ADJUDICATION OFFICER DECISION
Complaint Reference No.
Date of Receipt
Date of Adjudication Hearing: 12/10/18 and
Workplace Relations Commission Adjudication Officer:
In accordance with Section 41 of the Workplace Relations Act,
This case has been submitted as a claim for Discriminatory Dismissal and a claim for Minimum Notice. The Claim is strongly contested by the Respondent.
The first day of hearing was adjourned on October 12, 2018 as the Claimant was ill. The case proceeded on December 18, 2018.
Both parties made extensive oral and written submissions. The Complainant was represented by Brian Hallisey, B.L instructed by Comyn Kelleher Tobin Solicitors and the Respondent by Donnacha Mc Carthy BL instructed by BDM Solicitors.
I asked the respondent to provide an Age Profiling of Staff at the business to assist in my investigation. I also requested a copy of the staff handbook raised during the latter part of the hearing. This information was duly received copied to the Complainants Representative and commentary followed on 13 February 2019.The Complainants representative objected to the latter-day provision of the staff handbook, as the complainant had no recall of the document, nor was it put to him at hearing. I will return to this later in the body of the decision.
Summary of Complainant’s Case:
The Complainant was employed full time from 8 May 1995 to 4 October 2017 at the Respondent family business. The business supplied home, garden, DIY and electrical products. He earned €25,000 per annum. The Complainant described his role as that of Sales Advisor, Mechanic and Department Manager.
The Complainant has claimed that he was discriminated against on grounds of age in contravention of Section 6(2) of the Employment Equality Acts, discriminatorily dismissed and denied minimum notice. He cited the most recent date of alleged discrimination as 4 October 2017 which was the date he officially retired from the business.
Counsel for the Complainant outlined that the complainant had held roles of Sales Advisor/Mechanic and Department Manager at the Respondent business and had been compulsorily retired on reaching his 65th birthday, having worked for over 22 years at the business. He was not formally notified of this termination of employment.
The Complainants representatives spent some time outlining the employment documentation which the complainant had received during the tenure of his employment.
1. 8 July 2005 Statement of Terms of Employment. Retirement Age did not feature in this document.
He went on to receive a contract in 2007 but did not sign and return it. He had no recollection of receiving a Contract dated 2011.
The Complainant first learned of his enforced retirement 3 months prior to his departure by way of one discussion with the owner, who informed him, “You are going in October”.
Counsel submitted that the Complainant had not planned to retire at age 65 as he was fully capable and competent to work on at the business. He had diversified into the sales area over the years, these were high value sales and health and safety considerations were not an impediment to his continued working there.
He had received a reassurance from the owner that he could work for as long as he wanted, and he relied on this assurance. The Complainant was not aware of any contractual basis or objective justification for his retirement. He was also aware of another former employee, who had worked on after her retirement. He contends that he had been discriminatorily dismissed on grounds of his age.
The Complainant remains vey disappointed by his treatment, having worked without incident for an extended period. He sought a high level of compensation in respect of the impact of the Respondents actions to terminate his employment.
Summary of the Complainants Evidence:
The Complainant recalled that at the commencement of his employment he sold and repaired garden equipment. He worked alone at the beginning, but it became busier as sales amounted to the major part of the work.
He recalled the circumstances surrounding, Mr B, his direct colleague and Mr A (owner) discussion in around 2016 or early 2017. The Complainant was in attendance. Mr B stated that he was going at 65. The Complainant recalled that Mr A addressed him and said that he “needn’t worry as you can stay on as long as you like” He formed a plan to stay on.
In early August 2017 Mr A came to the workshop and told the complainant that “You will be gone in October “In seeking clarification of his earlier assurances that he could stay on, the complainant was informed that “things change” The Complainant responded by saying that as he was to retire now, he was seeking redundancy. A discussion followed on an old Dumper truck that the complainant had borrowed from the business to lay chippings during the bad winter. He had kept it in his shed at home and offered to buy it. Mr A told him to “keep it”.
The Complainant confirmed to Mr A that he hoped to take on bus driving. He told the hearing that he recalled a colleague of his who had lost her husband and worked on post age 65 to an extended age. He mentioned another ex-colleague who had returned post retirement on 3 occasions. What followed was a discussion on health and safety. He then asked for a 3-day week, but this was refused by Mr A, who told him that he could return in February and he would be paid cash on sales. The complainant felt unable to do this and no further arrangements were made.
The Complainant submitted that Mr A knew that he wanted to work on as selling machinery was a job he liked and formed 85% of his working role. He confirmed that a proposal was made to offer him a retirement party during his last week but he “was not into those things “and did not accept the gesture.
During cross examination, he confirmed that his role involved fixing machinery and sales. He submitted that he was not informed of a retirement age of 65 when he was recruited in 1995. The complainant said that retirement meant nothing to him at that point. He was aware that lots of people work on past 65.
When asked by Counsel why he withheld his signature from the 2007 contract, he replied “I don’t know about that “He confirmed that he had not even looked at the 2011 contract. He had not returned it. He thought he may have left it on the job. He did not follow his managers instructions that he was to take it away, read it and return it signed. He believed that he already had a contract and probably didn’t have time to read it. He did not contradict counsel on the 2011 contact. In working back with his own counsel, he confirmed that he had not recorded a written receipt for the 2007 contract.
He confirmed that he had received pension documents which indicated age 65 in retirement.
The Complainant disputed that most of his work was workshop based “My work was mostly sales” He disputed that the workshop was unduly heavy, dangerous and dirty work. he confirmed the risks detailed on the 2005 hazard sheet had applied to him. He did not have a substantial sick leave record. He had been diagnosed with a specific medical condition from 1999, he managed this condition.
