ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00018823
Complaint 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: 09/05/2019
Workplace Relations Commission Adjudication Officer: Kevin Baneham
On the 17th December 2018, the complainant referred a complaint pursuant to the Employment Equality Act. The complaint was scheduled for adjudication on the 9th May 2019. The complainant attended the adjudication. The respondent was represented by IBEC and four witnesses attended on its behalf.
In accordance with section 79 of the Employment Equality Acts, 1998 - 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The complainant worked for the respondent on a two-year fixed term contract and was paid €39,000 per year. The complainant turned 65 and then 66 during the period of the contract; his birthday is the 23rd April. His employment ended on the 20th June 2018, at the expiry of the fixed term. The respondent did not renew the fixed term contract, nor did it accept his application for the advertised role. The complainant asserts that this amounted to age discrimination. The respondent denies the claim of discrimination and states that it has a retirement age of 66 applicable to all staff.
Summary of Complainant’s Case:
The complainant outlined that he was recruited by the respondent in 2016 to work on a new project involving family mediation to prevent young people entering homelessness. The complainant said that prior to this he worked for a Government Department and previously in the Defence Forces. The complainant outlined that he had always wanted to work with young people who were on the margins. He was, therefore, delighted to get the role in 2016 and signed a two-year fixed term contract.
The complainant received a phone call from HR who mentioned that he would turn 65 during the contract and he would have to retire at this point. The complainant replied that he needed time to build up the project. He was informed the following day that he could work through to the end of the full two-year contract, i.e. beyond his 65th birthday.
The complainant said that the project was for five years and its funding from a named philanthropy group was dependent on achieving outcomes. The complainant outlined that the project involved a form of mediation that had never been tried before in Ireland. In January 2018, the respondent published its second-year report on the project. This concluded that target for the year has been exceeded and ‘the mediation service has proven itself to be an effective process which is delivering effective change in the lives of young people and families referred to it.’ He and his colleagues on the project worked with 25 families, who were almost all able to stay in the family home. The complainant said that he also gave briefings on behalf of the respondent to groups. He also liaised with the public body on several occasions. The complainant said that he worked late evenings and weekends. The complainant outlined that it took 30 or 40 hours to mediate with each young person because of dysfunctionality.
It was decided that a second mediator would be appointed, and the complainant agreed to mentor whoever was appointed. When the respondent could not initially find someone for the role, the complainant suggested a colleague who he thought would be suitable. This person was interviewed and then appointed to the role. The complainant mentored this person following her appointment in or around February 2018 and she also completed a training course.
In February 2018, the respondent emailed all staff to say that the retirement age had been raised to 66. The complainant received a phone call that day to acknowledge he would turn 66 on the 23rd April 2018.
The complainant referred to his email of the 20th February 2018, when he cited section 34 of the Employment Equality Act. While the complainant knew his contract would end in June 2018, there was the possibility of new funding. He said that the project was now funded by the respondent themselves. The complainant also referred to his formal request of the 21st March 2018.
The complainant outlined that his role was then advertised internally, and he applied for the role on the 11th April 2018. His was the only application. He then received word back that his application was not processed, as set out in the email on the 4th May 2018.
The complainant said that he applied again as an external candidate and was told by the respondent that he would not be considered because of his age. The complainant outlined that the respondent initially found no suitable person for the role, which meant that he was sitting there, qualified and not able to apply for it.
The complainant said that he sought to meet the HR Director but only received emails that the position had since been re-advertised and filled. The complainant commented that he had since been asked to mentor the two mediators on a voluntary basis and that they had met on four occasions. The complainant said that his last day in work was the 20th June 2018, referring to the email of the 20th June.
The complainant outlined that in September 2018, the public body invited him to consult in a paid role for 20 to 40 hours per week. This role was to examine case load including the most complex cases. He outlined that there may be many agencies intervening with a family so there was a need for creative community alternatives to allow State bodies work together in their interventions. He said that they discovered that agencies worked in isolation. He said that, when seeking this role, no one has asked him about his age, but they did ask him about his knowledge.
The complainant outlined that, on taking the role with the respondent, he left a permanent job with a retirement age of 70. He commented that age should have been a positive and not a negative. The complainant said that he felt humiliated and hurt, in particular as this was a role he had dreamt about. He was not able to meet HR face to face.
The complainant submitted that this was a flagrant breach of the Employment Equality Act and the respondent had not advanced any objective justification for the ending of his employment. He had been already employed beyond age 65 and 66. He submitted that it was no defence to say that it was a fixed term contract. He submitted that the amendment to section 34 imposes the same obligation for objective justification to fixed term contracts. He agreed that his contract would end at the expiry of the fixed term, but not considering him for the role was an act of discrimination.
