The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2014-071
(Represented by Ronan Daly Jermyn Solicitors on day 1 and
Marguerite Bolger S.C. instructed by Ronan Daly Jermyn Solicitors on day 2)
File reference: EE/2011/334
Date of issue: 23 October 2014
HEADNOTES: Employment Equality Acts - Sections 6 and 8 - Age - Conditions of Employment – Discriminatory Dismissal
1.1 This dispute concerns a claim by Mary Keane that she was discriminated against by NUI Maynooth in relation to conditions of employment and discriminatory dismissal in terms of section 8 of the Employment Equality Acts on the grounds of age contrary to section 6(2)(f) of the Acts.
1.2 The complainant referred her claim to the Director of the Equality Tribunal on 15 March 2011 under the Employment Equality Acts. On 23 April 2013, in accordance with his 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(1) of the Acts and as part of my investigation I proceeded to a hearing on 3 July 2013 and final information was received on 17 July 2013. In evaluating all the evidence I concluded that it was necessary to consider a referral to the Court of Justice of the European Union under the preliminary reference procedure pursuant to Art. 267 TFEU. I informed both parties accordingly and requested submissions from them. Following receipt of these submissions I then held a second hearing on 13 June 2014 to consider such a referral.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 On 10 February 2010 the complainant reached the age of 65. She submits that she was not allowed to work past retirement age and was forced to retire on 30 September 2010 and this amounts to age discrimination.
2.2 Because of a pension shortfall and impending financial restraints she asked the respondent if she could return to work after her retirement date as an occasional or contract employee in the Residence Office. She wanted to work until age 66. She had a meeting on 20 September 2010 with the Deputy Director of HR but her request was refused. The respondent said that as they were not renewing contracts for younger staff members, it would be unfair if she was given employment.
2.3 She contends that there are retirees, both academic and administrative staff, who are employed at NUIM. Also, in March 2011 a ‘workshop for retirees’ hosted by the President of NUIM was addressed by retirees who are currently employed by the respondent and referred to their right to work.
3. SUMMARY OF THE RESPONDENT'S CASE
3.1 The respondent confirmed that the complainant started work for them on 9 May 2000 as an Executive Assistant until her retirement 30 September 2010. The rules of the pension scheme state that the normal retirement date is the 30 September following an employee’s 65th birthday. The complainant’s contract does not contain an express retirement clause. In 2008 the respondent’s contracts were revised and the retirement age of 65 is now included.
3.2 The respondent submits that the complainant was aware of her retirement date. This is shown by a letter she wrote to the Bursar on 22 October 2009 in which she confirms her retirement date as 30 September 2010. Also, it was a term of the pension scheme and was stated on pension statements that would have been received by the complainant. In these circumstances the respondent submits the retirement was an implied contractual term.
3.3 The respondent relies on section 34 (4) of the Employment Equality Acts which states “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.” The respondent submits that it operates its’ retirement age consistently and it is only on an exceptional basis that a very limited number of individuals remain beyond 65 years.
3.4 The respondent denies that the remark attributed by the complainant to the Deputy Director of HR about renewal of contracts was made.
3.5 The respondent submits that at the time of the complainant’s retirement they were subject to the requirements of the Employment Control Framework Agreement of January 2010. The respondent was, as a public service employer, subject to a requirement to reduce staff numbers by 6% over a two year period. During one of the meetings with the complainant she was referred to the Framework Agreement which stated: ‘the filling of any posts under the terms of the Framework should, wherever possible, give priority to the employment of new or recently qualified staff over those who are retired.’ At this time opportunities were reduced. Fixed-term contracts were being terminated, employees were being redeployed to other posts and some posts were not being filled. The respondent submits that its obligation to comply with the Employment Control Framework Agreement constitutes a legitimate aim which objectively justifies their reliance on its mandatory retirement age of 65.
3.6 The respondent cites the Palacios case¹ to support their contention that an employer can introduce a mandatory retirement age where there is objective and reasonable justification. The respondent submits that the Employment Control Framework Agreement was designed to promote employment and job retention and its implementation therefore provided a legitimate aim.