When asked whether Mr Bs successor did the same work, the complainant answered that he did both sales and workshop. He had not been asked to participate in any personal risk assessment.
In response to Counsels question of whether he thought that people get too old for hazardous work? the complainant answered perhaps at 80 years of age. The Complainant replied that Mr B had made a personal decision to retire at 65.
The Complainant confirmed that he had a recall of just one conversation with Mr A, where he was assured of no upper limit to his retirement age. This one conversation had stuck out in his mind and he relied on it.
He confirmed that he had not contested the departure from that assurance during the run up to his retirement. He denied having a conversation with his Manager where the manage told him that “he wouldn’t be far behind him “in respect of his own planned retirement at age 65 in July 2018.
He disputed the timing of the suggested retirement party. He said it was suggested 1 or two days before he left rather than the suggested 6 weeks. He reaffirmed that he didn’t want a party. In response to Counsels questions that he had not exhibited signs of being upset on leaving, the complainant submitted “A Person might not show it “. He confirmed that he did offer to pay of the dumper truck.
The Complainant understood how Mr A and his manager formed the impression that he was preparing for retirement in terms of planning to secure a bus licence, but he had not progressed on this. He confirmed that he was denied a redundancy payment but did not lodge a grievance as a result
He confirmed that he had asked for a 3-day week and Mr A was prepared to visit in the Spring on a commission only basis. Most of the work was contracted out at that point and the discussions did not prosper. He stated that a person might not show their upset.
In response to being asked about the passing of time before he raised complaint, he answered that he did a lot of thinking, he had a personal loss and decided to let matters lie until the new year. He had not worked since he left the respondent business. He had been ill. He had recently taken on restoring vintage tractors for his own interest. He told the hearing that the owner’s family and his own family had always been on good terms over the years.
He confirmed that he was not happy to retire and wished to emphasise his point on this. His job meant a lot to him. He had not been aware that the Respondent was going to outsource the repairs. His new colleague had joined him prior to Mr Bs retirement in 2016 and he had transferred skills to him.
He confirmed that he had received a pension from his employer when he reached 65 years of age which was subsequently augmented by the State benefits.
In referring to Section 33(4) of the Employment Equality Act, as substituted by Section 10 of the Employment Equality (Miscellaneous Provisions) Act, 2015
Without prejudice to subsection (3) it shall not constitute discrimination on the age ground to fix different ages for retirement (voluntarily or compulsorily) of employees of any class or description of employees if
(a) it is objectively and reasonably justified by a legitimate aim and
(b) the means of achieving that aim are appropriate and necessary
In the instant case, the statement of Terms and conditions dated 8 July 2005, was silent on the retirement age and the respondent was seeking to cast the retirement age as an implied contractual term. This was rejected by the complainant as he had not altered his employment documentation since first reception in 2005. The retirement age was neither an express or implied term of contact and it is an accepted principle in contract law that a party cannot unilaterally vary or amend a contract outside a joint agreement
He contended that the reference to pension was a red herring and the truth was that while others were happy to retire at 65, the complainant wanted to continue.
He argued that the Respondent had not demonstrated an objectively legitimate aim behind the retirement age. There were no personalised assessments completed and no consideration given to having him work on past 65 to 66 or 67, even by scoping out an increase in time spent in sales. Another worker was permitted to stay on until age 73 and the respondent had applied a retrospective analysis to Health and Safety and Objective Justification which was not good enough.
He contended that the Respondent had presented an antiquated view of a workplace and had overlooked the dangers of neglecting to assess the individual for individual risk.
In relying on case law, Counsel cited ADJ 6654,A Box Office Cashier V an Arts and Entertainment Centre, which reflected an inconsistency in the application of a retirement age which undermined the policy applied.
In referencing ADJ 5391, A Book keeper V A Retail Business, this decision upheld a discriminatory dismissal claim on grounds of age in 2017 and commented on the law relating to retirement ages and was critical of traditional views of a timing of standardised retirement dates.
The Complainants Counsel went on to reference the Labour Court decision in Connaught Airport Development and John Glavey AD 16/74, where the Court accepted that the complainant did not have knowledge of a retirement age of 65 as the express term had not been inserted in his contract. The Court found that thee was no fixed retirement age and the complainant was dismissed due to age.
In referring to Saunders v CHC Ireland ltd DEC -E2011-142, Counsel stressed that the facts of the current case were inconsistent with Saunders.
In referring to Valerie Cox V Rte. (A DJ 6972)., the Adjudicator found that there was no reference to a compulsory retirement age in either the contract or staff manual.
In referring to Quigley V HSE  IEHC 654, Counsel referred to a successful application for injunctive relief restraining termination of employment, pending final decision at trial, where the High Court that other employees were not forced to retire and permitted to stay on post retirement.
In seeking a decision in the case, Counsel sought compensation towards the top end of the scale to reflect the spirit of the Eu Directive. The Complainant representatives submitted that relations had truly soured between the parties as a direct consequence of the complainant’s compulsory termination of employment. He had endeavoured to resolve the issue outside the formal setting, to no avail.
CA-00018266-002 Minimum Notice
The Complainant submitted that he had 22 years of service and any termination of employment required 8 weeks’ notice in accordance with the Act and that the reference to notice being in writing was reflected in the 2005 Statement of Terms of Employment and not honoured.
Summary of Respondent’s Case:
The Respondent disputed both claims and Counsel outlined the background to the case. The Business was started by the present Owners Father in 1954 and currently employs 40 staff, most of whom are retail operators and the remainder spread across office, stores, delivery and management. The present owner, Mr A and his wife now manage the business. They ae both very proud of how the business has transitioned and developed through the generations.
