(represented by Independent Workers Union)
Southwest Doctors On Call Ltd (trading as SouthDoc)
(represented by Irish Business and Employers Confederation)
File reference: EE/2010/158
Date of issue: 14th May 2014
Keywords: Employment Equality Acts, Discrimination, Fixed Retirement Age, Objective and reasonable justification, Health and Safety,
1.1 This case concerns a complaint by Thomas O’Mahony against his former employer South West Doctors (on call) Ltd trading as SouthDoc that he was discriminatorily dismissed on the grounds of age in terms of 6 (2)(f) of the Employment Equality Acts 1998-2011 [hereinafter referred to as 'the Acts'] regarding being forced to retire.
1.2 Through his trade union representative, the complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 5th March 2010. In accordance with his powers under Section 75 of that Acts, the Director delegated the case on 29th March 2013 to Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Acts. This is the day my investigation commenced. Submissions were received from both parties and a Hearing was held on 17th April 2013. The final correspondence received in relation to information sought by the Equality Officer was on 9th July 2013. In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties.
Summary of the complainant’s case
2.1 Mr O’Mahony submits that after he had taken a redundancy package from Eircom (where he was a Manager) he was approached by an other former Eircom employee to apply for the role of part-time Driver/Attendant with the respondent. He submits that SouthDoc deliberately recruited older people for these roles as they were perceived as safe and reliable. Mr O’Mahony attended an interview and obtained the position. At the interview he maintains that he asked whether he would have to retire at 65. He submits that he was told that he would not. He commenced employment with the respondent on 31st October 2005 aged 61. Mr O’Mahony submits that retirement age was never mentioned at his induction or during his early years of employment. The contract that he signed on 12th December 2005 does not include any reference to a retirement age. He has provided witness statements of three people who worked beyond the age of 65:
- Mr A commenced employment with SouthDoc on 4th December 2003. He turned 65 on 25th February 2004 and retired under protest on 27th June 2008
- Ms B started working with the respondent in 2002/2003 and retired on 30th June 2008 at 69
- Ms C commenced employment with the respondent in November 2003 at age 63 and retired in June 2008 at 67.
2.2 Mr O’Mahony submits that he really enjoyed the job and got on well with the doctors and the patients. His duties mainly involved driving the doctor on duty to treatment centres and housecalls. When the recession came, the respondent’s subvention from the HSE was cut. Mr O’Mahony states that one of the consequences of this was that employees were handed a new contract of employment with a new clause stating the normal retirement age was 65. He submits that the respondent should have drawn his attention to this new clause. Mr O’Mahony did not sign this as he submits that he already had a signed (and countersigned by his employer) copy of his original contract. He heard no more about this issue from the respondent. In fact, on 16th February 2009 he received a letter from Mr D, a HR advisor with SouthDoc, stating ‘as already advised the current terms and conditions contained in your contract of employment are fully maintained.’
2.3 Despite this exhortation that his terms and conditions of employment had not changed, Mr O’Mahony was compulsorily retired on his 65th birthday which was the 23rd December 2009. He submits that this was a way of letting staff go without having to pay redundancy when the respondent hit financial difficulties. He points out that five other former employees have taken cases to the Equality Tribunal on the compulsory retirement issue. Mr O’Mahony maintains that he continues to enjoy excellent health; he is the trainer for two teams (Gaelic football as well as hurling). He also had an unblemished work record.
2.4 Mr O’Mahony states that he was previously a member of SIPTU (which had negotiating rights with the respondent) but was not comfortable with the way they were conducting negotiations so he left. That is why he is represented by the Independent Workers Union.
Summary of the Respondent’s case
3.1 The respondent was established in 2001 as an Out-Of-Hours General Practice Cooperative. It has a Service Level Agreement with HSE South to provide a GP service for urgent medical needs outside of normal surgery hours to the 625,000 people living in Cork and Kerry. Its 2008 budget was €8.8 million of which €7.9 million was pay-related. This allocation was cut by the HSE by 5% the following year. SouthDoc is a demand-led service and has grown from 40,000 calls in 2002 to 200,000 in 2012.
3.2 SouthDoc points out that the advertisement placed during the recruitment campaign said ‘All Driver Attendants will have a full clean driving license and be aged between 25 and 65’. The respondent admits it did not retain a copy of the complainant’s contract on file. They submit that is why they asked him to sign the contract in 2008. The respondent submits that the retirement clause was agreed with SIPTU - of which Mr O’Mahony was a member.
3.3 On 23rd May 2008 Ms E (General Manager of SouthDoc) wrote to Mr O’Mahony (among others) pointing that that there would be structural changes in the organisation and making him the following offer:
To respond to the development we have reviewed the organisation, its current structure and staffing levels. At this stage, and as part of the review process, we are keen to establish the number of staff interested in discussing an enhanced early retirement or voluntary leaving programme. This will facilitate those staff who may be considering leaving the organisation in the near future.