3.7 Individual requests to remain past the normal retirement age are examined when they arise and acceded to in very limited circumstances. From 2006 to December 2011 there were 92 pensionable retirees. None of these continued working after retirement. Only four retirees, who then opted out of the pension scheme, remained in employment. Their circumstances are as follows:
1. An academic: a department director whose contract was extended for 2 years whilst a critical review of his Department was being undertaken,
2. An academic: a researcher who obtained funding that was directly referable to the individual (himself). He was given a part-time fixed-term contract,
3. An academic: who was the named researcher on a projected externally funded by EU grants, and
4. An administrator: who stayed for a further 16 months for exceptional circumstances particular to the individual.
3.8 To support their retirement age policy the respondent cited the ECJ case of Fuchs and Anor² in which the Court held that a provision of German law stipulating a retirement age of 65 for permanent civil servants did not breach the EU Equal Treatment Directive and noted the aim of establishing a balanced age structure in order to encourage the recruitment and promotion of young people.
3.9 They submit that the complainant did not raise a grievance in relation to her mandatory retirement date at any time during her employment. She had previously raised issues about her pension but these were resolved.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 I have to decide if the complainant suffered discriminatory treatment on the grounds of her age in relation to conditions of employment and if she was dismissed in a discriminatory manner. 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 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 contract provision for a retirement age but the complainant does not contest that the general retirement age in the respondent was on 30 September following an employee’s 65th birthday. She asked to stay on beyond this, until her 66th birthday, to assist in making up a pension shortfall. The respondent refused to make an exception to their normal retirement age.
4.3 The respondent states they have a normal retirement age which is allowed under section 34 (4) of the Acts and that this retirement age is operated consistently and exceptions are only allowed on an exceptional basis. 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.”
4.4 The respondent contends that their implementation of the retirement age in relation to the complainant is objectively justified because of the requirement for them to comply with the Employment Control Framework Agreement as it was designed to promote employment and job retention and therefore falls within the category of “legitimate employment policy”. The cases cited by the respondent and other cases in this area ruled on by the Court of Justice of the European Union deal with cases that generally could be seen to be part of a positive employment policy. This claim deals with an employment policy that was part of an overall reduction in staff numbers. This difference caused me to consider a referral and was why I asked both parties for submissions on the matter.
4.5 The complainant did not express views as to whether I should or should not make a referral. She repeated her contention of discrimination and asked for a decision accordingly.
4.6 The respondent expressed a strong view that there was no need for me to make a referral. They submitted that the referral was unnecessary and inappropriate, in that it would create expenses and inconvenience for both parties when any decision I made could be appealed by both sides to the Labour Court and then on to the High court. They also submitted that a referral would cause undue delay and would not finalise the case, as my consequent decision could still be appealed. Furthermore, they submitted that the referral had not been requested by the parties and it would be more suitable to come from the Labour Court or the High Court.
4.7 They also contended that the Employment Control Framework Agreement represents national/government employment policy in that it relates to the Irish labour market in the light of very difficult economic crisis and as such it comes within what Article 6 of Directive 2000/78 provides may objectively justify age discrimination. They rely on the Palacios decision which applied Article 6 to a similar provision on Spanish national employment policy, which was the justification of a compulsory retirement age by the need to create employment opportunities. They also expressed the view that whether or not the Employment Control Framework Agreement justifies a compulsory retirement age, in the light of section 34(4) and/or Article 6, is a matter for the Equality Tribunal, as the national court.
4.8 The respondent also submitted that I should take the views of the parties into account. They contend that the principles of equivalence and effectiveness would be breached if a referral was made against the wishes of the parties, in relation to a matter of interpretation.
4.9 I have considered all aspects of the situation and considered the written submissions and taken into account the direct evidence of the respondent at the hearing. I conclude that such a referral would not be in the best interests of the parties, particularly when they have further avenues of appeal after I issue my decision. I will therefore make a decision based on all the evidence, statutory provisions and legal precedents available to me at this point in time. However, I would add that a question of a referral may be raised by either party or by the national Court or Tribunal of its’ own motion. I refer to paragraph 2 in Salonia v Poidomani³ “In providing that a reference for a preliminary ruling may be submitted to the Court where “a question is raised before any court or tribunal of a Member State”, the second and third paragraphs of Article 177 of the EEC Treaty are not intended to restrict this procedure exclusively to cases where one or other of the parties to the main action has taken the initiative of raising a point concerning the interpretation or the validity of Community law, but also extend to cases where a question of this kind is raised by the national court or tribunal itself which considers that a decision thereon by the Court of Justice is “necessary to enable it to give judgement”.”