The Complainant together with another worker, were employed at the workshop, which has been outsourced since the complainant’s retirement in October 2017.
The Respondent business presides over a contractual retirement age of 65 years of age and Counsel disputed that the complainant was not on notice of this. The retirement age of 65 can be objectively justified by the legitimate policy aims of health and safety, workforce planning and avoiding the humiliation of who would be involved in dismissing them for incompetence if no retirement age ensued. Setting of a retirement age of 65 is an appropriate and necessary means of achieving the policy aims. The Respondent acknowledged that retirement age was not delineated in 2005 employment documentation given to the complainant, however, this was remedied in 2007 and 2011 contracts of employment, when Age 65 Retirement became an implied term of the complainant’s contract. The Respondent went on to submit that the Respondent does not apply a blanket type policy or absolute retirement age as evidenced by the compassionate ground extension and the supplementary offer of Summer work extended to the complainant.
The Respondent clarified that the complainant’s core role was repairing lawnmowers and chain saws and buying them for the store. Primarily, he worked in repairs.
The Respondent outlined that a couple of years back they had granted an employee an extension of time posts her anticipated retirement date. This was prompted by an executive discretion and compassion in the immediate aftermath of the unexpected loss of her husband.
Counsel submitted that the respondent had openly discussed retirement with the complainant and he had received his Pension benefit statement on an annual basis which flagged his imminent date of retirement. The Respondent was responsible for providing a high level of health and safety in a work environment and it was untenable to expect an open-ended retirement date. The respondent argued that the complainant had not been wronged by them.
Counsel went on to submit that both men’s jobs in the workshop were the most dangerous jobs in the enterprise, it was not work suitable on health and safety grounds to a person over 65. In referring to a hazard Identification sheet, dated 2 March 2015, the Respondent outlined the associated risk of hazard and accident prevention methods.
1. All Employees working in the repair shop will be competent to work on repairs.
2. Confidence and knowledge are a pre-requisite of safe repairs.
3. New or Relief workers will be inducted prior to operations.
4. PPE will be available
5. Damaged Tools must be repaired
6. Lawnmowers or chain saws to be turned on outside the workshop.
The respondent also dedicated time to describing how contracts were issued at the company. Contracts were first used in 2005 and while silent on retirement age, the respondent was clear that this was an implied term of the contract over 28 years of business. The Respondent had not returned the 2005, 2007 or 2011 contract he was given. He recorded his signature saying that he had received a copy of the 2011 contract, but it ended there. The Respondent named 4 employees who had all retired at 65.
The Respondent submitted that the Complainant has accepted a retirement pension which consistently flagged a retirement age of 65. The Respondent found the complainants ignorance of his retirement date to be exaggerated and unfounded. The Respondent contended that the complainant’s retirement was always subject to a mandatory retirement age of 65 as an implied term from the outset of his employment until it became an express term in 2007 and 2011.
The Complainants Colleague, Mr B retired in 2016 aged 65. This ought to have copper fastened the business norm of retirement as Mr B worked side by side with the complainant. The Respondent hotly disputed that the complainant could only have been aware of his own retirement date in late September 2017. It was the owner’s practice to initiate a lead in discussion on enticement some three months before the departure date. This happened in the complainant’s case and it did not provoke a counter response outside a clarification on whether retirement was at 66 to coincide with receipt of the state pension. The Complainant refused to receive a pro-offered retirement party. Instead, he agreed to receive ownership of a Dumper which the owner had previously loaned him. This constituted a retirement present.
In the run up to his retirement, the complainant sought a lump sum on retirement, which was refused by the owner. The Complainant went on to share that he was hoping to secure a bus licence. He also enquired into the prospect of working a 3-day week and was informed that it may be possible in the summer time on a commission basis.
The respondent completely refuted any indication that he would make cash payments to the complainant while he was in receipt of DSP payments.
The Complainants last day of work was 28 September 2017 as he was owed holidays. The Owner had sought him out to shake his hand only to be informed that he had gone home early. The respondent had absolutely no idea that the complainant had any issues with his retirement until a Solicitors letter materialised in January 2018.
The Respondent had no reason previously to set out a justification of retirement age of 65 as it had been accepted by the workforce. The company has now had to re-visit these reasons and expand on them on foot of the complainant’s challenge to this implied term of contract.
Summary of the Owner/Director of the Business. Mr A.
The Business was started in 1954 by the Owners Father. He had a very strong affinity with the business, working there as a student. He and his wife became Directors in 1999.
Retirement had happened at age 65 at the business “forever “. This practice was inherited from his Fathers time.
Contracts had not been a feature of this time and Mr A instigated these in 2005. He recalled the complainant commencing at the business as he had approached him for work following redundancy at another business. At that time, the business did not have someone with mechanical knowledge.
Mr A gave examples of 5 names of past employees who had all retired at age 65. He maintained that nobody could work at the business and miss this key fact, that retirement followed a 65th Birthday.
He explained the unusual case of a past female employee, who was office based. She was about to retire when her husband passed away and she requested to stay on. She stayed on 1 day per week and increased to three days.
Mr A confirmed that the complainant was hired for repair work and in later years, while still repairing, he took on sales, which were seasonal, peaking in the summer months. He disputed that sales were 80% of the complainants work and contended that repairs formed the lion’s share of his work. The chainsaw cohort, which was dangerous and hazardous work.
Contracts were changed in both 2007 and 2011 to improve operations at the Business.
