ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00003693
Complaint(s)/Dispute(s) for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 12/10/2016
Workplace Relations Commission Adjudication Officer: John Tierney
In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Attendance at Hearing:
Complainant’s Submission and Presentation:
The Complainant is a Career Grade Technician in the Horticulture Department of the respondent’s organisation. As part of this Department the Complainant attends monthly planning meetings. In January 2016, the Complainant was not notified of the Horticultural HDD 2016 planning meeting by email as was customary, however, the Complainant believed this omission was an oversight and he attended the meeting as normal. In the course of the meeting the Complainant was informed that these services would no longer be required and his employment with the Respondent would cease. This was both extremely shocking and humiliating for the Complainant and undermined his dignity in the workplace. The Complainant by letter dated the 15/01/16 requested an explanation for the cessation of his employment. The Complainant received a letter on the 01/02/16 notifying him of the termination of his employment. The letter confirmed that since 2009, the Respondent, has a discretion, unless a business case for retention is successful, to retire staff at the age of 65. The Complainant was not notified or made aware of a retirement age of 65 prior to this letter of the 15/01/16. The Complainant confirms that there is a compulsory retirement age of 68, however, denies that there was a ‘normal’ retirement age with the respondent of 65. The Complainant claims that the Respondent has failed to show any or any adequate objective justification for establishing a compulsory retirement age at 65. The Respondent claims that the retention of staff beyond the age of 65 would block the creation of opportunities for the promotion of existing staff and the recruitment of new staff into priority areas, but has provided no or no adequate evidence of this to the Complainant. The Complainant is aware that other staff have continued to work after 65. The Respondent claims that there is a discretion to extend the normal retirement age to 68 in circumstances where a ‘Business Case’ is successful. The Complainant confirms that he was never made aware of a ‘Business Case’ which could extent his employment. The Complainant claims that he was never afforded the opportunity to put forward a ‘Business Case’ or was notified of same prior to the notification of termination of the Complainant’s employment. The Complainant claims that the provision of a ‘Business Case’ to support an extension of the Complainant employment to 68 is a function of the Respondent and not the Complainant, especially, in circumstances where the Complainant was not aware of the ‘Business Case’ procedure. The Complainant in addition to the foregoing has suffered distress and anxiety as a result and since the Horticultural HDD 2016 planning meeting and from January 2016 to the termination of his employment on the 13/06/2016. Since raising his complaint of discrimination on the grounds of age, the Complainant has been victimised in his employment by, inter alia, being the subject of inappropriate and hurtful comments by the respondent, its servants and agents, and by being subjected to a forced departure from the workplace that was humiliating and undermining. The Complainant had an expectation of employment until 68. There is a clear and undeniable link between the Complainant’s age and the unlawful and discriminatory treatment to which he has been subjected. The key legal points which will be made on behalf of the Complainant at the hearing of this matter include:
1. That the Complainant has been the victim of discriminatory treatment on the grounds of his age contrary to the Employment Equality Acts;
2. That the Respondent is in breach of the aforesaid Acts and in particular of the Equality (Miscellaneous Provisions) Act 2015 in failing to provide any or any adequate objective justification for the retirement age imposed upon the Complainant;
3. That the Complainant has been subjected to victimisation arising from his having raised the lawfulness of his purported retirement age with his employer. The Claimant cited two comparators as required to support his case.
The Complainant has made a number of financial commitments on the grounds that his employment would continue until he was 68. The termination of his employment at 65 will have a detrimental effect on the Complainant’s financial position. In those circumstances the Complainant requests the earliest possible hearing of this matter.
Among the case law cited in support of the Claimant’s case were: Donnellan v Min. for Justice and, Sweeny v Aer Lingus.
Respondent’s Submission and Presentation;
The Claimant has the same as other staff in his group, the following contractual clause in his contract at clause1 (a);
Retirement will be compulsory at 68 years of age, but an officer may be required to retire at any time after reaching the age of 60 years.
Service after 65 years of age is non-pensionable (as per clause 1b). A copy of the contract was provided to the Hearing.
In March 2009, the Respondent introduced a change programme to address the ongoing need to take the organisation up to 2030. It was on foot of this that the Director exercised his discretion and decided, following consultation with employee representatives, to reduce the retirement age to 65 for all salaried staff. The Claimant is a member of a trade union, whose representative participated in the National Partnership Committee and Group of Unions Joint Rationalisation Implementation Group 2009 which led to the reducing of the retirement age.
