ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00027036
Rosderra Irish Meats Group
SIPTU Workers Rights Centre
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: 04/10/2022
Workplace Relations Commission Adjudication Officer: Shay Henry
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or 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.
The complainant, Mr Beirne, worked for the respondent, Roderra Irish Meats Group. On reaching the age of 65 he was required to resign. He made an application to continue working but this was refused.
Evidence was given under oath/affirmation at the hearing by the complainant, Mr Beirne, former employees of the respondent Mr Michael O’Keefe and Mr J Kemps, Mr Jason Palmer (Siptu) for the complainant, and Mr Finian O’Brien HR Manager for the respondent. Evidence was subject to cross examination.
Submissions were received from both parties and considered.
Summary of Complainant’s Case:
The complainant, Mr Brendan Beirne, was discriminatorily dismissed on the grounds of age due to enforced retirement on 18th August 2019. In June 2019 the complainant advised his manager that he was seeking to work beyond his 65th birthday. He was aware of other employees who had been afforded this facility. He received a letter from HR on 10th June 2019 referring him to the Works Agreement in relation to retirement age. Following correspondence between the respondent and the complainant’s union official, the company confirmed their position by letter dated 15th August 2019.
The complainant had a good record with the respondent and was fit and healthy and able to perform all his duties. There was no consultation or negotiation. The company did not adhere to the Code of Practice on longer working.
Section 34 (4) of the Employment Equality Act provides for certain exceptions relating to 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 of 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 complainant was treated less favourably than his fellow comparators who were allowed to work past 65. In one case the respondent gave the reason given was that the company could not recruit a suitable replacement but the complainant understands that the employee in question decided he did not want to retire and was allowed to continue. Another employee was requested by management in 2018 to continue but chose not to. In another plant, at least one employee was allowed to work past 65.
The complainant is one of a number of former Ruskey Plant employees who transferred to the Jamestown Plant and retained the working conditions of the Ruskey Plant. These were superior conditions, and the complainant believes that this was the reason why he was not allowed to continue.
The Code of Practice – SI 600 of 2017- sets out best practice under the following headings;
Utilising the skills and experience of older workers
Objective justification of retirement
Standard retirement arrangements
Requests to work longer.
The Code states that ‘it is good practice of an employer to notify an employee of the intention to retire him/her on the contractual retirement date within 6-12 months of that date’. There was no such notification in this case. The Request to Work Longer Procedure was not followed. The respondent did not provide the complainants with the ground for the decision or the right to appeal.
Summary of Respondent’s Case:
Rosderra Meats Group, the respondent, has a long-established normal retirement age across the organisation of 65 years. Mr Brendan Beirne, the complainant, alleges that the act of the respondent requiring him to retire from his employment on his 65th birthday amounted to discrimination within the meaning of the Employment Equality Acts 1998 to 2015. The respondent rejects this claim entirely on the grounds that the long-established and contractual company retirement age, 65, is objectively and reasonably justified by a legitimate aim, including a legitimate employment policy and succession planning and that the means of achieving that aim are appropriate and necessary.
The complainant signed a contract of employment dated 11th December, countersigned by the company. He agreed to be bound by Labour Court Recommendation 12544 which confirmed that SIPTU member employees employed at the Ruskey site agreed to the contents of the various local agreements that were in place at the time in the plant covering work practices, productivity standards, terms and conditions of employment. He signed a follow-on contract on the 11th June 2001 agreeing to be bound by the Company Works agreement with SIPTU the recognised union. The Company/Union agreement sets out the normal retirement age as 65 years. When Mr. Beirne moved to the Jamestown site he continued to be employed under the Ruskey terms and conditions as he had opted not to apply for the Redundancy Package that was agreed post the closure of the Ruskey site. These terms and conditions were more favourable on basic pay rates, service pay, holiday entitlement, sick pay, etc. The complainant was enrolled in the company pension scheme, membership of which is voluntary to all qualifying employees. Mr. Beirne’s retirement age of 65 years was as per the pension scheme and it has been a long-established practice at the respondent company that this has been consistently applied throughout the company. The terms and conditions of this pension scheme, including the retirement age of 65 years, were negotiated and collectively agreed with the Trade Union SIPTU and applied at both sites (Ruskey and Jamestown, Co. Leitrim). In June 2019, an approach was made by Mr Beirne, to the respondent outlining his desire to remain working beyond the age of 65 years. The company responded by letter 10th June 2019 copying him with excerpts from the Ruskey and Jamestown site agreements stating that employees must retire on reaching the age of 65 years.