Mr A confirmed that the repairs aspect of the business had been contracted out in February 2018.
Mr. A recalled that he had adopted his usual approach with Mr B by approaching three months out from his retirement date and Mr B had no issues and retired seamlessly. He denied that the complainant had been in proximity to that discussion.
Mr A submitted that he had never issued an assurance to the complainant or anyone else that they were permitted to continue to work post retirement date. He stated that “It didn’t happen”. He recalled that Mr C had been hired before the complainant’s retirement and the complainant had trained him in. During the three months prior to retirement conversation, the complainant did not refer to any past undertaking given to allow him to remain post the retirement date. He declined a leaving party saying that he wished to remain below the radar. He did not pick up any signs of dissatisfaction from the complainant. He appeared to accept the offer of the dumper truck as a retirement gift .M D understood he intended to retrain as a bus driver.
He recalled that the complainant requested if he could return on a past time basis, but nobody returned like that. The complainant did not take it any further and did not ask for a cash payment. He retired on October 5, 2017. He was surprised by this claim and the business had never had to address of a claim of age discrimination.
Mr A then outlined the objective reasons for the reason retirement age was set at 65. Operation of Hoist requires a good reaction from a safety point of view. Hearing capacity is not the same after 65 and senses become reduced. Safety is paramount and if problems arose, the business would have to terminate employment. It would be dangerous not to apply an outer limit to retirement age as others needed to be given a chance at the business on an inter-generational fairness basis.
During cross examination, Mr A submitted that notes of the complainants hiring in 1995 had not been retained, but that he was involved in hiring him. He recalled that the complainant tended to spend all his time in the workshop and in or around July 2013 had to be spoken to to spend more time front of house, in the shop. He disputed the complainant’s evidence that he spent 80-85% of his working time on sales.
He confirmed that the complainant received a copy of the 2007 contract where the age of retirement was clarified on the advice of the Health and Safety Advisor to the Company. He confirmed that the complainant had never raised the disparity in retirement age and the age where Old Age Pension became payable.
Mr A confirmed that he wished to rely on the 2011 contract in respect of which the complainant acknowledged receipt. He wished to avoid a situation where staff may be humiliated if they couldn’t muster the workload as it was a known fact that workers more than age 65 slow down. There were strong health and safety Policy reasons why the complainant retired at age 65 and these reasons were arrived at on an objective basis. They were universally applied and advised by a health and safety expert. They did not single out the complainant, who was not party to a specific risk assessment. He confirmed that he had received external advice on retirement age.
When challenged that Health and Safety concerns were not an issue in sales, Mr A reiterated that the complainant did not work solely in sales.
Mr A submitted that the complainant had an opportunity to raise a grievance regarding his retirement date with either of the Directors or his line managers. He did not indicate that he did not want to retire prior to his retirement.
In answer to a question on how the complainant was assessed as unsuitable to continue? Mr A referred to the Staff Handbook of 2011
Mr A acknowledged that the complainant had very few sick days but had an accident with an Angle Grinder some 5 to 6 years back. He contended that he was slowing down at the rate of any normal human being and observed that he was not as safe as a 45-year-old. There was no suitable work for him post age 65.
Mr A sought to put a correct context and background on the retention of the Clerical staff member on a part time basis up to age 73. This was a humane gesture of support in a bereavement situation and these were exceptional circumstances. The other retiree had undertaken deliveries, where there was no issue with health and safety. Mr D adopted the approach of looking at the job first to ascertain its safety.
Counsel for the Respondent emphasised that the complainant had not raised an oral or written complaint regarding his dissatisfaction at leaving before the formalised approach January 2018.
Evidence of Mr I (Pension Advisor)
Mr I was a Trustee/Pension Advisor to the Company Pension Scheme. He confirmed that the complainant had made an inquiry regarding drawing down benefits in 2013/2014 and was fully aware of age 65 signifying retirement. His Benefits were linked to his retirement age. The Insurance company did not require sight of a contact of employment.
Evidence of Mr D, Line Manager
Mr D was aware of the company retirement age from the moment he started with the business, referring to it as “common knowledge”. He submitted that the sector had a divided time between sales and repairs. In 2015, the Health and Safety had completed a Hazardous Assessment sheet.
He stated that he was not involved in the 2007 contracts but had managed the 2011 round of contracts. All staff were issued these contracts which mirrored the previous 2007 contract. He recalled that he followed up the 2011 contract with the complainant, some two weeks post issue, only to be told that he would deal with the matter.
He recalled that during August 2017, the complainant confirmed that he would soon be retiring as he had told him that his own retirement date would soon follow him. He asked him whether he had prepared himself for retirement? During September, the complainant indicated that he would love to come back on a three-day week and he suggested that he should discuss it with MR A.
In answer to the question whether a continuation of work was viable given the nature of the hazards at play, he confirmed that a hazard management plan and safety statement were in existence, but it was important to grow a younger force .In his 17 years at the business and ten years as manager , this was the first time that a retirement had dealt with in this way .
During cross examination, he confirmed that his start date of 2001 had been marked by agreed terms and conditions on retirement, pay, pension and health insurance. He did not have a written contract. He agreed that he would retire at 65. While he was not involved in the contract round of 2007, he recalled that new employees had joined on site and a unified contact came into being. He received the contract, read it and it was open to him to raise issues. He confirmed that he could have refused to sign it. There were no changes in the 2011 contract. He recalled that the complainant was the only member of staff not to sign the 2011 contract and he reported this to his Boss.
He agreed that as you get to a certain age, you slow down. He confirmed that the retirement policy was in place since 1954. A 65-year-old can’t do the same job as a 55-year-old worker. Changes in reflexes occur.
