Employment Equality Acts
- V -
Aer Lingus Teo
(Represented by Tom Mallon, B.L.
instructed by Arthur Cox, Solicitors)
File reference: EE/2008/152
Date of issue: 23 October 2012
Keywords - Employment Equality Acts - Discriminatory Treatment - Age - Prima facie case - Section 34(4) - legitimate aim or purpose
1.1 This dispute concerns a claim by Ms Elizabethe Sweeny that she was subjected to discriminatory treatment by the respondent on the grounds of age in terms of section 6(2) of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 11 March 2008 under the Acts. On 22 March 2011, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - 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 sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 26 May and 24 June 2011. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S SUBMISSION
2.1 The complainant submitted that she has been employed by the respondent from 25 September 1961 until 1 January 2008.
2.2 The complainant submitted that in September 2007, she was advised that her retirement would commence on 1 January 2008. She immediately challenged this intention and pointed out that there was no retirement date in her contract, that any date ever mentioned was for the purposes of her pension benefits, and that this is separate to her employment contract.
2.3 The complainant submitted that on 20 December 2007, in spite of her challenge which was ignored, the respondent informed her that on the grounds of age she had to remove herself from the workplace within four working days. The complainant further submitted that she had no choice but to comply with that instruction.
2.4 By way of background the complainant submitted that the age of 65 is used as a reference point for the definitions of 'early' 'normal' and 'late' retirements and is not contained in the contract of employment. The complainant submitted that the rules for the occupational pension scheme are independent of the employment contract but that the respondent is using this as a reason for ceasing her employment.
2.5 The complainant submitted that at no stage during her employment was mandatory retirement clearly communicated to her and that at no stage did she expect or believe that she would be facing compulsory retirement.
2.6 The complainant submitted that she left employment from 2 January 2008 as directed by her employer.
3. SUMMARY OF THE RESPONDENT'S SUBMISSION
3.1 The respondent submitted that the claimant is entirely wrong and misconceived when she asserts that there is no specified condition of here employment relating to the date of retirement, in that every employees contract of employment has been subject to an express or implied term that it ran until the normal retirement date, that is after attaining the age of 65.
3.2 The respondent submitted that the contractual document in existence dated from the early 1960's and makes no reference to a retirement date. However, the absence of an express reference does not mean that there was not an implied termination date.
3.3 The respondent submitted that from an examination of its records, only one person in the preceding 10 years remained in employment after normal retirement age and that, in that case a senior technical specialist was asked to remain to allow for the orderly handover of duties and knowledge to his successor. It was also noted that the vast majority of the respondent's employment have left employment in advance of their normal retirement age.
3.4 The respondent submitted that it does not rely on the normal retirement date provided for in its pension scheme as determining the date of termination but rather it relies on the facts of its operations and referred to the EAT decision of Delaney v Electrical Contractors Safety and Standard Association Limited (UD1322/2003). In that decision, the EAT explicitly dealt with the question of establishing a normal retirement date for the purposes of the Unfair Dismissals Acts, 1977 and determined, inter alia, that ". . . it is clear that the term normal retiring age means a definite or particular retiring age in the relevant employment". The respondent further submitted that its normal retirement age is well known to all staff, including the complainant.
3.5 The respondent submitted that Section 34(4) of the acts provides for the imposition of a normal retirement date and that this is not discriminatory. The respondent submitted that the validity of this section is beyond doubt having regard to the decision of the Court of justice of the European Union in Palacios de la Villa v Cortefiel Servicios SA (Case C-411/05). In this case the Court of Justice determined that the national legislation in question was objectively and reasonably justified by a legitimate aim relating to employment policy and the labour market.
3.5 The respondent also cited the case of Donnellan v Minister for Justice, Equality and Law Reform (High Court  IHEC 467) wherein McKechnie, J held that whilst national Governments could impose a retirement age by means of domestic legislation, that legislation must be "compatible and comfortable" with the Directive. Mr. Justice McKechnie went on to hold that the compulsory retirement age of Assistant Garda Commissioners imposed by statutory instrument was objectively justified by reference to a legitimate aim and the means used were appropriate and reasonable.
