THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS
Decision DEC - E2010 - 077
Mr Larry Harrington
(represented by SIPTU)
South Dublin County Council
File Reference: EE/2007/301
Date of Issue: 21 May 2010
Headnotes: Employment Equality Acts, section 6,8, 14 and 77 - conditions of employment - age ground - retirement age - s.34(4) - extension of retirement
1.1. This case concerns a complaint by Mr. Larry Harrington that he was discriminated against by South Dublin County Council on the grounds of age contrary to section 6(2)(f) of the Employment Equality Acts (hereinafter referred to as "the Acts") in relation to conditions of employment contrary to section 8 (1)(b) of the Acts.
2.1 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 8 June, 2007 alleging that the respondent had discriminated against him on the ground of age in relation to his conditions of employment by requiring him to retire at the age of 67. The respondent disputes that its decision to require the complainant to retire at that age was discriminatory on the ground of age.
2.2 On the 19th October, 2009, in accordance with her powers under section 75 of the Acts, the Director delegated the case to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced. Written submissions were received from both parties. A hearing of the complaint was held on Thursday, 11 February, 2010. Further information was sought from the respondent and this was received by the Tribunal on 26 February, 2010.
3. Summary of the Complainant's case
3.1. The complainant submitted that he commenced employment with the respondent in 1974 when it was Dublin County Council. He submits that he was never issued with a written contract of employment at that time, or at anytime afterwards, and upon being forced to retire, when he turned 67, he had 32 years services for pension purposes, whereas he would have required 40 years to obtain full pension entitlements.
3.2. He submitted that his employment status was different to staff employed after 1978 as they were subject to all aspects of an agreed Productivity Agreement specifically that, for the first time, the Council introduced a compulsory retirement age for new employees, being in line with the old age pension qualifying age. He said that he was led to believe that, as he had started in 1974, this deal did not apply to him and that he didn't have to retire as long as his health prevailed. He said there was no other relevant agreement than that of 1978 and a further revision of the Pension Scheme which took place in 1999. The complainant has been a member of the relevant trade unions since 1976, and as such was aware of at least some of the negotiations surrounding the various agreements and arrangements dealing with his terms and conditions, and those of his colleagues.
3.3. The complainant joined the respondent's pension scheme in 1975. The scheme was revised in 1977 and again in 1998. He said that he did not remember if he was given the terms and conditions of the original scheme but denied that any of the schemes included a specific retirement age. He submitted that the retirement date for general services staff, such as himself, who were employed before 1979, was at the discretion of each Local Authority Manager, and referred to a letter from the respondent to that effect. Furthermore, he said that he was asked by an engineer three months before he turned 66 whether he was retiring or not, and he understood this was part of the process.
3.4. The complainant said that three months before he turned 66, he requested an extension of 12 months to his retirement, which he received. However, he said that when he applied for a further twelve months the following year, he did so with the understanding that he didn't have to retire under the regulations of the 1978 productivity deal. He submitted that he believed if he could remain fit, he could have kept extending. In that regard he referred to a letter from the respondent dated 22 June 1993 which stated that "there will be no change in status, privileges, obligations and rights enjoyed as a result of" his move from the old Dublin County Council to the new South Dublin County Council. However, he submitted that, instead, he was forced to retire by the respondent on the day before his 67th birthday (i.e. on 15 December, 2006) despite wishing to continue his employment with it, and was therefore discriminated against on the ground of age.
3.5. The complainant submitted that he was treated less favourably than a number of his colleagues who continued to work into their mid-seventies and referred to a number of comparators in that regard from the old Dublin County Council. However, he knew of only one person, Mr. A, who had stayed on past the age of 66 since 1999. He said he was told that Mr A's job was a high profile one that the respondent found very hard to fill. He took issue with this as, he said, that when Mr A was out sick, he was replaced by a junior member of staff. He also alleged that when Mr A returned from sickness, the respondent brought him back to train up a new depot assistant, who had been driving for 22 years.
3.6. The complainant acknowledged that Section 34(4) of the Acts provides that "it shall not constitute discrimination on the age ground to fix different ages for the retirement of employees" but contended that if an employer arbitrarily sets a retirement age without agreement with staff or their representatives and fails to inform staff of the new policy, then the employer should not be entitled to this protection and cited Donegal County Council -v- Porter as support for this contention. In Porter, it said that the claimants had no written contract and no reference had been made to them of a specific date of retirement. It said that the High Court held that forced retirement was an attempt to unilaterally alter the contract.
