was rejected and the ESB made a decision to close Lanesborough and West Offaly power stations. As a result, the Respondent went from a situation where it expected to have jobs for 800 to 1000 employees to engaging with trade unions on layoff and redeployment. It struggled to provide work for anyone, not just the over 65’s, with limited alternative work available. By October 2019 a number of outstanding industrial relations matters relating to the “Just Transition” Agreement were subject to ongoing discussions, including the retirement age. There was consensus about allowing people to stay on. It was accepted that a mechanism would be put in place and a formal decision made to cement it. A mechanism was 90% agreed through mediation that would allow those over 65 to receive a 12-month fixed term contract of employment provided there was flexibility around roles and agreement to undergo a medical. The medical was necessary in order to assess limitations and put any reasonable accommodations required into place. The 2016 agreement had provided for people to apply to stay beyond 65 through the grievance procedure. The Complainant had lodged his grievance in November 2019 and the decision issued on 15 January. On 1 April 2020 the JIRC issued a decision which reflected 80 to 90% of what was already agreed at mediation. Employees who had already progressed grievances were covered, and it was accepted that a medical would be required. Ms Doyle told the Court that no individual correspondence issued directly to the Complainant while the collective process was ongoing. Any decision from the JRC would be a binding decision and the trade union updated members as engagement was ongoing. That engagement was widely known at the time. On 8 April 2020, Ms Doyle received an email from Ms Feeney, SIPTU, confirming the Complainant’s intention to work on after 13 April in accordance with the JIRC decision of 01 April 2020. There were some outstanding issues relating to pension abatement which could affect the start date and terms and conditions of employment, so she replied to saying that she would revert as she was waiting on information. On 8 May 2020, the Complainant was sent a letter about an extension to his retirement age and in reply he confirmed that he was willing to return to work. A batch of medicals were organised for those employees who wished to stay on, but some did not want to travel due to Covid. This matter was referred back to the JIRC which issued a document on 11 June 2020 regarding the provision of reasonable accommodation for employees attending medical appointments. Ms Doyle said that the Complainant, like most other employees, worked on site where Covid procedures were in place. The company tried to reassure employees that the procedures in place for medical assessments were safer than those in the workplace. As the Complainant had certain medical issues and was concerned about travelling, it was arranged that he could get his bloods done with his own GP. The Complainant never advised the company about his fear of attending appointments in Dublin because of Covid. That fact was never put to the company and only became apparent in evidence at the Labour Court hearing. Ms Doyle said had this been known it would have been feasible to facilitate him with another medical appointment in another location. Ms Doyle confirmed that four medical appointments dates were offered to the Complainant. An offer of a fixed term contract of employment was not extended to him as he did not attend the medical appointment. Ms Doyle said the company heard nothing further after requesting on 22 September 2020 that he confirm if he wished to attend a medical appointment. She could not say if there was any follow-up with Mr Kenny after that date. Ms Doyle told the Court that the company had no expertise in employing people after the normal retirement age of 65 and the purpose of the medical was to identify any reasonable accommodation that may be required. Records demonstrated that chronic illnesses rates increased for employees aged over 55. It is a health and safety measure and was not aimed at discouraging employees. Ms Doyle said the job specification for the role had the Complainant remained was similar to the work that he had undertaken previously. She could not confirm or deny if a risk assessment was conducted for the role and she had no role in deciding on best practice for the company in relation to that matter. Of the ten other people who lodged grievances all attended medicals and received an offer of employment. One individual withdrew from the process, the other nine received fixed term contract of employment. Ms Doyle said that there was no time limit on the offer and the Complainant could still do a medical and be offered a fixed term appointment contract as long as he passed that medical. The Law Applicable: Section 6(1) of the Act provides, in relevant part, as follows: -
Section 6(3(c) provides as follows:
Section 34(4) of the Act provides for certain savings and exceptions relating to the family, age, and disability grounds. Subsection (4) of that Section provides: -
Section 85A (1) of the Act provides: -