4.10 In this case I have found that the submissions of the respondent have clarified matters to the extent that a referral is not necessary in the particular circumstances of this case.
4.11 In investigating whether the respondent’s ‘means of achieving that aim are appropriate and necessary’ I must first look at whether their policy of making employees retire on 30 September following their 65th birthday was applied consistently. The complainant contends there are a number of employees who have been allowed to stay beyond the general retirement age and she was discriminated against by not being allowed the same concession. At the hearing she gave details of three people who she contends were allowed to remain beyond the respondent’s general retirement age. The respondent gave evidence, which I accept, that one person returned to help out in the Access Office each October and was paid on an occasional basis for a few days work. Another was an academic who retired at the normal time but returned to complete research on a voluntary basis and received no pay. The third was the administrator cited by the respondent who was asked to stay on for 16 months to complete work on student records because of his specialist knowledge. Of the other three cases given by the respondent two had obtained external research funding which was linked directly to the individual and would have been lost if the individuals had not carried out the work. In the other case a department director was retained for two years whilst a critical review of his department was being undertaken. The respondent considered that the review could not have been completed without his involvement and he retired when the review was completed. I note that these people were no longer members of the pension scheme when they were employed after the normal retirement date.
4.12 I am satisfied that the respondent considered the complainant’s request to work past her normal retirement date and the request was turned down because they considered there were no exceptional circumstances that would have justified extending her employment. This consideration was done in accordance with their normal practice. It was also done with due cognisance to the Employment Control Framework Agreement which constrained them in relation to the filling of posts. Given that this decision was based on the complainant’s age I find that she has established facts from which discrimination on the grounds of age may be inferred. The onus to rebut that presumption falls upon the respondent.
4.13 The respondent relies on the Palacios case in demonstrating that their own policy is objectively justified. In Palcios the CJEU accepted that a national law fixing a mandatory retirement age was a legitimate public policy measure to address youth unemployment and effect a better distribution of work between the generations. In this case we are not dealing with a national law fixing a mandatory retirement law. Also, when the complainant left she was not replaced by a younger person. Indeed, in following the restraints of the Framework Agreement, she was not replaced by a new person being recruited by the respondent. Her duties were carried out by staff already working for the respondent.
4.14 The act of not allowing the complainant to work past her retirement age meant the respondent employed one less person and they moved closer to achieving the targets set for them under the Framework Agreement. The respondent gave evidence that other measures taken to achieve their targets were to terminate fixed-term contracts, employees were redeployed to other posts and some posts were not filled.
4.15 The Palacios decision stated “the measure, although based on age, is objectively and reasonably justified in the context of national law by a legitimate aim relating to employment policy and the labour market, and-the means put in place to achieve that aim of public interest do not appear to be inappropriate and unnecessary for the purpose.” The difference between Palacios and this case in relation to employment policy and the labour market is that the respondent is, in general, not replacing people who retire or who leave their employment in other ways. The Employment Framework was part of a wider Government policy to make savings in the public service in times of recession. However, it is still part of an employment policy and the respondent, in line with many others, have used a number of measures to reduce the numbers in their employment.
4.16 In the case of Donnellan v Minister for Justice, Equality and Law Reform (High Court  IHEC 467) 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 a statutory instrument was objectively justified by reference to a legitimate aim and the means used were appropriate and reasonable. In the circumstances of this case I am satisfied that the respondent has established that they have a retirement policy with a legitimate aim and the means used in this case are appropriate and reasonable in achieving that aim and in helping them to comply with the Employment Control Framework Agreement. I conclude that the retirement policy was applied to the complainant in a fair manner and that no discrimination on the grounds of age took place.
I have investigated the above complaint and make the following decision in accordance with section 79 of the Employment Equality Acts:
- that the respondent did not discriminate against the complainant in relation to conditions of employment on the grounds of age contrary
- that the respondent did not dismiss the complainant in a discriminatory manner on the grounds of age.
23 October 2014
¹ Felix Palacios de la Villa v Cortefiel Servicios SA (Case C-411/05  E.C.R. I-8531
²Fuchs and Anor v Land Hessen C-159/10;  IRLR 1043 (ECJ).
³ Maria Salonia v Giorgio Poidomani and Franca Baglieri, nee Giglio (preliminary ruling requested by the Tribunale Civile, Ragusa - Case 126/80