Correction Order ADJ-000 21965
I completed this Decision for the parties and published the names . On receipt of the decision , the complainant made a further request for anonymisation of the decision . I canvassed the respondent view on this and they confirmed that they would not object to this .
On further consideration , I have agreed to accede to the complainants request and I have anonymised the decision below .
I have done this to respect the sensitivities of certain aspects of the case pertaining to the complainant . The text of the decision is unaltered .
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00021965
A Civil servant
A Government Department
Appeared in Person
Cathy Maguire BL instructed by Chief State Solicitor's Office
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: 16/12/2019
Workplace Relations Commission Adjudication Officer: Patsy Doyle
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following 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.
This case concerns a claim for discrimination on age grounds on behalf of the Complainant, a Higher Civil Servant who appeared as a Lay Litigant and the Respondent, the Minister for Employment Affairs and Social Protection represented by Cathy Maguire. BL instructed by the Chief States Solicitors Office.
Both parties made written and oral submissions.
On November 21, 2019, I wrote to the complainant seeking a detailed account of the engagement between the parties surrounding the circumstances of this claim. I also requested copies of any exchange of documents.
At my request, the complainant followed through with a copy of his letter dated 12 April 2019, where he sought to extend his tenure with the respondent.
Summary of Complainant’s Case:
The complainant worked at a Higher Civil Servant level engaged in Community Employment from 6 February 1986 until his compulsory retirement on 2 December 2018 at age 65. He availed of a one-year extension via the terms of circular 21/2017 and engaged in his identical job, to the point where he took on extra work before the contract concluded on his 66th birthday. He had a successful career and very positive memories of his working life.
On 27 May 2019, the complainant submitted a complaint to the Workplace Relations Commission that he had been discriminated on age grounds. He submitted that the most recent date of discrimination was 26 March 2019, a date which coincided with the publication of a Ministerial Report pursuant to section 3(a) of the Public Services Superannuation (Miscellaneous Provisions) Act, 2004
The Complainant submitted that the delayed enactment of the Public Services Superannuation (Age of Retirement) Act, 2018 on 26 December 2018, 24 days post his 65th birthday on 2 December 2018 amounted to direct discrimination on age grounds.
The complainant outlined that he had elected to extend his tenure by means of a one-year interim contract post age 65 in accordance with circular 21/17. This was accompanied by a firm expectation that he would continue to age 70 once the then Superannuation Bill was enacted. He kept a close eye on the progress of the Bill during 2018.
The complainant contacted Human Resources during September 2018 and elected to avail of the provisions of Circular 21/2017. He understood that once the Bill had passed to Legislation then the provisions of the Act would overtake the terms of Circular 21/2017.
This one-year contract expired on 2 December 2019, on the complainants’66th birthday as the time lag to 26 December 2018 commencement date for the enabling Legislation ruled out any further participation in the workforce for the complainant.
The Complainant told the hearing that he had made political representations on the topic of continue service to 70 and had high hopes that a clause inserted by the Opposition party would resolve the matter as the Government was requiring to report on the topic by March 2019. This constituted a “ray of hope “as the Legislation could have been amended to encompass serving Civil servants whose 65th birthday fell shortly before commencement date of the superannuation act on 26 December 2018.
The complainant submitted that he had held a firm expectation that he would be permitted to stay on until his 70th birthday. The Superannuation Act did permit a continuation in employment to age 70, however, due to his 66th birthday preceding the commencement of the Legislation, the complainant had no choice but to retire. This caused him to feel excluded, disillusioned and discriminated against. He contended that he had been denied a further 4 years of superannuation, promotional opportunities and access to long term increments. He had realised a superannuation service of 33 years at the time of his retirement and he believed that he had a lot more to offer the service.
The complainant had not been replaced in his position and he cited details of a Case Officer who was permitted to remain in post as he had a 66th birthday on 28 December 2018.
The complainant submitted that he had been further aggrieved at the Respondent suggestion at hearing that he was welcome to apply for other jobs in the Civil service.
