The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION NO. DEC-E2011-067
(Represented by SIPTU)
Longford County Council
(Represented by Local Government Management Services Board)
File reference: EE/2008/565
Date of issue: 30 March 2011
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6 and 8 - Age - Conditions of Employment
1.1 This dispute concerns a claim by Mr Mel Kiernan that he was discriminated against by Longford County Council in relation to his conditions of employment in terms of section 8(1)(b) of the Employment Equality Acts on the grounds of age contrary to section 6(2)(f) of the Acts.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 21 August 2008 under the Employment Equality Acts. On 15 December 2010, in accordance with her powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 18 January 2011 and final information was received on 24 January 2011.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submits that he worked for the respondent as a General Services Supervisor. The general retirement age was 66 for outdoor workers but they were allowed to work beyond 66 and in some cases into their 70s, up to 73. The complainant wanted to work beyond 66 in order to give himself more service towards his pension.
2.2 The complainant submits that the respondent forced him to retire at age 67, thus refusing him the same retirement age as others had been permitted.
2.3 The complainant submitted the outcome of a Freedom of Information request he received from the respondent in August 2008, which showed that from 1998 to 2008 a total of 14 outdoor employees had worked beyond the normal retirement age of 66.
o In 2000 one employee retired aged 70
o In 2001 one employee retired aged 66
o In 2004 one employee retired aged 67
o In 2005 there were three employees, one aged 68 & two aged 73
o In 2006 there were two employees, one aged 68 & one aged 70
o In 2007 there were four employees, two aged 66, one aged 67 & one aged 72
o In 2008 (up to the date of the FOI request) one employee retired aged 68.
2.4 The complainant also submitted a document signed by the complainant and 11 other outdoor workers who attended the meeting which stated: "At a Council meeting regarding Health and Safety; Pensions and Retirements, held in the Park House Hotel, Edgeworthstown on 26th April 2006, I witnessed and heard the Director of Finance, Mr Tommy McDonald, explain to us all at that meeting, that indoor staff had to retire at the age of sixty five but as regards outdoor staff, there was no legislation in place, as to when they must retire. He recommended strongly that anyone who did not have full service, they should work on to gain more service."
2.5 The complainant submits that being forced to retire in circumstances that were different to others, who were allowed to work on, amounts to discrimination on the grounds of his age.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent denies that any discriminatory treatment took place and submits that the complainant has failed to demonstrate any evidence of discrimination as required by the Employment Equality Acts.
3.2 The respondent submits that the complainant was employed as a General Services Supervisor on terms and conditions of employment in accordance with a national agreement for the grade. His contract of employment which he signed 6 July 1999 states that the "Superannuation Code shall apply". The statutory provisions in the Local Government Superannuation Consolidation Revision Scheme 1998 and Public Services Miscellaneous Provisions Act, 2004 stipulate that retirement is mandatory at age 65. The respondent, in accordance with the Group of Union and Local Government Staff Negotiations Board, accepted a retirement age for outdoor employees of 66.
3.3 The respondent acknowledges that between October 1998 and 31 December 2006 a total of nine outdoor employees remained beyond 66. Subsequently the respondent submits that it took appropriate and necessary steps to address this departure from the required mandatory retirement age. It drafted a copy of the Council's retirement policy which confirmed that 66 was the retirement age for outdoor employees. It also included an appropriate revision to address, on a phased basis, the retirement of existing employees who had already reached their 66th birthday. The policy was accepted by all the Employee Representative bodies and on 18 December 2006 the respondent circulated a letter to all employees, including the complainant, informing them of the policy.
3.4 The respondent submits that the terms of the retirement policy were applied equally and in a similar manner to all employees and since its implementation on 1 January 2007 no one reaching their 66th birthday has been allowed to stay on. The revised arrangements for those who had exceeded the accepted retirement age on 1 January 2007, which included the complainant, were also applied equally. Furthermore the respondent assisted the complainant regarding the use of annual leave he had accrued at the time he retired in such a way as to help his service and therefore improve his pension. He stopped work on 29 June 2007 but 291 days leave were taken into account and his retirement date was 28 August 2008. At which time the complainant was sixty eight. This option was also made available to another worker in similar circumstances.