Summary of Respondent’s Case:
In submissions, the respondent rejected the complaint of discrimination in relation to access to employment. The respondent submitted that the complainant had been employed between the 21st June 2016 and the 20th June 2018, when the two-year contract ended. The complainant reached the retirement age of 66 in April 2018 and the respondent allowed for the contract to run until its expiry in June 2018.
On the 21st February 2018, the respondent wrote to the complainant and all other staff to say that the retirement age was to increase to 66. The complainant asked for an extension and this was declined by the respondent. The respondent outlined that it would not consider his application for the advertised Mediation Worker role. The respondent outlined that it became aware of the complainant’s age during the Garda vetting process for the initial application.
The respondent submitted that the complainant was engaged on a two-year contract and could have no expectation of working beyond the term of the contract. This was why there was no age of retirement stated in his contract of employment. His employment ended at the end of the fixed-term and not because of his age.
In a reply of the 4th May 2018, the HR director outlines that the respondent has honoured the contract of employment. It acknowledges that complainant’s application for the role, but that he would not be called for interview as ‘you have reached the retirement age at this juncture.’ The email wishes the complainant the best in the future.
The complainant emailed to say that he would apply for the advertised role, so this was not a dispute about the ending of his employment. The respondent did not consider the complainant’s subsequent application as he was then above the retirement age.
The respondent relied on the CJEU decision in Fuchs & Kohler v Land Hessen (C-159 and 160/2010) regarding employment continuing beyond a retirement age. It submitted that permitting the complainant to work beyond the retirement age did not undermine the retirement age. This was also provided for by the Employment Equality Act.
The respondent stated that the fact of the complainant having ongoing cases cannot oblige it to retain him. The respondent outlined that the complainant was facilitated in being allowed to work beyond the retirement age and by the respondent extending the retirement age to 66. The respondent relies on Rosenbladt v Oellerking Gebaudereigungses (C-45/09) regarding the legitimacy of a retirement age. The respondent relied on the CJEU jurisprudence regarding an employee’s entitlement to a pension, for example Georgiev v Tehnicheski universitet Sofia (C-250/09 and C-268/09). The respondent submitted that the complainant was entitled to a retirement pension and it had also extended its retirement age to take account of the State pension age.
The respondent submitted that a legitimate aim was preventing future disputes regarding an employee’s fitness and to protect the dignity of employees. It outlined that it maintains a retirement age of 66, which is applied to all staff. The complainant’s employment terminated at the end of the fixed-term contract. His subsequent application was not considered as he was then above the retirement age.
At the hearing, the respondent submitted that there was no discrimination in this case. The complainant’s two-year fixed term contract came to an end and his application was not processed because he was then above the retirement age of 66. The respondent said that this was justified by the complainant’s entitlement to pension. It also referred to protecting the dignity of workers. It submitted that manpower planning allows the employer to anticipate people retiring, i.e. to train people in advance of pending retirements. It said that it would take account of future increases in the pension age.
The respondent outlined that it advertised for the 2018 role both internally and externally at the same time and recruited someone externally. It did not accept that the complainant was asked to mentor the other mediators. The respondent submitted that it had the same retirement age for all employees and so there can be no discrimination.
Findings and Conclusions:
The complainant’s employment ended on the 20th June 2018, at the expiry of a two-year fixed term contract. By this date, the complainant was 66, having reached this milestone on the 23rd April 2018. In his email of the 21st March 2018, the complainant formally requested that he work beyond the retirement age of 66, in particular that he work a new fixed-term period, not exceeding 24 months. After the end of his employment, he applied for his former role, but the respondent did not consider his application because he had reached the age of retirement.
The complainant’s role involved mediation with young people and their families, in order to prevent homelessness. The documentation indicates that the initiative was a success and a new way of addressing such difficulties. There was some dispute whether the complainant informally mentored his former colleague and the person who succeeded him. It is enough to say that by all accounts the complainant was a success in the role.
The email of the 20th June 2018 from the Services Manager marks the complainant’s departure from the respondent. It describes the respondent as being ‘lucky’ to have recruited the complainant at the outset of the project. The Services Manager states ‘I feel very honoured to have worked closely with [the complainant] and to have witnessed the amazing work he has done, often in challenging circumstances. His wisdom, empathy and unwavering belief in the power of dialogue to help people overcome their problems has been remarkable and I know he has changed the lives of a great many young people and their families for the better.’
Legal background – EU Directive
The Employment Equality Act transposed Directive 2000/78, which, via Article 2(2), prohibits discrimination on four grounds (including age). The Directive, however, permits direct discrimination on the age ground, where justified. Addressing the justification of differences of treatment on grounds of age, article 6(1) 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.”