The Complainant raised the issue with the respondent on 12 April 2019 and in the absence of a satisfactory response, referred his claim to the WRC on 27 May 2019.
The Complainant sought the redress options of re-instatement and compensation.
On 6 August 2019, the Complainant filed a further written submission which can be summarised as:
1. He contends that his participation in the terms of Circular 17/2017 (A Temporary Circular to allow certain Civil Servants to be retained beyond their Compulsory Retirement Age of 65 years until they reach the age of eligibility for the CSP (Contributory State Pension) was contingent on extending this tenure to age 70. He submits that” gross legislative processing efficiencies negligently delayed the bill enactment and debarred me from working to 70 years of age …”
2. He submits that he signed agreement to the operation of Circular 17/2017 under duress.
3. The Complainant submitted that no account was giving to the civil servants who were to reach their birthdays December 2017 and December 2018 who wished to work to age 70
4. The Complainant contended that he was forced to accept the interim arrangement of Circular17/2017 which was discriminatory
5. The Circular was badly flawed in concept, draft and issue and flew in the face of Equality Legislation
6. The Superannuation Act followed suit in concept, draft and issue.
7. The Minister was required to make a report pursuant to section 3(a)(6) of the Public Services Superannuation (Miscellaneous Provisions) Act, 2004 and as read to the Dail on 26 March 2017. This gave life to the expectation that consideration could be given to those currently in posts.
The Complainant broadened the complaint as encompassing other civil servants who signed the interim contract, in good faith and with the expectation of having the opportunity to continue service to 70 years old.
The complainant submitted a projected loss of earnings as consequence of his curtailment of employment at age 66 at €359,400. Gross.
Following my request dated 21 November 2019, the complainant submitted a copy of an email he received at 14.46 hrs from the Ministers Office, Finance and Public Service Reform (DPER) in resp0onse to the complainant’s letter dated May 13, 2019.
This letter reflected that the Minister was not proposing to make changes for the cohort of rehired post retirement civil servants
“the interim arrangements clearly conveyed to all concerned, permitted those individuals to be rehired post retirement for a period of one year until they reached the age of eligibility for the state Pension (contributory). In the civil service, this arrangement was provided by DPER Circular 21 of 2017, which specifically stated that retention under the circular was for a period of 1 year only and that it did not confer any rights to any new arrangement that may be provided for in the future legislation in relation to compulsory retirement age. Those availing of the terms of the Circular were required to sign an undertaking to confirm their understanding of these points.”
During cross examination, the complainant confirmed that he had previously worked as an Instructor and had commenced as a Manager in 2002 and transferred to the Civil service in 2012. He was aware of the compulsory age of retirement as 65. This followed an earlier option to retire at 60. He thought it may have been inserted in his contract which was not in his possession. He was aware that entrants post 2004 were not fixed with a retirement age.
His PRSI category was B for Civil service. He was struck by the Career Averaging aspect which applied to some pensions. This had not applied in his case.
Counsel disputed any delay in publication of the Superannuation Bill and allowing for a 2-month recess, the passage of the bill to law was not unduly delayed. The Complainant disagreed and submitted that he had held an expectation that the Bill would be passed into Legislation by September 2018, well in advance of his 65th birthday on 2 December 2018. He had his fingers crossed that this would happen for him. He agreed that Human Resources had not given him hope on this unfolding.
In addressing his disappointment of not benefitting from an extension in tenure, the complainant submitted that the Interim one-year contract had only been “1/5 of what he wanted, and the cards had not fallen the right way for him “
Counsel went on to address the complainant on projections around the placing of Group C, those serving but not comprehended by the terms of the Act. She said that a resultant change, if it had been sanctioned, in Primary Legislation would have taken time and the complainant’s interim contract may not have saved him on this. The complainant submitted that this interim contract would have been extended to accommodate such an amendment.
This interim contract did not accrue pension and his financial loss had been severe. His annual pension amounted to a gross sum of €35,000. He was doubly disappointed when the much-anticipated Ministerial Report of March 2019 did not resolve the matter.