3.7. The complainant also referred to the ECJ decision in Felix Palacios de la Villa -v- Cortefiel Servicios SA and the Advocate General's opinion in this case. While it found that the principle of non-discrimination did apply to national laws that set compulsory retirement ages, such measures had to be objectively and reasonably justified in the context of national law by a legitimate aim relating to employment policy and the labour market. It submitted that, in the present case, it cannot be argued that this policy is justified on the grounds of a legitimate aim relating to employment policy and the labour market, given the Government's aim in this regard, as stated in the 2007 Programme for Government, was to "allow those reaching retirement age...to retire if they wish, but those who would prefer to stay at work should be facilitated in doing so". In that context, the complainant also referred to EU Directive 2000/78/EC whereby discrimination may be lawful on grounds of age where specific provisions are necessary. He submitted that no such provisions applied in this case and, in that context, noted that new entrants to the Public Sector after April 2004 can continue to work after 65 as long as they wish.
3.8. The complainant cited a number of cases in submitting that government policy was that someone could stay on as long as they like not that there should be a retirement age, which contradicted the respondent's submission in that regard. In the context of the economic arguments put forward by the respondent to justify its retirement policy, he pointed out that there was still a moratorium in place in South Dublin County Council. He stated that case law showed that, where retirement ages are concerned, a precise age must be given in writing.
3.9. In summary, the complainant submitted that he was treated less favourably than some of his colleagues who continued to work into their mid-seventies. He submitted that his contract of employment, which was not a written document, did not oblige him to retire at 65 or 66. He submitted that the respondent arbitrarily decided to introduce the retirement age. However at no stage prior to his forced retirement was the complainant informed of this policy and he believed that Porter supported his position. He stated that there were no exceptional circumstances except personal and monetary for the granting of extensions to Mr A and Ms B and therefore his personal circumstances should have been considered, particularly as he would not have had a full pension entitlement, and his request for a further extension should have been granted.
4. Summary of the Respondent's case
4.1. The respondent submitted that the complainant was due to retire at age 65 on the 15th December 2005 (i.e. the day before he turned 66). It said that, as he had been employed prior to 1979, it was open to him to apply for a one year extension to the retirement age and that this was approved. It submitted that the granting of this extension has never been a right but rather is at its discretion. It said that the complainant applied for a further years extension but that this was rejected on the basis that in accordance with Council policy he can only receive one extension. It submitted that this decision was conveyed to the complainant's union representative on 15th November, 2006.
4.2. The respondent agreed that it had not provided the complainant with a written contract of employment. However, it submitted in evidence an information sheet on the pre-1979 retirement scheme which, it said, would have been given to the complainant, as well as to all other employees, when he joined that scheme. It stated that the age of 65 is mentioned in the scheme.
4.3. The respondent submitted that it is the stated policy as well as custom and practice of the Council for staff to retire at age 65 and that those employed before 1979 could apply for and be granted a one year extension. No formal agreement was ever entered into, but it was generally recognised that extensions were at the discretion of management. It said that the first extension to the day before turning 67 was generally granted. It said that the complainant was granted such an extension. In relation to further extensions, it said that if a person made a request, it's HR division would consult with the Director of Services, but further extensions are only granted in exceptional circumstances and there were no exceptional circumstances in the complainant's case that justified granting the further extension. The respondent questioned why, if the complainant believed he could continue working upon turning 66, he applied for the year's extension.
4.4. The respondent agreed that there were workers in the old Dublin County Council who worked to age 73 but the cause for this, it said, was that there were no accurate records with regard to dates of birth for individuals and for that reason workers stayed on past the normal retirement age. With regard to Mr A, the respondent stated that, in 2007, he applied and was granted the further extension of this retirement for a year until he turned 68. The respondent submitted that he was allowed an extra year due to personal issues of which the respondent took a sympathetic view, as well as being in order to allow Mr A to train someone up in his post. It denied that Mr A continued to work for it after he turned 68. In 2008, one person, a Ms B, applied and was granted the extension as she had a bereavement when she was due to retire and had looked to stay on. It stated that, in 2006, the complainant was the only applicant and was refused and in 2009 one person applied to continue working at age 67 and was refused.
4.5. The respondent acknowledged that new entrants to the public service can continue to work after 65 and that it is open to any individual to apply for vacancies which arise. However, the respondent submitted that Section 34(4) of the Acts applied. It states that:
"..it shall not constitute discrimination on the age ground to fix different retirement ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees"
This, it submitted, was borne out by case law .
4.6. It cited further case law in submitting that, while there is no mandatory retirement age in Irish law, an extension to a non-mandatory retirement age is at the discretion of the employer. It submitted that the position in Ireland has been that it is open to any employer to set different retirement ages and that the setting of a retirement age is not seen as discriminatory. It submitted that it is necessary to implement its policy on retirement age as in the absence of this its opportunity to renew its workforce of its staff would be severely restricted. It submitted that the enforcement of a retirement age gives the employer the right to manage. In relation to the complainant's argument that it weakens the respondent's justification for the retirement age policy in question, the respondent stated the embargo will not last forever.