3.5 The respondent submits that the fact there may be an age difference between the retirement age of another employee does not of itself constitute discrimination. They submit that the complainant was treated in the same way as all employees.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to decide if the complainant suffered discriminatory treatment on the grounds of his age in relation to his conditions of employment. 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 presented at the hearing.
4.2 Section 85A (1) of the Employment Equality Acts, 1998 - 2007 states: "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." This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.
4.3 It was accepted by both sides that the general retirement age for outdoor workers was and remains sixty six. It was also accepted that from the year 2000 onwards a number of exceptions were made. A total of fourteen employees were allowed to stay on beyond their 66th birthday. In some cases this was due to their particular skills that were in short supply. However, the respondent accepted that the criteria got "looser and looser" and anyone who expressed the wish to do so was allowed to stay on during this period. The complainant contended that the meeting with Mr McDonald demonstrated the respondent's policy at this time and three fellow workers gave evidence at the hearing to confirm his recollection of the meeting. Mr McDonald has since retired and was not available to give evidence at the hearing. The respondent submitted a memorandum from Mr McDonald in which he denied making the comments attributed to him. What is clear is that until the end of 2006 there was no impediment to outdoor staff working past their 66th birthday.
4.4 In 2006 the respondent's management were concerned that this approach to retirement for the outdoor workers gave them no certainty over manpower and pension planning. They therefore decided to re-introduce a retirement age of 66 for outdoor workers. This policy was discussed with the Trade Unions through the respondent's Partnership Committee and accepted by all parties. In December 2006 all outdoor employees, including the complainant, were informed accordingly and the policy was introduced with effect from 1 January 2007.
4.5 The complainant was sixty six on 5 May 2006 and was therefore beyond the retirement age that was introduced on 1 January 2007. Along with four other permanent employees in a similar position he was asked to retire in June or July 2007. As stated earlier he was allowed to use outstanding leave as service and he effectively retired in August 2008, when he was 68. The complainant wanted to carry on working and contends that he was treated differently than those who were allowed to work on before the new policy was brought in, five of whom worked beyond their 70th birthday. The respondent contends that the policy it re-introduced was objective and clear and necessary for its' legitimate aim to be able to clearly carry out manpower and financial planning, and that it was in accordance with the Superannuation Code. They further contend that the complainant was treated in the same way as all those who were in the same position as him when the new policy was brought in.
4.6 In a High Court Judicial Review, 2009 1104 JR, Aoife McCarthy and the Health Service Executive, Mr Justice Hedigan decided that the complainant in that case would have had a "broad awareness of the retirement age" and "may be deemed as "on notice" that there was an applicable retirement age by virtue of the superannuation scheme". In this case the complainant's contract did not have an explicit provision for a retirement age but stated the "Superannuation Code shall apply". However the Superannuation Code stated that employees should retire at 65 and there was an agreement in place that outdoor workers would retire at 66. Furthermore the respondent allowed any outdoor worker who wanted to continue working past their 66th birthday and to retire when they wished. That was the complainant's expectation when he reached his 66th birthday.
4.7 EU Council Directive 2000/87/EC of 27 November 2000 establishes a general framework for equal treatment in employment but provides at Recital 14 "this Directive shall be without prejudice to national provisions laying down retirement ages" and Article 6 provides "Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary." The respondent contended that their policy was implemented for legitimate aims; financial and manpower planning. Whilst I am not considering their aim in relation to anyone who was under 66 on 1 January 2007 I do have to consider it for the complainant who was past his 66th birthday on 1 January 2007. The respondent allowed this and would have planned accordingly when they did not make him retire at age 66. Working beyond 66 was at the discretion of the employee and nobody who asked to work on had been refused. Therefore, at the time the complainant reached sixty six it was custom and practice within the respondent that there was no retirement age. I therefore conclude that making the complainant retire before his legitimate expectation does not satisfy a legitimate aim and I find that the complainant's enforced retirement was discriminatory on the grounds of his age.
I have investigated the above complaint and make the following decision in accordance with section 79 of the Acts that the respondent did discriminate against the complainant in relation to his conditions of employment on the grounds of his age contrary to S.8 (1) (b) of the Acts and in accordance with section 82 of those Acts:
I award the complainant €10,000 for the discriminatory treatment suffered,
And order the respondent to award the complainant five year's service towards his pension entitlement, backdated to his date of retirement.
30 March 2011