The Complainant clarified that the duress he attributed to the circumstances surrounding the Interim Contract was self-induced duress. He was troubled by the absence of a plan to replace him and he contended that his job was still there. A colleague in Waterford with longer service was permitted to remain as his 65-birthday post-dated the legislation by either 2 or 3 days.
The complainant concluded by re-affirming his earlier submissions.
Summary of Respondent’s Case:
The Respondent operates a Government department. The Complainant had transferred from another statutory body on 1 January 2012 and had carried service for pension purposes from 1986.
The Respondent disputed the claim of discrimination on age grounds and outlined that the complainant had retired on reaching his retirement age of 65 on 2 December 2018. He received a lump sum and pension, subject to abatement rules. He was retained in the Civil Service until age 66 pursuant to Circular 21/2017 to facilitate tenure to coincide with the statutory age of 66 where Contributory State Pension became available on 2 December 2019.
The Respondent chronicled the progression of Public Sector superannuation through to the Public Service Superannuation (Age of Retirement) Act, 2018, which was signed into law and commenced on 26 December 2018. This conveyed an option for those falling within the scope of the Act to elect to continue to work to an upper limit of age 70. Counsel denied that there had been a culpable delay in the enacting the Legislation.
The Complainant was bound to retire at aged 65 in accordance with section 8(1) of the Civil Service Regulation Act 1956.He held a minimum retirement age of 60.
Counsel clarified that the Act excludes from its scope a person who, before the coming into operation of section 3 of the 2018 Act, retired from the public service body upon or after attaining the age of 65.
Counsel expanded on the Minister for Public Expenditures requirement to report to the Oireachtas on 26 March 2019.
“those who retired on reaching the age of 65 between 6 December 2017 the commencement of the act and on potential remedies to asset this cohort of worker. “
The report traversed the period 5 December 2017- 26 December 2018.
Counsel submitted that the complainant had not established a prima facie case of discrimination and requested that the claim be dismissed.
The 2018 Act became law after the complainant’s date of retirement and he does not fall within its scope.
Counsel disputed the competence of the WRC to determine an allegation “that gross legislative processing inefficiencies negligently delayed the enactment of 2018 Act “as while the allegation is denied, it does not amount to age discrimination.
The March 2019 report was directed at the cohort of workers who retired between the date of the Government decision leading to the 2018 Act and the date of passing of that Act and did not constitute discriminatory treatment on age grounds.
Counsel argued that the complainant was mistaken in his belief that the Interim contract would lead him to cease working at age 70 and he was not given an expectation that this outcome would result from the 2018 Act. The Complainant had recorded his agreement to the limitations of the Interim contract.
Counsel also relied in the terms of Section 34 of the Employment Equality Act, 1998 - where the State holds a broad discretion to set different retirement dates , change the age of retirement for a given cohort of workers and change the retirement age for a given cohort of workers prospectively from the date of introduction of the change and where the measures in question are justified by a legitimate aim and are appropriate and necessary to achieve that aim .
On 5 December 2017, the Government decided that the compulsory retirement age would be increased to 70 for public service employees recruited before April 1, 2004 and Legislation was to be drafted accordingly. Interim arrangements for current servers resulted in an opportunity for continuance until the age where the state contributory pension was paid.
This resulted in retirement at 65, payment of lump sum of pension, pension paid subject to abatement and the employee is retained as an unestablished civil servant, where pension is neither accrued or payable. Salary is then paid at a minimum point of scale.
The Circular is underpinned by the following Undertaking:
“I accept the terms and conditions of retention as set out in the Circular. I understand that retention under this Circular does not confer any rights on me to any new arrangements that may be provide for in future legislation in relation to compulsory retirement age, whether I am still retained under the terms of this Circular on the date of commencement of that legislation. I understand that retention is for a maximum of one year from the date of my 65th birthday until I reach 66(current age for CSP) I also understand that retention under the terms of this Circular is at the minimum point of the relevant pay scale and that pension abatement rules will apply “
The entirety of the Public Service Superannuation (Age of Retirement) Act, 2018 was signed into law and commenced on 26 December 2018.