He did not respond to her letter. Through the services of Labour Relations Commission Conciliation Service, SIPTU and the respondent agreed in principle that people over 65 would be retired. The members of SIPTU working for the respondent were balloted and the respondent submits that they agreed to the proposal for rationalisation and change in work practices.
3.4 The respondent accepts the complainant was compulsorily retired on 23rd December 2009. He raised no grievance at the time and they submit that had a very amicable meeting before he left where he merely sought a letter to bring to his Social Welfare local office so he could claim his State Pension.
3.5 The respondent submits that when the complainant received his contract of employment in 2008 he was aware of the retirement age contained within. Mr O’Mahony made no representations either formal or informal regarding having to retire at 65. Since 2008 all staff had to retire at 65. Therefore, the respondent submits that he was on notice of his retirement and that he could have no legitimate expectation that his employment would continue beyond 65. In 2008 they submit that the draft employee handbook was made available in all SouthDoc centres and staff were invited to comment. Section 7.3 refers to retirement. Mr O’Mahony did not take the opportunity to comment.
3.6 Regarding objective justification, the respondent cites Seldon v Clarkson Wright and Jakes:
“It is true that the aims which the Employment Tribunal accepted as legitimate – the retention of associates, facilitating the planning of the partnership and workforce and limiting the need to expel partners by way of performance management – were directed to what could be regarded as being in the firm's best interests. That in itself is not surprising, because firms such as Clarkson Wright and Jakes are in business and must organise their affairs accordingly. They are exposed to all the forces of competition in their chosen market. They are not a social service. This affects the way they choose to manage the partnership and other aspects of their workforce, just as much as it affects the way in which their business as a whole is conducted. But this does not mean that their aims cannot be seen, when viewed objectively, as being directly related to what is regarded as a legitimate social policy. I agree that the Employment Tribunal reached a sound decision on this point and that the aims which it identified were of a kind that, in terms of article 6 of the Directive were legitimate.”
3.7 Therefore, the respondent uses this case to show a respondent may have mixed motives for a compulsory retirement age – for example cost-saving as well as other reasons. The respondent does not deny that cost was a factor but it also states that the retirement age of 65 was justifiable on Health and Safety grounds. Drivers are required to load and unload the car on a daily basis and carry equipment for the doctors. They may find themselves in situations where there is rough terrain and unlit areas a distance from where the car is parked. Occasionally drivers would be asked to assist in the lifting of patients. In direct evidence Ms E cited an example of driver assisting a patient off a fishing boat in Castletownbere.
3.8 The respondent cites Saunders v CHC Ireland where a helicopter winchman was forced to retire at 55. In that case the Tribunal accepted health and safety grounds as objective justification for compulsory retirement for the complainant.
Conclusions of the Equality Officer
4.1 The issue for me to decide is whether or not Mr O’Mahony was discriminatorily dismissed on the grounds of age in terms of Section 6 2 (f) of the Acts contrary to 8(6)(c). Section 6 (1) of the Acts provides that discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated.
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 upon which he can rely in asserting that he suffered discriminatory treatment. 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. Prima facie evidence has been described as ‘evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.’
4.3 Before turning to the objective justification, there is a dispute of facts that needs to decided on. The contract of employment that Mr O’Mahony signed (and was countersigned by his employer) is silent on retirement age. The respondent has a very different demographic profile of employees than most employers in that employees with SouthDoc tended to be older. In contrast to most employers, the custom and practice before 2008 in SouthDoc was that employees could and did remain as employees past the age of 65. It is easy to see the attraction for older workers – the work was part-time and flexible so many used it as a ‘step-down’ from working full-time to full retirement. Mr O’Mahony gave cogent evidence that he and many others aged over 55 were directly approached to apply for these jobs. Therefore, Mr O’Mahony had a legitimate expectation (at least up to 2008) to work after his 65th birthday. Similar to Donegal Count Council v Porter, McLaughlin, Mc Gonigal and Bredin  the issuing of a different contract of employment (now containing a compulsory retirement age of 65) was an attempt by the respondent to unilaterally alter Mr O’Mahony’s terms and conditions of employment and he was prudent not to consent to it.
4.3 Despite his lack of consent, Mr O’Mahony was compulsorily retired when he reached the age of 65.
4.4 Section 34(4) of the Acts states:
Without prejudice to subsection (3) it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntary or compulsory) of employees or any class or description of employees.
However, it has been the practice of the Equality Tribunal to interpret Section 34 (4) in a harmonious way with Article 6 (1) of the Equal Treatment Directive:
Notwithstanding Article 2(2), Member States may provide
those 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.
4.5 Authority for this is Donnellan v The Minister for Justice, Equality and Law Reform where McKechnie, J. states:
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.