He confirmed that the Company had not assessed the complainant as an older worker or referred him for a medical assessment.
Counsel for the Respondent emphasised that the complainant had not raised a grievance and was the sole exception to the 2011 contract signatories.
In closing for the Respondent, Counsel reaffirmed the universal contractual retirement age of 65. This placed an obligation on the employee to retire at 65
Article 6(1) of Council Directive 2000/78/EC transposed into Irish Law in Section 33(4) of the Employment Equality Act, 1998 as substituted by Section 10 of the Employment Equality (Miscellaneous Provisions) Act, 2015
Member states may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they ae 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 denied that the complainant had been discriminatorily dismissed because of a long term pre-determined contractual retirement age. This commenced as an implied term of his employment 1995 -2007 where it was expressed in writing and presented to the complainant in 2011. The Complainant was surrounded by colleagues who retired consistently at aged 65. The Respondent went some way to agreeing with the complainant that one party alone cannot unilaterally alter or vary the terms of an employment contract , however, they submitted that the absence of an express reference to retirement age in the 2005 contract does not prohibit an implication of a term for same in arriving at the conclusion that the 2007 and 2011 contracts merely expressed the custom and practice of the employment which had previously been implied .
In relying on the jurisprudence in the Labour Court Case of Eragail Eisc Teoanta V Richard Lett EDA 1513, Counsel pointed to the distinguishing features between termination of employment by retirement and dismissal on grounds of age. The Court pointed to many avenues in which a term of retirement “can be provided in an employee’s conditions of employment, expressly or by implication, or it can be provided by incorporation where some other document or instrument, of which the employee had notice, can be read in conjunction with the formal contract of. employment “
In referring to Mc Carthy V HSE  21 ELR 165, the Court called on two determinants
1 The Officious by Stander Test
2 Implication by custom
Officious Bystander test in Shirlaw V Southern Foundaries Ltd  2 KB 206
Prima Facie that which in any contract is left to be implied and need not be expressed I something so obvious that it goes without saying that if, while the parties were making the bargain, an officious bystander were to suggest some express provision for it in the agreement they would testily suppress him with a comment “OH of course “
Custom and Practice as cited in O Reilly V Irish Press 71 ILTR 194:
…..so notorious , well known and acquiesced in that in the absence of agreement in writing it is to be taken as one of the terms of the contract between the parties ……it is necessary in order to establish a custom of the kind claimed that it be shown that it was so generally known that anyone concerned should have known of it or easily become aware of it
The Respondent disputed the correct application of Glavey as the complainant had been appraised of the retirement age and provided with information from which he could discern the retirement age. He also disputed the application of Cox as documentary evidence of a contractual age of 65 applied to the complainant from 2007 and 2011 contracts. The only exception was on compassionate grounds.
The Complainant was treated identically to his colleague who retired in 2016, thus disputing the relevance of Quigley and HSE, the only exception followed the Employers discretion to make reasoned and justified exception in the case of the compassionate case.
The Respondent submitted that it accepted that it bore the burden of proof in objectively justifying the retirement age. IN referring to the IRHREC Guidelines on retirement and Fixed Teem Contacts 2018, placed several legitimate aims found to be objectively justified
1 Preserving operational capacity of armed forces, police, prison, emergency services
2 promotion of vocational integration of unemployed older workers
3 encouraging recruitment and sharing employment inter generation
4 Balanced age structure in employment
5 workforce planning
6 avoiding disputes on fitness to work
7 Protection of health and safety
The Respondent relied on Palacios de la Villa V Cortefiel Servicos SA C -411/05, where the ECJ found that a Spanish law providing compulsory retirement at 65 was objectively justified by the need to promote employment of younger people.
They cited the application in Rosenbladt V Oellerking Gebauderinigungsge , C-45/09, which held that a compulsory retirement at 65 for a long serving part time cleaner was in accordance with a collective agreement
The Respondent further relied on Fuchs and Kohler v Land Hessen C 159/10 and C 160/10, which held that a mandatory retirement age of 65 for state prosecutors did not beach European Law as the aim of establishing a balanced age structure to on intergenerational fairness did not exceed a legitimate aim.
The Respondent concluded that the objective justification offered by the Respondent for having a compulsory retirement age of 65 are legitimate ones supported by EU and Irish Case Law. The Health and Safety justification is borne out by Saunders V CHC Ireland Ltd DEC E 2011-142 and Michael Chzarnowski v Trans Dev light Rail ltd DEC E2016-070
The Respondent concluded that the complainant had been retired in accordance with Section 34(4) as the retirement was a necessary and appropriate measure taken in pursuit of a legitimate aim , given that 65 is a generally recognised retirement age in this county and reflected in the earlier CJEU jurisprudence for work force planning purposes and to avoid confrontative humiliating experiences in terms of diminishing capacity .Saunders affirmed a retirement age of 55 . It was also necessary for the complainant to access his pension benefits at the stated date of benefit.
The Respondent had not presided Over a blanket type policy or absolute retirement age as evidence from their discretion on compassionate grounds.
Counsel for the Respondent challenged the Complainants submissions on distress and his lack of relaunching post retirement and asked for this to be reflected in the Adjudicators considerations.
CA -00018266-002 Minimum Notice
The Respondent submitted that the employment was not terminated but concluded by agreement on reaching 65 years of age. The Act only applies to terminations and not to retirements.
Findings and Conclusions:
CA-00018266-001 Employment Equality
I have considered both parties extensive oral and written submissions in this case and I would at this stage like to commend both parties for their respective clear and focussed presentations of the facts of the case as they arose. This was a very well-presented case.