During the course of the summer 2019 the complainant said he wanted to remain on past 65 years; the company wrote to him on the 8th July 2019 confirming the Company’s position that it remained the policy of Rosderra Meats Jamestown that employees normally retire at age 65 and noting that is contained in both the Ruskey and Jamestown Company/SIPTU Works Agreements. The complainant suggests that other employees could work on past 65 years and that he should have too for the same reasons. This is denied. One employee did work past 65 years for a period of 10 months as he had a very specialist skill set as a lab technician in preparing and mixing the formulation of salts, brine, and other compounds for bacon products. He trained up an individual in these skills which are very rare and hard to find in the market and exited the business as soon as that training period was completed in March 2020. He was not a general operative.
Another employee, a General Operative was referred to by the complainant. However, he was not requested by the company to remain on after reaching 65 years; in fact he was very keen to exit as planned on his retirement date.
A third employee left on February 13th 2020, 12 months beyond his retirement again because he had very specialist skills in thermal processing of canned meat products and the maintenance of the machinery to support the process. At that time he could not be replaced in Ireland - there was no one to do so and Rosderra are one of few remaining thermal processors (canners) of meat products. The company had to engage with a Danish Company to send a technician to Ireland to train a replacement.
The complainant alleges he was retired because he was more costly than other employees This is denied. It is the Respondent’s position that the company’s compulsory retirement age of 65 years is permitted by both Section 34(4) and 37(2) of the Employment Equality Acts
In the case Group of Workers (SIPTU) V Mondelez International, there was a Union agreement in place with the retirement age noted at 65. The Labour Court recommendation set out that “the Court takes particular cognisance of the fact that the parties have comprehensive collective agreements in place across two sites which make provision for mandatory retirement at the age of 65. The Court notes that, in practical industrial relations terms, the comprehensive agreements in place on the two sites, while separate have produced what are in fact a range of common terms and conditions of employment including retirement age”.
Also, in the case involving Irish Ferries Limited V McDermott (EDA1631) it was held that it was appropriate and relevant to the upholding of the objective justification of the aim of the employer’s mandatory retirement age that the employers provided access (and contributed) to a defined pension scheme.
The second issue of concern is whether the establishment of a ‘normal retirement age’ of 65 years is an act of discrimination under the Employment Equality Acts 1998 to 2015. The complainant is alleging that he has been discriminated on the grounds of age regarding the issues as outlined above and that he was retired on the 18th June 2019, because of the respondent applying its policy on retirement age.
The respondent submits that they have a well-established practice of compulsorily retiring its employees when they reach the age of 65 and this is clearly identified in the respondent’s contracts of employment, company union agreements, he was a member of the union, and pension scheme, membership of which is voluntary but encouraged for all qualifying employees. ln this respect the Respondent submits that the retirement of employees at age 65, including the Complainant was objectively necessarily and reasonably required or justified to; ensure consistency among all employees in relation to retirement; to create certainty in succession planning; to ensue cohesion in the workforce; to ensure a uniform retirement age; to ensure that there is an age balance in the workforce and; to free up jobs so that younger workers can enter to the workforce and younger workers have an opportunity for advancement/promotion.
The above are legitimate and justified aims and objectives and the means adopted by the Respondent to achieve these aims and objectives are both appropriate and necessary.
Mr. Beirne was a General Operative. He worked on a production line that has a standard manning of 5 operatives. When Mr. Beirne retired he was replaced on the line with another General Operative and the plant has a fluid replacement system where leavers are replaced with new employees and then those employees are moved from department to department as required. It is submitted that the measure of adhering to retirement at age 65 serves a legitimate aim or purpose in terms of succession planning, intergenerational fairness and provision of the opportunity for advancement/promotion and in so doing is both is both proportionate and objectively justified.
The respondent submit that it is an established fact that the normal company retirement age is 65 by contract and custom and practice and agreement with the union.
The respondent submits that by membership of the pension scheme and communication both within the workplace and with the pension providers, AON, the complainant was fully aware of the normal retirement age of 65 years.
It is the Respondent’s position that the company compulsory retirement age of 65 years is permitted by both Section 34(4) and 37(2) of the Employment Equality Acts and the alleged act of discrimination with regards to age serves a legitimate aim or purpose as laid out, and the means taken to achieve that purpose are appropriate and go no further than is necessary, i.e. they are proportionate.
The burden of proof rests with the complainant to show that he was discriminated against on the grounds of age. Should the complainant shift this burden, it is the position of the respondent that the complainant was retired in line with the normal companywide retirement age which is lawful within the provisions of Employment Equality Acts as described above.