Retirement age for “relevant public servant “was outlined in Section 3A and provided that:
A relevant public servant shall retire from being a public servant at the latest upon attaining the age of 70 years or, where a higher age is prescribed by order under subsection (2) upon attaining that higher age
Provided in section 2, the complainant was not comprehended by this definition as he had retired aged 65 years.
The Act required a report to be laid before the Dail within three-month sofa commencement of the legislation for the public servants forced to retire between December 2017 and the commencement of the Act.
The report explained the relevant circumstances affecting this cohort and specifically identified barriers to remedies for the group.
· Primary Legislation would be required to cater for them and this would be challenging and complex.
· Any change in pay regime for rehired retirees would compromise the public service wide policy of reengaging this group at the minimum point of the scale
· Pension had been activated
· Single Pension Scheme would prevail, and the cohort had not been pensioning participants since retirement
· Workforce planning would be compromised as some had been replaced and succession planning was in train.
Counsel outlined that the complainant had written to the respondents Personnel Office on 6 September 2018. He had outlined his preferred options for continuity of service after 2 December 2018. He pointed to the projected 7-year shortfall in a full pension.
He submitted that the Superannuation bill was anticipated to become law by October/November 2018 and he wished to continue in service. He asked to explore a contingency in the event of an absence of enactment before 2 December 2018. He declared that he did not wish to avail of the option to work to 66 and sought advice.
The Respondent expressed a desire for enactment by the stated date, but qualified that continuance was not possible outside the terms of Circular 21/2017.
On September 10, 2018, the complainant confirmed the likelihood of his availing of the Circular. The Respondent confirmed that once the Law was commenced before an employee’s 65th birthday, he/she was expected to be comprehended by the provisions.
The Complainant applied for the terms of Circular 21/2017 on October 2, 2018 and signed the undertaking outlined above. On 26 October 2018, the respondent confirmed acceptance of the application and made plans for implementation.
The complainant retired on 2 December 2018 on his 65th birthday and Circular 21/2017 was activated in his case by payment of lump sum on 3 December and fortnightly pension abated by salary.
The Superannuation Act was signed by the President on 26 December 2018 and the complainant did not fulfil the title of “relevant public servant “and was not a beneficiary.
Counsel drew on Article 6 of Directive 2000/78 where differences of treatment on grounds of age may be justified. Recital 14 of which is without prejudice to national provisions on retirement age laid down.
She went on to draw from the provisions of Section 6 of the Employment Equality Act 1998
S. 6(c) Offering a fixed term contract to a person over the compulsory retirement age for that employment or to a class or description of employees in that employment shall not be taken as constituting discrimination on age ground if, objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary
Counsel for the Respondent addressed the content of the complainant’s submission on discrimination and submitted that the allegation of less favourable treatment derives from the date of passing of the Act rather than age
C -154/18 Horgan and Keegan v Minister for Education and Skills and Arnos, where the CJEU grappled with whether the pay differential for teachers recruited after January 1, 2011 constituted less favourable treatment on age grounds?
“…. Thus, the only relevant criterion for the purposes of applying new rules on the salary scale and classification on that scale is whether the person concerned is a new entrant to the public service as of 1 January 201212, regardless of the age of the public servant at the date at which he or she was recruited. Accordingly, that criterion, which renders the application of the new rules exclusively on the date of recruitment as an objective and neutral factor, is manifestly unconnected to any considering of the age of the person recruited”
Counsel concluded that the supervening event in the case was the commencement of the Act on 26 December 2018. Had the law been passed earlier, the complainant would have been permitted to work to the age of 70.