The issue for decision for me is whether the Respondent during managing an employee’s retirement discriminated against him on grounds of age in terms of Section 6 and in contravention of Section 8 of the Employment Equality Act?
In arriving at this decision, I have taken account of all submissions, the parties and my own application of case law to the facts of the case and SI No 600/2017 Code of Practice on Longer Working, December 20, 2017.
The Lisbon Treaty in 2009 introduced Article 19 for the Functioning of the European Union (TFEU). This required Member States “to take appropriate action to combat discrimination-based sex, race, religion, disability, age or sexual orientation.”
Council Directive 2000/78/EC established the “Framework Directive” which sought to establish a general framework for equal treatment in employment and occupation. Article 4 provides for a derogation from age discrimination is there is a “genuine and determining occupational requirement”. Article 6 provides for a two stage Test on whether age discrimination is justifiable, firstly, whether it is objectively and reasonably justified by a legitimate aim; and secondly, whether the means of achieving that aim are appropriate and necessary.
This was incorporated into The Equality (Miscellaneous Provisions) Act, 2015 which amended Section 34(4) of the Act to read:
It shall not constitute discrimination on the age ground to fix different ages for the retirement (voluntarily or compulsorily) of employees or any class or description of employees if (1) It is objectively and reasonably justified by a legitimate aim and (ii) the means of achieving that aim are appropriate and necessary.
Ireland does not have a National age of compulsory retirement. Any desire to move towards this by employers must be objectively justified in accordance with Employment Equality Legislation. Section 34(4) outlines that test.
The Court of Justice of the EU has addressed the topic of Age Discrimination through a large volume of cases.
Wolf V Stadt Frankfurt am Main C-229/08 (applied in Saunders, Winchman case) held that the rule restricting applications to join the fire service to those under 30 was justified.
Hornfeldt C-141/11 National Law can provide for aged 67 retirement without considering the level of the retirement pension available.
Peterson C-341/08 found that protecting patients from declining performance of dentists due to age may be a legitimate aim justifying differences in treatment on grounds of age. However, setting a maximum practising age of 68 for German Public Dentists is potentially lawful but not justifiable because German Law allowed private dentists to work on beyond 68. The age limit was justifiable on intergenerational fairness grounds.
Rosenblatt V Oellerking Gebaudereinigungsges C 45 /09, Found that Compulsory retirement age of 65 in a contract of employment, while discriminatory is justified on certain conditions
Ingeniorforeningen I Danmark acting for Ole Andersen v Region Syddanmark C -499/08 found Age Discrimination when Mr Andersen was dismissed aged 63 and denied a three-month severance on grounds of his entitlement to draw a pension.
The parties have both advanced a considerable body of case law which they submit has a relevance to their respective submission of facts. I will return to this.
Firstly, I wish to engage with an exploration of whether the Complainant has satisfied the Burden of Proof set down for cases of alleged Discrimination? This test is set down in Section 85A of the Act:
Where in any proceeding’s 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, it is for the Respondent to prove the contrary
1. The Contract of Employment
The Complainant submitted that he possessed one contract of employment which originated 10 years into his employment and while he signed receipt for a 2011 contract, he did not engage with this document. This was accepted by both parties. Counsel for the Complainant has argued that I am bound to accept the presiding contract as that of 2005 and to go one step further and discount all other efforts to formalise the working relationship through documentation.
The Respondent put forward a more global argument stating that everyone knew that aged 65 was the custom and practice retirement age, firstly incorporated in a 2007 contract of employment and relied on by most employees. They asked that I apply the “Officious Bystander Test “and find that aged 65 was in fact an implied term of the complainant’s contract of employment.
I reviewed the 2005 Contract which incorporated the title Department Manager in the Complainants case. Not withstanding the variety in Font Size of the compendium of documents, I noted that the contract revolved around:
Responsible for Staff Direction
Setting of Sales Prices, having regard for margin
Forecast Sales and Purchases
Ensuring area is tidy and no safety hazard
Customer service, credit control and stock control.
The contract was silent on a start or finish date, reference to Repair work or a retirement date. It did, however set out a comprehensive grievance procedure with named contact persons.
I appreciate that the 2007 template for Creditor Administration Contract reflected a “Retirement age from the Company is 65 years “This passed the complainant by, it appears. The Respondent demonstrated that the Complainant received a copy of a Circular dated 2011 which stated
“to complete our Health and Safety Statement all contracts need to be updated and signed. Please note no changes are being made to contracts, signing them is for admin purposes only “
The Complainant signed receipt on February 1, 2011 and this was witnessed by his Line manager. He did not act on these instructions and reaffirmed at the hearing that nothing had changed from his agreed 2005 contract. He appears not to have read this document. The Respondent did not cover any action of follow up in securing the Complainants signature post February 1, 2011.I noted that the Respondent had flagged that no changes were to be made to contracts at that juncture.
The Complainant stated that he had not thought about retirement much but believed that he had received an assurance on an open-ended tenure directly from Mr A. He explained that both families had got on well over the years and this seemed to fortify his thinking in this area. I formed the impression early in the case that the Complainant had decided that he held autonomy on his retirement date and was not bound by documentation or System of limitation in that regard. Given the forthrightness of the Respondent to the contrary, I probed this further.
The Respondent submitted that everyone in the company had a certain awareness of retirement being concurrent with aged 65. They denied that the Complainant had been given a personal assurance of an open-ended retirement date and vehemently denied that a change of mind had occurred on assurances given in that regard.