As the Complainant has not established a valid prima facie case of discrimination on the grounds of age, the Respondent requests that the Adjudicator reject this Complainant’s allegation under the Employment Equality Acts 1998 to 2015. The company relies upon the protection afforded to it under section 34(4) of the Employment Equality Act 1998- to fix a mandatory retirement age that is objectively justified which has been detailed above in this submission. The means of achieving these aims are appropriate and necessary and the respondent asserts it has met these requirements under the Equality Acts . The respondent submits for the reasons set out above that the Complainant was not discriminated against under the Equality Acts.
Findings and Conclusions:
The Employment Equality Acts 1998 to 2015 prohibit discrimination on age grounds. Section 34(4) of the Act requires an employer to objectively justify any retirement age policy. In light of this, an employer is generally required to establish the following:
(a) That there is a contractual retirement age that forms part of the terms and conditions of employment;
(b) That the policy it is objectively and reasonably justified by a legitimate aim; and
(c) The means of achieving that aim are appropriate and necessary.
It is well established that the imposition of a mandatory retirement age is discriminatory per se, and to be lawful such a mandatory retirement age must serve a legitimate aim or purpose and the means deployed to achieve that purpose must be appropriate and should go no further than is necessary. The burden of proof in justifying an otherwise discriminatory provision rests with the respondent.
It is a key requirement that the employer can identify a contractual retirement policy within the organisation. Based on evidence given at the hearing it is clear that both the signed contract of employment, and the collective agreement, specify the retirement age of 65. Therefore, this requirement is met. If the employee’s contract does not include a retirement age then the employer may not be able to compel the employee to retire at a certain age. However, even if the contract does contain an enabling clause (or an implied clause through a collective agreement) this does not mean that the employer has a unilateral right to enforce retirement against the employee’s will. In circumstances where an employer intends to retire an employee in accordance with a contractual retirement policy, difficulties can arise where that employer has allowed other employees to work beyond that retirement age. The respondent in evidence outlined the rationale underpinning the decision to allow certain employees work past 65. I accept this evidence and that it was the norm in the company for employees to retire at 65.
The next key consideration is whether the employer can objectively and reasonably justify the decision to insist on retirement by reference to a legitimate aim.
Following recommendations of the Interdepartmental Group on Fuller Working Lives, the WRC published a Code of Practice in 2017 on encouraging longer working which sets out best practice and includes the following advice to employers when considering requests to work on past the normal retirement age:
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.
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 or 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.
Examples of ‘legitimate aims’ have been recognised by the courts including;
The need for the organisation to ensure motivation and dynamism amongst its workforce through better prospects of promotion due to senior staff retiring; The need to create opportunities in the workplace for those seeking employment, and sharing out employment opportunities fairly between the generations; Facilitation of workplace planning including, but not limited to, the efficient planning of the departure and recruitment of staff; Ensuring a mix of generations of staff so as to promote the exchange of experience and new ideas; Avoiding the need to dismiss employees on the ground that they are no longer capable of doing the job which may be humiliating for the employee concerned;
The Respondent has detailed the objective grounds for retirement at 65 as follows; Ensuring the health and safety of the workforce and of those persons utilising the organisation’s services; ensure consistency among all employees in relation to retirement; to create certainty in succession planning; to ensue cohesion in the workforce; to ensure a uniform retirement age; to ensure that there is an age balance in the workforce and; to free up jobs so that younger workers can enter to the workforce and younger workers have an opportunity for advancement/promotion.
However, there is no evidence that these reasons were put to the complainant at any stage. Neither the examples of legitimate aims determined by the courts, nor those detailed by the respondent, can be considered as generic justification for refusing all requests to work past the normal retirement age. Otherwise the intention of the social policy in relation to longer working would be rendered meaningless. In my view there is an obligation on the employer to present the employee making the request to work longer with the specific objective grounds why his or her request is being refused. The employee should have the opportunity to test these arguments before a final decision is made. There is no evidence in this case that the objective grounds, now being put forward by the respondent, were presented to the complainant in advance of the decision to refuse his request to work longer. The respondent, in the communications, relied exclusively on the enabling clause in the contract and in the collective agreement.
I therefore find that the complainant was discriminated against. In light of the circumstances of the case I find compensation to be the appropriate remedy and award the complainant €30,000.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 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.
The complainant was discriminated against and I order the respondent to pay him the sum of €30,000 in compensation
Workplace Relations Commission Adjudication Officer: Shay Henry
Compulsory retirement, age discrimination