ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00027832
Bord Na Mona Plc
Aine Feeney SIPTU Workers Rights Centre
Niamh Ní Cheallaigh, IBEC
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 13/09/2021
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
In accordance with Section 41 of the Workplace Relations Act, 2015 and 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.
Specifically, I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.
I explained the changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General  IESC 24 on 6 April 2021. The parties agreed to proceed in the knowledge that decisions issuing from the WRC will disclose the parties’ identities.
The relevant witnesses gave sworn evidence.
The Complainant commenced employment with the Respondent on 15 May 1975 and was employed as a General Operative until he retired in April 2020. He worked 39 hours per week and earned approximately €1,060 per week. He is claiming that the Respondent discriminated against him by refusing to allow him work beyond his 65th birthday.
Summary of Complainant’s Case:
The Complainant was employed by the Respondent from 15 May 1975. In the course of November 2019, and in anticipation of his impending retirement date of 13 April 2020, that being the date of his 65th birthday, the Complainant applied to management to work beyond this date.
A meeting was convened on 6 December 2019 and correspondence issued on 13 December 2019 confirming that his application had been declined. The correspondence outlined four headings for the refusal, namely:
1. Bord na Mona’s conditions of employment which require that all employees retire on their 65th birthday,
2. Pension scheme rules
3. Established custom and practice
4. Employees’ entitlement to draw down a pension
but did not take account of the Code of Practice on Longer Working nor indeed include any objective justification for the refusal.
The complainant then appealed the outcome and a Grievance Appeal hearing was conducted on 7 January 2020.
An outcome issued on 15 January, 2020 upholding the decision to refuse the request. It further confirmed the four headings as outlined above but in addition referred to “due regard to the health and safety requirements given thephysically demanding nature of the general operative role and tasks associated with that role”.
Summary of Respondent’s Case:
The Respondent stated that the company retirement age is 65 years of age. This is the retirement age set out in the contract of employment and is the retirement age that employees are aware applies to them. However, in line with the Workplace Relations Commission Code of Practice on Longer Working SI 600/2017 and in relation to requests from employees to work longer, the Respondent’s JIRC sat to discuss the matter of retirement age in the organisation as a number of employees were reaching the contractual retirement age of 65. The JIRC issued an interim decision on April 1 2020 which set out that “In the case of any worker who before now has registered a grievance with the Company relating solely to being retired at age 65 years to be offered a fixed term contract for 12 months, subject to satisfactorily passing a medical examination in advance.”
In line with the above mentioned interim JIRC decision the Complainant was formally offered a 1-year post retirement fixed term contract on 8 May 2020 subject to satisfactory completion of a medical examination and the Respondent corresponded with Ms Aine Feeney of SIPTU to clarify this.
An appointment with the Respondent’s Occupational Health provider, Medmark, was scheduled to take place on 15 June 2020, however, the Complainant failed to attend so two alternative dates of 23 and 25 September 2020 were offered to him. The Respondent was aware that due to the Complainant’s diabatic condition he was concerned about having to fast before attending the occupational health appointment – for this reason the Complainant was advised that he could complete his blood work with his own GP and share the results with Medmark in advance of the appointment.
On 17 2020 September, the Complainant advised the Respondent that he was declining the Medmark appointments due to his concern over his diabetes and he requested an alternative venue. The Respondent advised him that Medmark were the appointed Occupational Health Provider and it was again reiterated that he could have his blood work completed locally to prevent him having to fast. The Complainant refused to attend any alternatively suggested dates and therefore did not attend the required medical assessment to be granted a 1-year post retirement fixed term contract.
Findings and Conclusions:
1. I note that in November 2019 the Complainant, in anticipation of his impending retirement on 13th April 2020, namely his 65th birthday, applied to management of the Respondent to work beyond this date. Further to this request, correspondence issued on 13 December 2019 confirming that his application had been declined. This was subsequently appealed and a decision was communicated on 15 January 2020 upholding the original decision to refuse the request.
While I note that on 1 April 2020 an interim decision was made by the Respondent’s JIRC to offer fixed term contracts to those over 65 years of age, subject to a medical assessment, it is clear from an email of 8 April 2020 from Sharon Doyle of the Respondent to the Complainant’s representative Aine Feeney, wherein she said that “I am awaiting information in relation to a number of the items outlined in the JIRC decision and will revert to the union officials with an update by the end of next week”, that the Respondent’s position on this matter was not finalised prior to the referral of this complaint to the WRC by the aforementioned Ms Feeney on 9 April 2020. Accordingly, I cannot make any reference to the 1 year fixed term contract in my decision and will only address the alleged breaches of the Act which occurred prior to complaint being referred, namely the original decision of 13 December 2019 denying the Complainant the requested extension as well as the subsequent appeal which was communicated to him on 15 January 2020.