Rather inconsistently, the Respondent agreed that there were notable exceptions to the aged 65 rules. This followed the case of the extension permitted for a Clerical worker on an upwardly aligned work pattern to aged 72, albeit on compassionate grounds. It was important for the Respondent to allow for a Discretion in this regard. However, discretion must be applied in accordance with the terms of Section 34(4).
I have considered the precedent cited in EDA 1513 Earagail Eisc Teoranta and Richard Lett, where the Labour Court determined that the complainant in that case did not have actual or constructive knowledge of either handbook or of a fixed retirement age of either 65 or 66 and could not be bound by express or implied terms of contract .The Chairman held that the Respondent had not fixed a retirement age in respect of the Complainant and held that he had been dismissed because of his age .
In the instant case, I accept that neither party appeared to have had any discussion on retirement prior to Mr Bs planned retirement in 2016. From here arose the assurance allegedly given to the complainant that he could press on indefinitely. This was strongly disputed by the Respondent. The Complainant pinpointed the next conversation as August 2017, some 14 months later where he recalled being told his retirement date was imminent. The Respondent referred to this as the typical three-monthly lead in time frame for preparation for retirement.
It has been very difficult for me to ignore the sub plot of planned Outsourcing of the Repair Section of the Business. I note that this was completed by February 2018 and I have noted that the Complainant was not expected to train in a replacement as he had done when Mr B was retiring in 2016. I could not establish from the Respondent when the Outsourcing was first floated as an impending action and I have found that it goes to the root of the circumstances of this case.
I have considered the Respondents submissions on the constant overlapping of pension documentation with the age of retirement. However, I noted from the evidence adduced that the Insurers did not require sight of contracts. I also noted in the supplementary documents that Mr C was registered as a 1960 Birthday, yet he retired in 2018, short of aged 65.
I have reflected on the considerable conflict in this case. I would like to resolve this conflict in favour of the Complainant as I found his recollection of the conversation which confirmed his open-ended tenure to be precise and clear, whereas, I found the Respondent understandably more focussed on the business commercial realities and the recollections were not as precise. Neither party was able to submit any contemporaneous record of these discussions.
I accept that the Complainant was privately devastated by his perception of a hastened exit in September 2017.I also accept that he internalised most of that devastation outside a fleeting conversation on his proposed 3-day week/Acceptance of the Dumper truck .While he emphasised the less favourable treatment he experienced on age grounds compared with the Clerical Worker from the Compassionate case circumstances during the hearing , I found it a significant missed opportunity that he did not initiate a focussed conversation with his then employer on this very topic during the life time of his employment . Clear provision for this rests in the Statutory Instrument 600/2017 the Code of Practice on Longer Working. (Identifying Individual Intentions) in addition to a clearly labelled grievance procedure.
I must conclude from the evidence before me that the complainant was not on prior notice of his actual retirement date until August 2017. I have given some consideration to the variable ages of some retirees and I have reflected on some of the instances of rehiring and I have concluded that the complainant’s termination of employment was directly attributed to his age. This is a manifestation of a prime facia case of discrimination which in turn satisfies the Burden of Proof outlined in Section 85A of the Act. The Complainant has raised a presumption of discrimination for which the Respondent will now be asked to respond in accordance with Section 34(4) of the Act.
Section 34(4) It shall not constitute discrimination on the age ground to fix different ages for the retirement (voluntarily or compulsorily) of employees or any class or description of employees if (1) It is objectively and reasonably justified by a legitimate aim and (ii) the means of achieving that aim are appropriate and necessary.
The Respondent has submitted a range of reasons to support the company retirement age of 65. These ranged from Intergenerational Fairness, Health and Safety of staff and public, Preservation of an aging employees’ dignity, workforce planning and established custom and practice. They supported these submissions by reliance on Rosenblatt C-45/09 and Palacios C -411/05, among others.
It was clear to me that the Respondent had an honest belief that these legitimate aims were in the best interest of the business and the complainant himself. As stated, the parties did not engage on this topic at any stage. The Respondent was not challenged by the complainant on identifying any objective justification during his employment.
I am satisfied that the Respondent has illustrated their legitimate aim of presiding over a Retirement age of 65. I must now analyse whether this aim was objectively justified and whether the means of achieving that aim were appropriate and necessary?
The Complainant argued that there was no evidence of objective justification in this case. The Respondent disputed this and submitted extensive opinions on why Retirement best fitted the complainant by 4 October,2017.
In Transdev Light Rail ltd and Michael Chrazanowski EDA 1632, the Labour Court analysed the decision made to compulsorily retire a Tram Driver at 65. In finding for the Respondent in the case, the Court reflected on the complainant in the case proximity to a Collective agreement on Pensions, Life Assurance and Disability Scheme. While he had sought access to an extension by means of a fixed term contract, this was vetoed at a Plant level. This informed the Labour Courts view that the Complainant in the case had a prior knowledge of his retirement date.
The facts of the present case differ on the assurance which the complainant believed he received on an open tenure of employment. I have already accepted that this was given.
Transdev relied on several legitimate aims for an aged 65 retirement age which corresponded with those of the Respondents in this case. Safety critical worker, intergenerational fairness, where new workers were hired to replace retirees, Medical Opinion that capacity for Tram Driving reduced on advancing age.
In the Instant case, no medical reports were supported, no risk assessments were undertaken and the breakdown of age in the Respondent business did not detail any potential for Intergenerational unfairness when I considered the non-replacement of the complainant on his departure prior to the Outsourcing in February 2018.
Age 20 plus 1
Age 30 plus 5
Age 40 plus 13
Age 50 plus 11
Age 60 plus 5
This included the owners and Mr D.