The question of the purported delay in the passing and commencement of the Act was then addressed. Counsel argued that the WRC lacked jurisdiction to address an allegation of a delay in passing national law. In referring to the case of C-378/17 Minister for Justice and Equality v WRC, Raymond Boyleand OR’s. 4 December 2018, Counsel accepted that it is open to the WRC to consider whether provisions contained in national law (maximum age for garda recruit) are compatible with the requirements of EU law and whether the provision of national law should be disapplied.
The Respondent submitted that the Bill was drafted and passed all stages of the process to reach enactment and commencement within a 12-month period. Delay was denied as was discrimination. It was not possible for the Minister to determine the length of time for a Bill to pass through the Oireachtas to become law. Separation of powers demands that the Oireachtas has the sole and exclusive power to make laws. The Minister in the instant case did not have ultimate responsibility in the management of this matter.
The respondent submitted that the complainant was always aware of the provisions of the enabling circular of 21/2017 and that it set him apart from the 2018 Act. It could not follow that he carried an expectation above the terms of his acceptance of the provisions of circular 21/2017. He was fully aware that Circular 21/2017 was incompatible with the 2018 Act. The Circular was aimed at a mitigation prefacing accessing CSP at 66 years.
The subsequent report which emerged in March 2019 was an analysis of factors affecting a cohort of workers December 2017-December 2018. The report did not change anything as only Primary Legislation could anchor this and the report did not amount to less favourable treatment on age grounds for the complainant.
The respondent denied placing any pressure on the complainant to avail of Circular 21/2017. This was a Circular introduced as a voluntary process and while introduced with a primary aim of enabling civil savants to bridge the gap, between retirement and date of CSP, it was extended to civil servants such as the complainant notwithstanding that CSP did not form part of his pension.
The respondent submitted that interim arrangements were comprehended by Section 6(3) of the Act. The state holds a broad discretion to set different retirement dates for different cohort of workers.
Palacios de la V ill v Corefiel Servicios SA C 411/05, where CJEU decided that the automatic termination of a worker under Spanish law at 65 was justified under Article 6 as it pursued a legitimate aim, intergenerational fairness and regulation of the national labour market. The court had regard also financial compensation in the form of a retirement pension and that collective agreements provided a certain amount of flexibility.
Counsel submitted that the above case demonstrates that a Member state is permitted to later retirement age in the face of changing circumstances and the fact of alteration does not undermine the retirement age in question.
In referring to C-501/12 Thomas Specht v Land Berlin, where German Civil servants had a pay system based solely on age replaced by a system determined by experience/seniority, resulting in lower pay for some civil servants linked to age.
The Court held that the protection of acquired rights, advocated by the Unions of the category of persons constituted an overriding reason in the public interest. The scheme made it possible to prevent loss of remuneration and was a crucial factor in enabling the legislature to arrange the transition from the old to the new system and the Legislature had not exceeded the limits of its discretion by taking the view that these alternatives were neither realistic or desirable.
This demonstrates that a Member state may make changes and transfer to an old system to a new system and that less favourable treatment on age grounds may be justified.
Counsel went on to address the parameters of the Ministers Report from March 2019 and argued that both workforce planning and the exclusion of the interim employees, not beneficiaries of the superannuation Act were necessitated by the requirement to observe existing law prior to the amendment of that law and the requirement to comply with the democratic process in amending that law. Circular 21/2017 was introduced to mitigate the adverse consequences. It was not possible to incorporate the cohort of interim employees.
The Government decision has both a force and power and a” cut off” point was required to be identified. There was no retrospective recognition.
Counsel argued that the complainant and others falling outside the provisions of 2018 Act had access to a Pension in addition to flexibility in Circular 21/2017 should be taken in consideration in any analysis of justification. His employment had changed post retirement to that of unestablished Civil Servant.
In referring to the Labour Court case of Louth County Council and Mary Clarke EDA 1916, the Labour Court held that Ms Clarke had been discriminated against when she was dismissed aged 65 and determined that the objective reasons identified by the council were not justified by a legitimate aim.