2. As there was a dispute between the parties over his average earnings I requested a P60 from 2018 as well as an income statement from 2019. These were provided to me by the Complainant’s representative after the hearing and I calculated that he earned a gross average weekly wage of approximately €1,060.
The Employment Equality Acts 1998 and 2008 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.”
Section 6 of the Employment Equality Acts 1998-2015 (The 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”)’.
Section 34 of the 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.”
The original burden of proof is on the Complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably on the discriminatory ground cited. Section 85(A) of the Act states as follows:
(1) Where in any proceedings 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 or her, it is for the respondent to prove the contrary.
(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant…
In Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how 85(A) of the Act cited above is to be interpreted.:
“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”
I am satisfied that the Complainant in this case discharged the initial burden of proof and established a prima facie case given that a decision was made by the Respondent to terminate his employment solely because he was turning 65 years of age. The burden of proof now shifts to the Respondent to show that the termination of the Complainant’s contract was objectively justified on the grounds of age in accordance with section 34 (4) above.
I note firstly the contents of a letter from the Respondent to the Complainant of 13 December 2019 in response to his request to work beyond 65 years that states “the current arrangements in respect of employees retiring at 65 are clearly established and understood by all employees in Bord na Mona Group. We believe that retaining the retirement age at 65 years of age is still appropriate and in line with:
1. Bord na Mona conditions of employment which require that all employees retire on their 65th birthday
2. Pension scheme rules
3. Established custom and practice
4. Employees entitlement to draw down a pension
Having reviewed these four reasons, I am satisfied that none of these meet the objective justification tests which have been set out in case law both from the Irish courts and the Court of Justice of the European Union, such as the Labour Court decision in the matter of Mary Clarke and Louth County Council (EDA1916).
I further note that the decision to refuse his request to work beyond 65 years was appealed by the Complainant and that in a letter of 15 January 2020, he was informed that his appeal was unsuccessful. It is striking that, as well as citing the four reasons outlined above in the letter of 13 December 2019, a further justification for the retirement was included in the 15 January 2020 correspondence namely “Due regard to health and safety requirements given the physically demanding nature of the general operative role and tasks associated with that role”, which is the first time that an attempt at objectively justifying the retirement was made by the Respondent.
I am struck however firstly by the fact that this reason was not included in the letter of 13 December 2019 when his retirement extension was refused and believe that it was only added to the correspondence of 15 January 2020 because, having reviewed the minutes of the appeal hearing of 7 January 2020, the Complainant’s excellent physical condition was highlighted by the union representative at the meeting. It is also worth noting that neither the Complainant’s physical condition or any health and safety concerns about his age were raised by the Respondent’s representative at the appeal hearing and the first time such concerns were highlighted by the Respondent was in the aforementioned letter of 15 January 2020.
While I note that the CJEU and the Labour Court have accepted that people’s physical capacity deteriorates as they age and that setting a retirement age is an objective and legitimate means of protecting the safety of staff, such as in the case of Irish Ferries v McDermott EDA1631 where Mr McDermott, a docker who had challenged the imposition of a retirement age of 65, argued, amongst other things that he was in good health and capable of discharging his duties, the Respondent in that matter “set out good grounds that objectively justify the selection of those ages for this category of staff. Those grounds include the arduous nature of the work which becomes increasingly difficult with age”
Crucially in this case however, I note that the assertions made in the letter of 15 January 2020 about the physically demanding nature of the role were not set out in the letter of 13 December 2019 refusing the extension and were not raised by the Respondent’s representative during the meeting of 7 January 2020 where the Complainant and his representative would have the opportunity to rebut them.
Overall, I find that the Complainant has made out a prima facie case of discrimination on the ground of age which the Respondent has failed to successfully rebut.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that 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.
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 Acts. Based upon the reasoning outlined above, I find that pursuant to Section 79(6) of the Acts, the Complainant has made out a prima facie case that he was subjected to discriminatory treatment which has not been rebutted.
In accordance with Section 82(4) of the Acts, I order the Respondent to pay the Complainant €25,000 in compensation for breaches of the Employment Equality Acts. This award is arrived at having regard to the requirement pursuant to Article 17 of the Framework Directive as interpreted by case-law that the sanction be “effective, dissuasive and proportionate”. Specifically, I consider this award to be effective in terms of meeting the intention of the legislature to remedy breaches of the Acts, and to be dissuasive in that it represents more than a nominal sum such that it will have a deterrent effect in the future. I also consider this award to be proportionate in circumstances where the Respondent made no effort to comply with the Employment Equality Acts. In addition, I have considered the effects of the discrimination on the Complainant who suffered stress as well as financial loss.
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Age discrimination; retirement age