I also noted that the replacement for Mr B, described as Sales/Repair was aged 50 during this survey. However, I was drawn to the Respondent submission when I enquired how the complainant was assessed for risk? The Respondent submitted that the Staff Handbook of 2011 was the tool by which this exercise was completed. I studied this document which was largely a customer service document and I could not illicit any form of guidance in that regard. I agree with the complainant’s submissions that the 2011 handbook was not addressed in cross examination.
I accept that the Respondent undertook a Safety Analysis to inform the Company Safety Statement in 2015. At that time, some 2.5 years before the complainant’s retirement, the workshop was graded as being in a range of 4 lows, 3 mediums and 1 High associated risk of hazard. There was no reciprocal exercise completed in the Sales area.
I note that the Complainant had not demonstrated a notable sick leave record and the Grinder incident had occurred some 5 to 6 years before the end of employment. Yet, I have reflected on the very profound submissions raised by the Respondent that they had genuine health and safety concerns on the complainant working past 65 which did not arise for the Comparator cited. The decision to extend that contract was influenced by humanity and compassion. I understand that.
In Transdev, the Court considered an extensive Occupational Health Assessment which outlined an objective and scientific medical opinion on the risks of post 65 Tram Driving. I did not have the benefit of such a document in this case outside the opinions cited by Counsel, Mr A and Mr D on this topic. I would have preferred a more in-depth analysis on this key point as I must conclude that the Complainant was not a participant in any assessment prior to his termination of employment. I am left with the conclusion that the decision was largely informed by subjective viewpoints and the commercial imminence of an outsourcing which I cannot determine were appropriate, objectively justified or necessary in accordance with Section 34(4).
In Saunders V CHC Ireland Limited DEC E 2011-142, The then Equality Officer found that a Retirement Age of 55 for Helicopter Winchmen was objectively justified based on the health and safety of people who they may rescue. The Respondent sought to identify this as an analogous case. I have a difficulty with this analysis as I appreciate that the complainant was largely a Shop based worker without the apparent autonomy, responsibility and fitness requirements of a Winchman. I found a more comparative analysis to the facts in Valerie Cox V RTE ADJ 6972 (2018)
I have concluded my investigation in this case and I have not identified that the Respondents case is saved by their submissions under Section 34(4). I have not found the Respondent in compliance with Section 34(4) and thus they have not rebutted the complainant’s submissions that he was discriminated on age grounds and discriminatorily dismissed on 4 October 2017. The Complainants complaints are well founded.
The regrettable fact in this case is , however, that the parties were not minded to sit down and tease out a less absolute alternative to automatic termination at aged 65 as I could see that the impact of the compulsory departure on the complainant was still visible , while the Respondent had clearly wished to have been afforded the chance to resolve matters and was taken aback by the case . The case has affected the Respondent also who clearly took Employer responsibility very seriously and believed that they were acting in the best interest of the company. It has been a central consideration in my reflections that the Grievance procedure remain unopened .
CA -00018266-002 Minimum Notice
I have heard the party’s submissions on this complaint. The Law is stated at Section 4 of the Act.
Minimum period of notice.
4.— (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.
(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—
( a) if the employee has been in the continuous service of his employer for less than two years, one week,
( b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,
( c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,
( d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,
( e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.
(3) The provisions of the First Schedule to this Act shall apply for the purposes of ascertaining the period of service of an employee and whether that service has been continuous.
(4) The Minister may by order vary the minimum period of notice specified in subsection (2) of this section.
(5) Any provision in a contract of employment, whether made before or after the commencement of this Act, which provides for a period of notice which is less than the period of notice specified in subsection (2) of this section, shall have effect as if that contract provided for a period of notice in accordance with this section.
(6) The Minister may by order amend or revoke an order under this section including this subsection.
The 2005 Contract provides for an agreement that the employment relationship may be terminated by 8 weeks’ notice in writing save in cases of gross misconduct or by agreement.
It was common case that the Complainant did not register a dissent in the face of his notified end of employment date in conversation with Mr A in August 2017. I must interpret that he left by way of agreement which was subsequently challenged in this case.
Both parties agreed that Mr A had notified the complainant in August that his employment would end in October 2017. I find that this satisfies the legal requirement on notice.
The Act does not specifically state that Notice must be in writing, I appreciate that the contract provides for this.
I find that the Complainant worked his last 8 weeks as a notice period and the claim is not well founded.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00018266-001 Employment Equality Act
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I have found that the Complainant experienced discrimination on the grounds of age through his discriminatory dismissal on October 4, 2017. His claims are well founded.
I have given some thought to identifying a proposed redress in this case in accordance with Section 82(1) of the Act.
1. Time has now passed. I did consider options under 82(1) (f) on re-instatement or re-engagement with or without an order for compensation. I have taken account of the parties’ submissions regarding compensation and have decided not to order a return to the workplace.
Instead, I direct the Respondent to pay the Complainant € 18,000 in compensation for the acts of discrimination. This amount is not reckonable for taxation purposes.
2. In addition, in the spirit of fortifying the preparation of the remainder of the staff for retirement/longer working.I order the Respondent to incorporate and honour the terms of Standards Requirement Arrangements, SI 600/2017, (Code of Practice on Longer Working), into the Staff Handbook within three months of this decision.
CA -00018266-002 Minimum Notice
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 11 of the Minimum Notice and Terms of Employment Act, 1973 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under that Act.
I have found this complaint to be not well founded.
Dated: 30th May 2019
Workplace Relations Commission Adjudication Officer:
Claim for Discriminatory Dismissal, Minimum Notice.