Counsel distinguished the facts of that case from the instant case as the complainant in the instant case had not been denied an extension of tenure. The respondent had decided to change the retirement age of the complainant’s cohort but required Primary Legislation to enable that change. The respondent contended that this demonstrated the objective aims for the measures in question and that measures were reasonable and necessary for the achievement of that aim.
Evidence of Ms A.
Ms A told the hearing that in 2016 an Interdepartmental group had been established to consider the barriers to longer working in the Public Service. This was finalised by Government decision on 5 December 2017 to increase the age of retirement to aged 70.
Evidence of Ms B
Ms B addressed the challenges around administering Circular 21/2017 on Head Count. There was some uncertainty around accommodating applicants under the scheme. 70 people were approaching 40 years’ service and there were 32 applicants for Circular 21/2017 from a 7,000 headcount. The Dept was fixed with a headcount and could not exceed this.
A Hiring Campaign was launched 2018/2019.
Counsel concluded by re-affirming that it took some time for a Government decision to become law. There was a democratic process surrounding this change and the legitimate objective of observing a prevailing law ran through the case. A cut off date had been established in the 2018 Act which did not encompass the complainant and there was no retrospective effect or relaxation of this rule by the time of the March 2019 report.
Findings and Conclusions:
I have carefully considered both oral and written presentations in this case. I have reflected on the evidence adduced.
In arriving at this decision, I have taken account of all submissions and my own application of case law to the facts of the case along with SI No 600/2017 Code of Practice on Longer Working, December 20, 2017 and Retirement and Fixed Term Contracts Guidelines, IHREC, 2018.
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 if 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.
Draft legislation seeking to amend Section 34 of the Employment Equality Act by refraining from setting a mandatory retirement age is currently before the Select Committee on Justice and Equality
Equality Update, Emma Davey, BL IELJ, 2019 16(3) 67-72. Neither party at hearing had any update on the progression, if any of this draft legislation.
The Court of Justice of the EU has addressed the topic of Age Discrimination through a large volume of cases.
Horn Feldt 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 Complainant has chosen to advance his case solely by oral and written submission. I requested that he send in details of communication after the retirement and I am satisfied that this communication was exchanged with a separate government department to the respondent. I received these after the hearing.
The Respondent had relied on a considerable portfolio of case law to illustrate their response to the claim. 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
A key issue in this case is the Social Policy backdrop to the qualifying age for state pension from 65 to 66 years of age which changed in 2014. This created an anticipated time lag from a date of retirement where an employee would retire aged 65 and would be expected to wait a further 12 months until their 66th birthday to collect on CSP. A point of further interest in this case is that the complainant was classed as “B” prsi and not dependent on that scenario. However, the genesis of Circular 21/2017 is steered firmly towards that eventuality
“ I am directed by the Minister for Public Expenditure and Reform to advise you of the arrangements set out in this Circular for certain civil servants to be retained beyond their compulsory retirement age of 65 until they reach eligibility for the contributory state pension which is currently age 66 but is due to increase to age 67 on 1 January 2021 and to age 68 on 2 January 2028 “
The Complainant has advanced the case that he was forced to retire aged 65. Following this, he was permitted an additional year service as an unestablished Civil Servant, albeit in the same job. He has submitted that he was discriminated on age grounds in terms of section 6(2)(f) and contrary to Section 8 of the Acts by the delay in enacting the Public Service Superannuation (Age of Retirement) Act, 2018 and this action was compounded by the failure of the Minister for Public Expenditure and Reform to include the cohort of serving civil servants on interim contracts from benefitting from the extended age of retirement to age 70 permitted in the 2018 Act.
I can only consider this case through the single complaint lodged by the Complainant on 27 May 2019, who clarified that a Collective Agreement was not in train under Section 9 or 86 of the Employment Equality Act. The case is against the Minister for Employment Affairs and Social Protection.
The Respondent has denied these claims and has relied on the defence contained in Section 34(4) of the Act. That is the fixing of different retirement ages is objectively and reasonably justified by a legitimate aim and the means of achieving that aim were appropriate and necessary.
The Complainant ceased work on 2 December 2019 at the end of his one-year extended tenure and on his 66th birthday.