3.6 The respondent submitted that it is clear that in each case where the European Court of Justice and the Irish High Court have each expressly addressed the issue of mandatory retirement ages, they have upheld the validity of. It further submitted that if the complainant's contentions were successful, it would be perverse that the independent trustee of the pension scheme could pay pension benefits from a normal retirement date (under the scheme) while an employee continued to draw his or her salary from the respondent.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent discriminated against the complainant on grounds of age, in terms of section 6 of the Acts and contrary to section 8 of those Acts.
4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc  IRLR 246, stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ...".
4.4 Having heard the evidence from both parties, I am satisfied that the respondent has established that the retirement age for relating to its non-flying staff as being 65. I note that prior to the enactment of the Employment Equality legislation, this limit was set at 60 for women but that this was amended to 65 for both men and women to reflect the provisions of the legislation. I also note that no age was explicitly set out in the complainant's contract of employment, but that it was common practice for those employees who reached the age of 65 to retire. I further note that the complainant was an employee was a trustee of the pension scheme. I appreciate that the majority of staff leaving the respondent's employment in recent years have done so by way of early retirement. However, I am satisfied that the complainant was aware, or reasonably ought to have been aware, that 65 was the retirement age for non-flying staff in the respondent's employ. Although the complainant suggested that she had not been informed of this change, I am satisfied that, amongst other things, her time spent as a trustee of the pension scheme would have made her aware of those changes. Therefore, although her contract of service does not contain an express provision stating a retirement age, I find that 65 was the implied retirement age for all of the respondent's non-flying staff and that an appropriate provision can be inferred into the complainant's contract.
4.5 There can be no doubt that the decision to retire someone at a particular age is a decision that is influenced by that person's age. The Court of Justice of the European Union has identified such decision as amounting to direct discrimination on a number of occasions (e.g. Domnica Petersen v Berufungsausschuss fur Zahnärzte fűr den Bezirk Westfalen-Lippe Case C-341/08; Deutche Lufthansa AG v Gertraud Kumpan Case C-109/09 and others).
4.6 The respondent relies on the provisions of Section 34(4) of the Acts as a defence for its position in imposing a mandatory retirement age upon the Complainant. Section 34(4) of the Acts states that
(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.
4.7 The respondent submitted that the validity of Section 34(4) is beyond doubt having regard to the two cases cited, Palacios de la Villa v Cortefiel Servicios SA (Case C-411/05) and Donnellan v Minister for Justice, Equality and Law Reform (High Court  IHEC 467). No arguments to the contrary were put forward at the hearing and I am satisfied that, having considered both judgements, this is the case.
4.8 However, in regard to the context of both of these cases, I note that both refer to situations where national legislation has imposed a specific retirement age. In the instant case, no argument was put forward as to what legislation is in place imposing a specific retirement age upon the complainant.
4.9 In considering the impact of Section 34(4), I note that McKechnie, J stated in the Donnellan judgement that "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. the should be proportionate".
4.10 In the case to hand, the only argument that has been put to me as regards justification in terms of a "legitimate aim or purpose" is that "it would be perverse that the independent trustee of the pension scheme could pay pension benefits from a normal retirement date (under the scheme) while an employee continued to draw his or her salary from the respondent."
4.11 However, it is well established in both Community and Irish law that a pension entitlement does not necessitate retirement (Case 262/84 Vera Mia Beets-Proper v Van Lanschot Bankiers NV  ECR 773; Case 152/84 Marshall v. Southampton and South West Hampshire Area Health Authority  ECR 723) & (Howell v JJ. McCreery (Case No. UDA654/2007) January 3, 2008; Donegal County Council v Porter (1993) E.L.R 101; Bannon v Two Way International Freight Services Limited (Case No. UD127/2003). Accordingly, I find that, in this case, no legitimate aim or purpose to justify discrimination has been put forward.
4.11 Therefore, I find that the complainant has established facts from which discrimination may be inferred and that the onus to rebut that presumption falls upon the respondent. In the circumstances of the extant case where there is an absence of a justification, along the lines noted by McKechnie, J above, I find that the complainant is entitled to succeed.
4.12 When considering the amount of redress, I have had due regard to the fact that the complainant has been in receipt of a full pension from the date of her retirement.
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the age ground has been established, and that the respondent has failed to rebut that presumption. In the circumstances outlined above, this complaint succeeds.
5.2 In accordance with section 82 of the Acts I award the complainant €5,000 in compensation for the effects of the discrimination suffered. As this does not include any element of remuneration, it is not subject to income tax.
23 October 2012