Deliberation and Findings The primary facts contended are that the Complainant was discriminated against on the ground of age on 15 January 2020 when his employer refused his request to carry on working after his normal retirement date in April 2020. It is accepted that the Complainant has established primary facts of sufficient significance to raise an inference of discrimination. Having established these facts, the burden of proof shifts to the Respondent to show that discrimination has not occurred. The Complainant lodged a complaint of discrimination on the grounds of age to the Workplace Relations Commission on 9 April 2020, before his mandatory retirement on 30 April 2020. Much of the evidence and submissions made to the Court focused on events that post-dated the lodgement of that complaint to the WRC. The fact that the Complainant’s employment was terminated on 30 April 2020, and that he was offered a fixed term contract subject to passing a medical examination, after his termination are not of relevance to the Court in assessing if an alleged breach of the Act occurred on the 15 January 2020. The Court’s jurisdiction is confined solely to assessing what, if any, discrimination occurred before the Complainant lodged his complaint to the WRC. Was a mandatory retirement age objectively and reasonably justified by a legitimate aim? A mandatory retirement age is discriminatory on age grounds unless it is objectively and reasonably justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary. The Respondent set out that the operation of a mandatory retirement age of 65 was objectively justified by reference to a number of lawful aims, including (a) maintaining employment; (b) preserving and improving terms and conditions of employment among those employees who had not yet reached the age at which they could avail of occupational pension benefits; (c) the provision of a sustainable business; and (d) the protection of the health and safety of employees. The Court heard extensive submissions on why these aims justify the operation of a mandatory retirement age in the company. Ms Feeney, SIPTU, on behalf of the Complainant, accepts that the aims set out to justify a mandatory retirement age are legitimate aims, but it asserts that the means of achieving those aims were not appropriate or necessary. She asserts that the manner in which the retirement policy was implemented in the Complainant’s case cannot be objectively justified, in line with legislation and the code of practice. In this regard, the grievance outcome letter issued to the Complainant did not provide details of the legitimate aims outlined to the Court at the hearing, and the Complainant was never given an opportunity to challenge the health and safety ground. Must a legitimate aim be advised to a worker in writing? Ms Feeney places much emphasis on the fact that the grievance outcome letters issued to the Complainant in December 2019 and January 2020 did not provide details of the legitimate aims outlined to the Court at the hearing. By letter dated 13 December 2020 the Complainant’s application to work beyond his 65th birthday was rejected. The grievance outcome letter stated as follows:
The Complainant’s appeal of that decision was rejected, and the appeal outcome letter dated 15 January 2020 reiterated the four grounds and cited a further consideration regarding:-
Mr Deegan, on behalf of the Respondent, submits that the legitimate aims were clearly expressed, albeit in different terms, in collective agreements and, in any event, it was not obliged to expressly identify the legitimate aims directly to the Complainant in order to justify a mandatory retirement age. It referred the Court to the joined cases C-159/10 and C 160/10 Fuchs and Kohler v. Land Hessesn [2011] ECR 1-06919 where the CJEU stated (at para. 39):
The CJEU in that case found that a lack of precision in national legislation regarding a legitimate aim pursued did not automatically exclude the possibility that it may be justified. The correspondence sent to the Complainant following the rejection of his application to work beyond his contractual retirement age did not set expressly out the legitimate aims that the Respondent relies upon to implement a mandatory retirement age of 65 years. However, in the Court’s judgement this fact does not on its own invalidate the existence of those legitimate aims. As established in the above case law of the CJEU, it is not necessary for a measure to expressly cite in order to objectively justify a legitimate aim. Code of Practice Ms Feeney further submits that provisions of the Code of Practice on Longer Working S.I. 600 of 2017 were not correctly applied in the Complainant’s case, and the refusal by the Respondent to accept his application to work longer was not objectively justified in line the Code of Practice. Mr Deegan asserts that the Respondent fully complied with the Code of Practice in respect of the Complainant’s request to work longer. The Code of Practice sets out best industrial relations practice in managing the engagement between an employer and employee in the run up to the employee’s retirement age. It recommends matters for consideration where a request to work longer than the contracted retirement age is