I had some reservations that the complainant may well have signed a waiver by his application for the terms of Circular 21/2017 as he had declared a comprehensive understanding of the limitations of this Circular in the face of impending Legislation at the time of application on 2 October 2018. It is of note that the complainant was not represented internally during this case.
I am satisfied that the complainant by confirmation of his firm undertaking in Circular 21/2017, understood that the Circular was mutually exclusive from the provisions of the Legislation and he took a risk in accepting the terms of the circular in the hope that he would be comprehended by Legislation sooner than his 66th birthday. He is not to be faulted in that regard, I fully accept that the complainant had genuine personal reasons for wishing to prolong his tenure at work. He acted in his and his family’s best interests. I have also found that he was working on a certain level of Political assurances received from private sources.
However , mindful that the complainant was not represented in his internal dealings with the respondent and does not appear to have taken legal advice, I have decided that the complainant raises an important question in his claim which deserves an investigation and I will move forward to findings in this case .I am satisfied that the duress complained of was resolved by the complainant when he attributed this to a self-induced duress .
I have found that the complainants age was one of two material facts which led to his cessation of employment on 2 December 2019 .The second fact was the cessation of the one year extended tenure .I accept that he was fixed by a mandatory retirement age of 65 and the extended tenure was linked to a targeted arrival at age 66 as a gateway to referenced but not actualised contributory state pension .
On that basis, age was one of the stated criteria for the cessation of his employment at 66 years.
Discrimination on age grounds is prohibited by section 8 of the Employment Equality act 1998. The complainant has raised the fact of his cessation of employment being directly attributed to his age and has satisfied the burden of proof required by Section 85 A of the Act. He has raised facts from which I can infer discrimination may have taken place.
The burden of proof now passes to the respondent to outline whether they can safely rely the provisions of Section 34(4) of the Act.
From the outset, I was struck by the remoteness of the communication between the parties. The code of practice on longer workings emphasises the foundation of meetings to prepare for retirement. I noted that the first notification on record in this case came in September 2018 when the complainant expressed a desire to stay to aged 70 and was exploring mediums where that might be possible. I want to express to both parties that I believe that the circumstances of the nuances of this case would have been best addressed on a face to face basis.
Retirement planning is a very emotional and unique time and interpersonal communication may have assisted this and avoided the perception which has remained with the complainant that he had an undignified conclusion to an otherwise successful working life, no career should end in this way.
I have found significant shortcomings in the respondents Retirement Planning Processes in that regard. I would advise a stronger alliance to the codes of practice in that regard. I appreciate that the complainant clearly benefitted from a discretionary extension of tenure and I have taken account of that supportive gesture.
However, I am charged with applying the law to the facts as they arose in this case.
I accept the respondent’s submission that the clear expectation expressed by the complainant that he would and should have a direct line to becoming a beneficiary of the Superannuation Act was not a legitimate expectation.
The Government decision dated 5 December 2017, came less than a year before the complainant’s retirement date. I could not identify any assurance given by the respondent that he was in line for such inclusion. I appreciate that the complainant hoped he would be included but this cannot in my opinion be classified as a legitimate expectation. I have not established an infringement of the principle of legitimate expectation.
Rather, he was regrouped into a distinct cohort of workers (group C) who were later reviewed in a separate Ministerial Report. This clearly distinguished and separated the complainant from the immediate beneficiaries of the Legislation and appeared to me to amount to a Political cooling off period.
I found no evidence of representations made by the complainant to the respondent in advance of completion of this review. I noted that the review was communicated by means of numbers of staff, neither party had retained names. I could not establish any evidence of an active commitment to address the legacy issue of the Groupings of workers, some of whom had left at that stage.
Nobody was “air lifted “from this grouping and included in the provisions of the Act. The respondent contended that further Legislation would be required to achieve this, and progress was impossible in the face of the definition of relevant public servant which precluded this. There was clearly no political appetite to re-open the social policy debate on those omitted from the process.