In October 2015 at a Horticultural Business Planning Meeting, the Claimant’s manager, in the context of staff planning for the year ahead, whether he would be around later in the year. The Claimant responded that he did not know. No further discussion took place at this point.
On 15 January 2016, the Claimant wrote to the Respondent claiming that he was entitled to retire at 68 pursuant to his contact.
On 26 January 2016, the Claimant underwent his annual review. The Claimant retirement was raised again, however he claimed that it was the first he had heard of it, despite having already written to the Respondent on 15 January 2016 and the matter being referred to at the Horticultural Business meeting.
The Claimant was responded to on 1 February 20126 advising that he be retired on reaching the age of 65. In this letter he was afforded the opportunity to bring a business case for retention in the organisation and extend his retirement age. He did not available of this option. In a letter replying to the Respondent his claimed this was a breach of contract. The Respondent replied that discretion could be exercised but in the absence of a business case he would be retired at 65.
On 1 March, the Claimant wrote to the Respondent seeking to meet with a member of the organisation to discuss the matter. The Respondent agreed to same. Arrangements were made by the Head of HR to meet on 18 March; however the Claimant deferred the meeting for personal reasons. Two other scheduled meetings were also declined by him.
On 8 April 2016, the Respondent advised the Claimant he would be retired on 13 June (given no engagement had been made to make a business case). The Claimant engaged a firm of solicitors who wrote to the Respondent inter alia to have the retirement withdrawn and explain how the retirement was objectively justified. They were advised that all staff on the type of contract of the Claimants' were retired at 65 and it was objectively justified on the basis that it facilitated essential man power planning, creation of opportunities for promotion of existing staff and recruitment of new staff in priority programme areas.
In regard to the Claimant’s claim that he was subjected to humiliating comments and victimisation, he never provided any evidence of this. The Respondent advised the Claimant’s solicitor that it could be raised through the grievance procedure. No complaint was ever lodged.
Among the case law cited in support of the Respondent case were: Palacios de la Villa v Cortefiel Servicios, Fuchs v Land Hessen
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
[Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act and the Equality (Miscellaneous Provisions) Act 2015.]
I have considered the submissions and evidence presented to the Hearing.
Firstly, I will deal with the manner with which the Claimant conducted his dealings with the Respondent. The Claimant’s solicitor informed the Respondent by letter on 27 May 2016 that:
‘Our Client has no confidence that any such business case process has or could be fairly applied to him’
‘our Client has no confidence in the grievance procedures’
The Claimant had at all time access to the professional advice of his trade union, his solicitor and as evidenced at the Hearing, counsel.
The Respondent’s organisation engages with several trade unions and its procedures provide for the right to representation throughout these. The Claimant did not instances any evidence where the Respondent showed any prejudice against him or where he did not get a fair hearing based on natural justice. In fact, it is the Claimant who did not give the Respondent a fair hearing.
I have concluded that the Claimant deliberately avoided any interaction with the Respondent and their representative. When asked by the Hearing why he did not attend any of the three meetings offered to discuss his situation concerning his proposed retirement he stated he ‘was busy’. Given that the Claimant invoked his entitlement under the equality legislation and engaged a senior legal team, then this matter must have been of immense importance to him.
Furthermore, it is difficult to believe that he was unaware of the retirement age of 65 as published in the staff handbook and website. The Claimant could at any time before his retirement, been professionally represented in his dealings with the Respondent yet he deliberately chose not to. I believe he acted in bad faith.
Secondly, pursuant to s. 34(4) of the Employment Equality Act 1998 – 2015 an employer is entitled to have a compulsory retirement age. Furthermore the European Equality Directive (200/78/EC) requires a compulsory retirement age to be objectively and reasonably justified by a legitimate aim and for means of achieving that aim to be necessary and appropriate. The objective grounds presented by the Respondent are;
They facilitate essential man power planning across the organisation.
They ensure the creation of opportunities for promotion of existing staff.
The recruitment of new staff into priority programme areas.
I accept these as legitimate objective reasons under the equality legislation.
I accept these as legitimate objective reasons under the equality legislation.
The Claimant contract clearly gave the Respondent discretion of a retirement age between 60 and 68. In 2009, following consultation with staff representatives, it was objectively regularised at 65.
For the above reasons I do not find the claims well founded and they fail.
Dated: 16th December 2016