made. It advises that an employer consider if there are good grounds to accept or refuse a request, whether the retirement can be justified on a legitimate and objective basis, and that any request is assessed by reference to objective criteria. The grounds for declining a request should be set out so that an employee understands why a request was declined and can have confidence that his/her case was given serious consideration. An appeals mechanism should be available. In light of the submissions and evidence presented, the Court finds that the Respondent complied with the principles suggested by the Code of Practice in respect the Complainant’s request to work longer. The correspondence issued to the Complaint in his initial application and subsequent appeal set out the reasons why his application was denied at that point in time. As outlined above, the fact that the correspondence did not provide details of the legitimate aims relied on by the Respondent does not invalidate the existence of those legitimate aims. Health and Safety SIPTU submits that the Complainant was never given an opportunity to challenge the health and safety ground. There was no reference to health and safety requirements in the initial appeal outcome, yet the issue of health and safety was relied upon quite clearly by the company. The Complainant’s capability to carry out the role was not challenged, and it was not a requirement to carry out a medical at the time of the appeal. The Respondent says that the health and safety measure is manifestly a legitimate aim which pre-dates the commercial challenges faced by the company in recent years. It asserts that a retirement age of 65 is a necessary and appropriate means of protecting the health and safety of employees in the general operative grade, who perform physically demanding work. 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. Relevant Collective Agreement The 2016 WRC Agreement established a mechanism by which employees could apply to remain in employment after reaching retirement age. It is accepted that under the terms of the 2019 Just Transition Agreement the policy relating to retirement age remained under review and was the subject of ongoing discussions between the Respondent and trade unions at the time of the alleged breach of the Act in January 2020. SIPTU asserts that the Respondent cannot rely on the 2016 WRC Agreement as it related to retirement age, and that there was no collective agreement in place that allowed the company to forcefully retire the Complainant in 2020. It asserts that the 2019 Just Transition Agreement was the relevant agreement in place at the time and despite the unions’ best efforts to reach agreement on retirement age by July 2019, which was the timeframe specified in the 2019 Agreement, the matter had not progressed. Discussions were ongoing and the trade unions did not accept that workers should have to retire at age 65, or that the provision of a one-year contract justified a mandatory retirement age. The trade unions sought to align the retirement age with the State pension age, as the Complainant’s pension provision was totally inadequate to retire. The Respondent asserts that the 2019 Just Transition Agreement was a “successor” agreement to the 2016 WRC Agreement, which built on the terms already provided. It is clear to the Court that the mechanisms provided under the 2016 Agreement remained in place after the 2019 Agreement was agreed. The Complainant availed of the mechanism agreed as part of the 2016 Agreement and was supported by his trade union, when he lodged a formal grievance to stay working beyond his 65th birthday. In such circumstances, the Court finds that SIPTU cannot assert that the 2016 Agreement was of no relevance. The Court acknowledges that during the engagement on a new retirement policy the positions adopted by the Respondent and the trade unions may well have differed over the details of that policy, however, it is accepted by the parties that on 1 April 2020 the JIRC issued a binding decision which specified that “any worker who had registered a grievance with the Company relating solely to being retired at age 65 years to be offered a fixed term contract for 12 months, subject to satisfactorily passing a medical examination in advance”. SIPTU’s position is that the JIRC decision of 1 April 2020 did not supersede the decision made on 15 January 2020 to refuse the Complainant work past his 65th birthday. It submits that the Complainant was never informed about the decision by the Respondent. It was not clear to him, and the Respondent did not make it clear to him, prior to his retirement that he could work past 65. Furthermore, the trade unions were only informed on 12 May 2020 that the Respondent was fully committed to implementing the JIRC decision. At that point the Complainant had already retired. The Court has certain difficulties with the position of both parties in relation to this matter. It is accepted that the Complainant’s terms and conditions were negotiated on his behalf by his trade union. The Court was told that the Joint Industrial Relations Council (JIRC) was a tripartite body established under the terms of the 2016 WRC Agreement