It is important to consider reflecting on the definition of the Act
Public Service Superannuation (Age of Retirement) Act, 2018
An Act to raise the age at which certain public servants are required to retire; to confer power on the Minister for Public Expenditure and Reform to raise that age by order; for those purposes to amend the Public services Superannuation (Miscellaneous Provisions) Act 2004 and certain other enactments; to amend section 29 of the Public service Pay and Pensions act 2017 and to provide for related matters
The stated aim of the Legislation was flexibility around retirement age. The Complainant was not encompassed in this as he could not fulfil the title of relevant public servant through his retirement The complainant has argued that this was a purposeful exclusion and he had never left the job , in fact he had taken on more duties in his final year .This exclusion was not saved for him in Circular 21/2017 as he had ceased pension payments and his stated objective was to increase his pension pot .
I am mindful of Fuchs Kohler and Land Hessen in the conjoined cases of C-159/10 and C-160 where two German state Prosecutors were denied a one-year extension to tenure and commenced pension in October 2009, where CJEU held that altering the aim over a period did not necessarily preclude the Law from pursuing a legitimate aim. Issues such as budgetary concerns, age structures, intergenerational fairness, political and social demographics were relied on the respondent in that case with a certain caution applied to the budgetary argument by the Court.
For it to be demonstrated that the measures concerned is appropriate and necessary, the measure must not appear unreasonable considering the aim pursued and must be supported by evidence the probative value of which it is for the national courts to assess. That evidence may include statistical evidence.
This judgement points to the breadth of factors considered by CJEU in assessing a claim for age discrimination.
While relying in Boyle C-378/17, the Respondent contended that as an Adjudicator, the role was not gifted with a competence to determine a delay in the passing of Legislation. I musty respectfully disagree as Boyle were clearly equips an Adjudicator with the power to disapply a rule of national law if it conflicts with EU law. This is a very powerful tool and must be exercised with caution. The primacy of EU law, in my opinion allows me to examine the timespan of the enactment of the Superannuation Act.
While I appreciate that the complainant was focussed on his own “watershed date “of December 2, 2018 as his date of retirement, the Government decision of 5 December 2017 took its own course through the Legislative process. I have not identified an undue delay here, given that it secured enactment and commencement simultaneously and in time for the year 2019. I realise that it goes to the root of the case that the complainant was marginally outside that process and in colloquial terms in “the wrong row of the photograph “when the “cut off date “came. It was not what he anticipated, and he was devastated, however, I must consider whether this amounts to less favourable treatment on age grounds and in this I accept the respondent application of Keegan and Horgan.
I understand the application of Palacios in the case, but the facts are distinguished by the collective agreement at issue here. I have investigated whether the complainant was discriminated on age grounds by the perceived delay in passing the Superannuation Act, 2018 and the application of the terms of Circular 21/2017 .I was drawn to the facts in Specht where Member states were viewed as holding a broad discretion in their choice not only to pursue a particular aim in the field of social and economic policy but also in the definition of measures capable of achieving this . I can see a clear application in this case.
I have now revisited section 34(4) of the Employment Equality Act and I must decide that I have found the following in the case of fixing different ages for retirement in a cohort of workers in the same employment.
The sole comparator put forward by the complainant had his 65-birthday post commencement of the Act and does not amount to a viable comparator.
I am satisfied that the Respondent was a participant in a legitimate aim of giving life to the Government decision of December 2017 to raise the option of retirement to age 70 but was not the Leader in this process. This was led by the Government.
The means of achieving that aim were appropriate and necessary through the statutory framework of the Oireachtas and were not delayed. The Ministers Report of March 2019 signalled a closed door to the complainants hopes for inclusion. However, I have found that the respondent can justifiably rely on the terms of Section 34(4) and the provision of the fixed term contract comes within the provisions of section 6(3) (c) of the Act.
I have found the claim to be not well founded.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I have concluded my investigation and find that the complainant was not discriminated against on age grounds in relation to his claim.
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Discrimination on age grounds