4.6 This has been followed by the Tribunal in Saunders v CHC, Paul Doyle v ESB International, Rosanna Nolan v Quality Hotel O’Neill v Fairview MotorsPatrick Dunican and Thomas Spain v Offaly Civil Defence McPhillips v ISS Facility Services and John Roche v Complete Bar Solutions. This instant decision differs from the Labour Court case Hospira and Roper, Needham, Bryson, Ward and Dunnion as that dealt with redundancy payments under Section 34 (3)(d) of the Acts rather than Section 34(4) as in here.
4.7 Therefore, I am satisfied that the complainant has established a prima facie case of discriminatory dismissal and the respondent (even as a private actor) must provide me with objective justification.
4.8 As per Seldon, I fully accept the respondent’s reasoning that it is entitled to give a ‘business-centric’ justification for a compulsory retirement age. In that case Mr Seldon was forced by the respondent law firm to retire at 65 as required by the partnership deed. Mr Seldon lost his case as it was found that the needs of the firm to retain associates and plan for succession did indeed constitute legitimate aims for a fixed retirement age policy. In other words – intergenerational fairness in a practice where there was a greater mix of generations as well as more clearly-defined career trajectories than is the case with the respondent. These are legitimate aims for a law firm but they do not apply to the respondent here. The respondent was not trying to retain younger people or plan for succession; it was simply trying to reduce headcount in the least expensive way. Where Seldon also differs from this instant case is that Mr Seldon knew he had to retire at 65 from the time he became a partner.
4.9 It was obviously cheaper for the respondent to retire people than to make their positions redundant. About 30 people were let go around the same time – 24 were made redundant while 6 were forced to retire. Those made redundant received 4.5 weeks (plus a week) pay for every year they worked. Those who were retired only received a gratuity of 2 weeks pay in total. In Fuchs and Kohler v Land Hessen the European Court of Justice has held that budgetary restrictions can underpin the chosen policy but cost considerations cannot in themselves constitute a legitimate aim within the meaning of Article 6 (1). This is known in the United Kingdom as the ‘costs plus’ rule.
4.10 Turning to the health and safety justification, one does not need to be an expert to realise the physical capabilities required to be a helicopter winch operator are much greater than taxiing doctors around. While occasionally driver/attendants may have to assist in lifting patients, this would only be in non-emergency situations or else an ambulance would be called. In the Saunders v CHC case the respondent provided empirical evidence to show that sick-leave doubled for winch operators aged over 50 thereby showing a valid reason for this fixed retirement age. The respondent in this case has provided no evidence to demonstrate why the chosen cut-off point of 65 is appropriate and necessary especially when employees happily worked beyond it prior to 2008. Nor did they show evidence of exploring a more proportionate response to safety concerns e.g. sending employees over 65 for an annual health check or as in Georgiev v Tehnickheski Unviersitet offer Mr O’Mahony a fixed term contract of employment after his 65th birthday. Although both of these options would also have to be objectively justified as they choose 65 as an age-based criterion. However, they may be less assailable as they are less absolute than the compulsory retirement age that the respondent chose.
4.11 Regarding the Proposal for Rationalisation and Change in Work practices in SouthDoc agreed at Conciliation on 8th September 2008 no mention is made in this document whatsoever to retirement age. Assuming this is what SIPTU members were asked to vote on, the respondent cannot use this as a collective agreement justification when there is no reference to retirement age.
4.12 For the reasons in Paragraphs 4.8 to 4.11, I find that the respondent has failed to provide objective and reasonable justification for the fixed retirement age of 65.
5.1 I have concluded my investigation of Thomas O’Mahony’s complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Acts, that the complainant was discriminatorily dismissed on the grounds of age.
5.3 In considering redress, I must be cognisant that the penalty must be effective, proportionate and dissuasive. Had Mr O’Mahony been made redundant rather than compulsorily retired, he would have obtained almost six month’s salary in redundancy. Therefore I consider the equivalent of this to be the most appropriate redress. I am awarding him €12,000.
5.3 This is redress for the infringement of Mr O’Mahony's statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
Lord Hope,  UKSC 16 paragraph 75
 Gibney v Dublin Corporation EE5/1986
 This is in stark contrast to McCarthy v HSE. In that case, Hedigan J found that Ms McCarthy, a radiographer who also qualified as a barrister, should have known that the standard retirement age for public servants employed before the Public Service Superannuation (Miscellaneous Provisions) Act 2004 was 65.  IECHC 467 Paragraph 126.
 High Court 23 March 1993 (Flood J)
COUNCIL DIRECTIVE 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation
  IECHC 467 Paragraph 126.
 DEC E2011-142
 DEC E2012-086
 DEC E2012-042
 DEC E2012- 093
 DEC E2013-027
 DEC E2013-042
 C-159/10 and C-160-10 Paragraph 74
 C-250/09 and C-268/09 Vasil Ivanov Georgiev v Tehnickheski unviersitet – Sofia filial Plovdiv