to address particular industrial relations issues with a view to issuing binding decisions on the parties to the agreement. Under the terms of the 2019 Just Transition Agreement it was agreed that the role of the JIRC would continue for the duration of that successor agreement. In such circumstances, the Court finds that the Complainant was encompassed by the decision issued by the JIRC on 1 April 2020. SIPTU asserts that the trade unions were only informed on 12 May 2020 that the Respondent was fully committed to implementing the JIRC decision, while the Respondent asserts that as a “binding decision” it was fully committed to implementing that decision. The Court was provided with two letters dated 12 May 2020. A letter from the Chairman of the JIRC dated 12 May 2020 acknowledged that the company was fully committed to the implementation of the decision. A letter from the Respondent dated 12 May 2020 to the Complainant which stated that, subject to receipt of an occupational health assessment report confirming his fitness to work, the company would issue him with a one-year fixed term contract. Ms Doyle told the Court that no correspondence issued from the company directly to the Complainant while collective engagement on a new retirement policy was ongoing. She said that the trade union updated its members, and the engagement was widely known at the time. While the Respondent’s reliance on the trade union to update its members while negotiations were ongoing is somewhat understandable, that does not fully explain the delay in communicating directly with the Complainant in relation to his specific predicament once the JIRC issued its decision on 1 April 2020. The Court heard that Ms Doyle was engaging directly with the union and that she was awaiting clarification in relation to a number of matters, which partially explains that delay. The Complainants own evidence was that he was aware about the possibility of staying on and presumed that he was told about this by Ms Feeney (union official). He confirmed that he was aware of email correspondence between SIPTU and the company on his behalf in April 2020. An email was sent on behalf of the Complainant by his union to the Respondent on 8 April 2020, which formally confirmed his intention to work on after his 65th birthday, in accordance with the interim decision of the JIRC. On 1 April 2020 the JIRC issued a binding decision which specified that any worker who had registered a grievance with the Company relating solely to being retired at age 65 years to be offered a fixed term contract for 12 months, subject to satisfactorily passing a medical examination in advance”. In the Court’s judgement, the Complainant was aware that following that decision a new mechanism was available to allow him to continue working after his 65th birthday. In the Court’s judgment the decision communicated to the Complainant on 15 January 2020 was negated by the decision of the JIRC on 1 April 2020. The Court heard evidence that the Complainant was fully aware of the decision of 1 April and that the union had entered into correspondence with the Respondent about that decision on his behalf. Correspondence of 8 April 2020 opened to the Court makes clear that the Complainant intended to avail of the mechanism provide as a result of the binding decision of the JIRC on 01 April 2020. At that point any detriment posed to the Complainant by the outcome of the letter of 15 January 2020 was no longer in existence. In such circumstances the Court finds that the alleged act of discrimination was reversed before the date of claim, therefore the appeal fails. Objective justification for interfering with an individual’s employment rights requires a proportionality assessment to balance conflicting interests that must be decided on the facts of each case. In the within complaint, the Respondent had a collectively agreed retirement policy where the retirement age of 65 was expressly agreed as a key component of collective agreements concluded with unions. The Court heard that the operation of that retirement age was an appropriate and necessary means of achieving the aims of fairness between workers of different generations and the provision of a sustainable business, while protecting terms and conditions of employment. In the Court’s view the collective agreement concluded between the Respondent and trade unions reflected the type of balancing exercise envisaged by the legislation in relation to retirement ages. That policy was amended in 2020. Both policies provided mechanisms by which employees could make applications to remain in employment beyond retirement age. The Complainant made such an application and was initially unsuccessful in that process. Further to a binding decision of the JIRC, he and other employees were offered the opportunity to work past their retirement age which the Complainant for whatever reason chose not to avail of. Determination For the reasons set out herein, the Court is satisfied that the Complainant was not discriminated against on the ground of age. The Respondent’s appeal succeeds. The Decision of the Adjudication Officer is set aside.
NOTE Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary. |