As set out by Professor Colm O’Cinneide in his article ‘Age Discrimination in EU law’ “the requirement that age distinctions be ‘appropriate’ in the sense of being rationally linked to the achievement of the relevant legitimate aims, and the requirement that they be ‘necessary’, i.e. that they are suitably tailored and do not impose a disproportionate penalty on the disadvantaged age group.”
Employment Equality Act – age discrimination
Section 6 of the Employment Equality Act provides that discrimination shall be taken to occur where a person is treated less favourably than another person on one of the discriminatory grounds which ‘exists, existed but no longer exists, may exist in the future, or is imputed to the person concerned.’ Section 6(2) sets out the age discriminatory ground as ‘between any 2 persons … that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”)’.
Employment Equality Act – providing a fixed term contract
Section 6(3)(c) of the Employment Equality Act provides that offering a person over the retirement age a fixed term contract shall not constitute age discrimination if
“(i) it is objectively and reasonably justified by a legitimate aim, and
(ii) the means of achieving that aim are appropriate and necessary.”
Employment Equality Act – prohibition on discrimination
Section 8(1) of the Employment Equality Act provides the general prohibition of discrimination in relation to conditions of employment. Section 8(6) provides:
“Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—
(a) the same terms of employment (other than remuneration and pension rights),
(b) the same working conditions, and
(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,
as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.”
Employment Equality Act – retirement age
Section 34 of the Employment Equality Act provides for savings and exceptions. The provisions relevant to age discrimination are contained in subsections (4) and (5). Section 34(4) addresses retirement age:
“(4) Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees if — (a) it is objectively and reasonably justified by a legitimate aim, and (b) the means of achieving that aim are appropriate and necessary.”
Employment Equality Act – maximum age for recruitment
Section 34(5) permits an employer to fix a maximum age for recruitment, taking account the training required for the role as well as the time before the recruit reaches retirement age. The provision reads:
“(5) Without prejudice to the generality of subsection (3), it shall not constitute discrimination on the age ground to set, in relation to any job, a maximum age for recruitment which takes account of— (a) any cost or period of time involved in training a recruit to a standard at which the recruit will be effective in that job, and (b) the need for there to be a reasonable period of time prior to retirement age during which the recruit will be effective in that job.”
Code of Practice on Longer Working
The complainant referred to the Code of Practice on Longer Working (SI 600/2017). This provides “Retirement ages in the private sector are generally set out by means of: (a) an express term in the employee’s contract of employment; (b) an implied term in the employee’s contract of employment; (c) relevant policies, for example a staff handbook; and (d) custom and practice generally arising from the pension date set out in the relevant occupational pension scheme.” While the Code of Practice was issued per the Industrial Relations Act, it addresses ‘objective justification’. It states:
“Essentially the law is now that compulsory retirement ages set by employers must be capable of objective justification both by the existence of a legitimate aim and evidence that the means of achieving that aim is appropriate and necessary. Examples of what constitutes a legitimate aim by an employer may include: • Intergenerational fairness (allowing younger workers to progress); • Motivation and dynamism through the increased prospect of promotion; • Health and Safety (generally in more safety critical occupations); • Creation of a balanced age structure in the workforce; • Personal and professional dignity (avoiding capability issues with older employees); or • Succession planning.”
The Code of Practice asks questions for employer and employee to consider:
“For the Employee • Is the employee confident that he/she can continue to perform the role to the required standard? • Can flexible working options or alternative roles be considered? • What is the duration of the extension being sought? • Are there any pension implications? • Are there contract of employment implications? For the Employer • Are there good grounds on which to accept or refuse the request e.g. can the retirement be justified on a legitimate and objective basis? It is important to note that the Equality (Miscellaneous Provisions) Act 2015 requires that a fixed-term contract post-retirement age must be objectively justified. • What are the objective criteria applicable to the request? This should form the basis of any assessment of a request to work beyond retirement age to ensure an equal and consistent approach to addressing this and other future requests. • How would the arrangements for the employee remaining on in the workforce be contractually framed (e.g. fixed term contract)? • Could granting the request be on the basis of a more flexible working arrangement (e.g. less than full hours or an alternative role)?”
The Code of Practice suggests a procedure for employer and employee to follow in handling requests to work longer:
“In dealing with a request to work longer it is recommended that the parties engage as follows: 1. The employee should make such a request in writing no less than three months from the intended retirement date to be followed up with a meeting between the employer and employee. This meeting gives both the employee an opportunity to advance the case and allowing the employer to consider it. It is important that the employee is listened to and that any decision made is on fair and objective grounds. 2. The employer’s decision should be communicated to the employee as early as practical following the meeting. 3. Should the decision be to offer a fixed-term contract post-retirement age, the period should be specified, setting out the timeframe, and the legal grounds underpinning the new contract should be made clear (i.e. fixed-term contract). It is good practice to include a reference that the decision is made solely having regard to the case being made by the employee and does not apply universally. 4. Where the decision is to refuse the request, the grounds for the decision should be set out and communicated in a meeting with the employee. This will help the employee to understand why the request has not been granted, and give the employee confidence that his/her case has been given serious consideration and that there are good grounds for refusing the request. The applicant should have recourse to an appeals mechanism, for example through the normal established grievance procedures in the organisation. 5. An employee may be accompanied to a meeting by a work colleague or union representative to discuss a request to the employer to facilitate working longer and in any appeals process around same.”