4.7. In short, the respondent submitted that the complainant was not discriminated against on the grounds of being treated less favourably than a number of his colleagues. It submitted that the decision not to extend his contract beyond 15th November, 2006, made in accordance with its custom and practice with regard to such decisions, was made on the basis that no exceptional circumstances requiring his continued extension pertained to his situation. It submitted that where exceptions have been made in the case of other employees, exceptional circumstances have pertained in those cases. The respondent therefore submitted that the complainant had not established a prima facie case of discrimination.
5. Conclusions of Equality Officer
5.1. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him/her. If he/she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2. Section 6(1) of the Acts provides that discrimination shall be taken to occur where "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)....." Section 6(2)(f) of the Acts defines the discriminatory ground of age as follows - "as between any 2 persons, ... that they are of different ages." It follows therefore that the complainant must be the subject of less favourable treatment in comparison to another person on grounds of age i.e. because he is of a different age to the comparator.
5.3. The issue for decision by me in this case, then, is whether or not the respondent discriminated against the complainant on grounds of age, in terms of section 6(2)(f) of the Acts and contrary to section 8 of those Acts as regards the age at which the complainant was required to retire by the respondent. In reaching my decision, I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence of the parties at the Hearing.
5.4. The facts of the case are broadly agreed, though there are some issues of contention. However, the salient agreed facts are these:
- The complainant did not have to retire from working for the respondent until he turned 66 years old, at least;
- Shortly before turning 66, the complainant applied to be allowed continue working for a further year. This request was granted;
- Shortly before turning 67, the complainant applied to be allowed continue working for a further year. This request was refused. The complainant was therefore forced to retire upon turning 67 years of age;
- On the other hand, two employees of the respondent, Mr. A and Ms. B, were granted an extension after turning 67.
These facts, at least, are not disputed. It was also not disputed that Ms B retired upon turning 68.
5.5. There remain two relevant facts that are disputed. Firstly, the complainant argues that Mr A continued to work after he turned 68, whereas the respondent submits Mr A did not stay on beyond that age. However, I note that the complainant did not provide any corroborating evidence to his testimony in this regard. Based on the totality of the evidence before the Tribunal in relation to this complaint, then, it would appear to me that Mr A was required to retire when he turned 68 and was therefore granted only one further exemption than the complainant.
5.6. Secondly, the complainant disputes that he was provided with a sufficient opportunity to state his case for the additional years' exemption. However, I note that whether the complainant was provided with a 'sufficient' opportunity to put his case is not the issue in this complaint. What matters is whether the opportunity that was afforded to him was, has been or would be less favourable than a comparable opportunity provided to someone else. In that regard, the complainant has failed to adduce any evidence that it was, and certainly no evidence that he was treated any differently, never mind less favourably, than Mr A and/or Ms B.
5.7. Such are the salient facts of this complaint. The question remains as to whether these facts raise an inference of discrimination by the respondent. The complainant submits they do based on the simple fact that both Mr A and Ms B were allowed to stay on until they turned 68, while he was forced to retire when he turned 67. He submits that this stands alone as prima facie evidence of less favourable treatment on the ground of age.
5.8. Given that Mr A and Ms B were required to retire at the end of the additional extension year in question, I agree with the complainant in so far as he thereby submits that his case turns on whether the respondent was acting in a discriminatory fashion in refusing him an extension of his retirement beyond the age of 67. However, I note that the complainant was the same age as Mr A and Ms B when his application for a further extension was made. Therefore, whatever the reasons for him being refused the extension in question when Mr A and Ms B were granted it, it cannot have been less favourable on the age ground.
5.9. Furthermore, it is well established jurisprudence in relation to discrimination law that discrimination involves the application of different rules to similar situations or the application of the same rules to a different situation. I have already noted that the opportunity that was provided to the complainant to present a case for extending his retirement age beyond the age of 67 was not materially different to the opportunity provided to Mr A and/or Ms B, or anyone else for that matter. Given that the circumstances of their situation was broadly similar, it would appear that the rules the respondent applied to the complainant's situation were not any different to the rules applied to Mr A and Ms B. There is therefore no discrimination in relation to the decision in question on that basis either.
5.10. I have already found that the respondent cannot have discriminated against the complainant in relation to its refusal to grant him an additional year's extension to his retirement age. As this is the essential argument of the complainant's case, it is therefore neither necessary nor appropriate for me to give any further consideration to both parties submissions in relation to the complainant's proper retirement age and, in particular, the question of whether Section 34(4) applies in this case.
5.11. As no other issues arise in this case, I find that the complainant has failed to establish a prima facie case of less favourable treatment on the ground of age.
6. Decision of Equality Officer
6.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
6.2. I find that the respondent did not discriminate against the complainant on the age ground pursuant to section 6(2)(f) of the Employment Equality Acts in terms of conditions of employment contrary to S. 8(1)(b) of the Employment Equality Acts.
6.3. Accordingly, the complainant's case fails.
21 May 2010