Guidelines on retirement and fixed term contracts
The Irish Human Rights and Equality Commission has produced guidelines on “Retirement and Fixed-Term Contracts” (April 2018). The guidelines refer to section 6(3)(c) as an “exemption” and state that it should be strictly construed. They provide that the exemption only applies to the offer of a fixed term contract and not to a contract of indefinite duration. They also state that the exemption only applies to the offer of a fixed term rather than to the terms of the fixed term contract itself. The guidelines state “Where the fixed term contract contains a term that gives rise to discrimination on the grounds of age, or any other protected ground, employers will not be in a position to avail of this exemption.”
Application to this case
The first issue to consider is whether the complainant’s employment was subject to a retirement age. While the contract of employment signed by the complainant does not refer to a retirement age, I find as fact that it was age 66. In reaching this finding, I note the email of the 19th February 2018 that informs employees generally that the retirement age would increase to 66. I note the case law that a retirement age can also be established through custom and practice or documents other than the contract of employment (see Earagail Eisc Teoranta v Lett EDA 1513). I conclude that the retirement age fixed by the respondent was 66.
The complainant’s two-year fixed term contract ended on the 20th June 2018. He proposed to the respondent that he be given a further two-year contract. The project he was working on continued and it had been envisaged that it would run for five years.
It transpired that during the initial Garda vetting process, the respondent became aware that the complainant was then approaching the then-retirement age of 65. Just as in ADJ-00011207, the Garda vetting form requires the employee’s date of birth. This filling of a form was the first occasion that the employer became aware of the employee’s age. An employer might then be concerned about setting a precedent regarding employing someone above a retirement age.
After being informed that he would not be offered a second fixed-term contract, the complainant applied for the role advertised by the respondent, in effect his role. The respondent did not consider the complainant’s application, while acknowledging his disappointment. The respondent later employed a younger person to replace the complainant.
The Directive and the Employment Equality Act permit differential treatment of employees according to their age, so long as it is “objectively and reasonably justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”. The Code of Practice and other instruments were enacted to help employers and employees tackle the issue of longer working.
In this case, having reviewed the evidence and submissions, I find that the aims relied on by the respondent, for example relating to fitness and dignity, were legitimate. I, however, find that the means used to achieve these aims were not appropriate or necessary. It was not necessary to use the blunt indicia of age when fitness could have been readily assessed in other ways. The project, for example, was evaluated, and the line manager gave the complainant a glowing reference. This was also not a proxy for future fitness concerns or dignity. The complainant’s proposal was for a further two-year contract, i.e. not an extended or indefinite period.
What the legislative provisions and the case law require is that the employer examine the actual circumstances of the employee’s position to ascertain ‘appropriate’ and ‘necessary’. In this case, the respondent only cited the complainant’s age, rather than the particular circumstances. While he had reached the revised retirement age, the complainant advanced a strong case to continue for a further two years or for some other fixed term. He had successfully rolled out the first two years of the project. He helped expand the team of mediators and assisted in this colleague’s professional development. This role involved mediation with young people and their families in dysfunctional situations; it would appear that a mix of ages was appropriate in addressing these challenges. This possibility was not considered by the respondent; it only looked at the complainant’s age and this was disproportionate and, therefore, beyond what was necessary.
It follows from the above that the complaint pursuant to the Employment Equality Act succeeds. The respondent discriminated against the complainant because of his age in not allowing him to continue beyond the 20th June 2018. In assessing redress, I note that this must be “effective, dissuasive and proportionate”. I note that the complainant had forged a successful new career in family mediation; this was curtailed by age discrimination. To his credit, the complainant has explored other opportunities. I note that the respondent is engaged in crisis intervention across many areas and is an approved housing body and a charity. I note that the complainant is in receipt of a pension earned by his service with the Defence Forces.
Taking these factors into account, in particular that the complainant’s role with the respondent ended through unlawful and less favourable treatment because of the complainant’s age, I award redress of €22,000.
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.
In accordance with my powers under section 82 of the Employment Equality Acts, I hereby order that the respondent pay the complainant €22,000 by way of compensation for the breach of the Act. The award is redress for the infringement of the complainant’s statutory rights and therefore not subject to the PAYE/PRSI/USC code.
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Employment Equality Act / age discrimination
Objective justification / appropriate and necessary