Complainant

Respondent

Parties

Tom  Kitterick

Mayo County Fire Service

Representatives

Martina Weir Siptu - Works Rights Centre

Amanda Kane LGMA

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00062440-001

27/03/2024

The Complainant commenced working for the Respondent on the 17th of November 2008 as a fire fighter at the Westport Fire Service in County Mayo. In 2019 he was promoted to Station Office.

The Complainant’s wages are made up of rates of fire drill and retainer fees with a gratuity payable at age 58, as opposed to a pension.

The Complainant had been granted two extensions of his employment, from age 55 to 58 and from 58 to 60. Both occurred after he completed a successful medical assessment. The Complainant emailed on the 16th of November 2023 expressing his wish to be retained beyond the 18th of December 2023, his 60th birthday.

The Complainant’s employment terminated on the 18th of December 2023.

The Complainant request for a further extension was refused as he was now 60. He claims the reason was not objectively justified, did not meet a legitimate aim, nor was it a necessary and proportionate means of achieving that aim. The Complainant claims it is a breach of the Employment Equality Acts 1998-2015 as amended (hereinafter the “EEA”) amounting to discrimination on grounds of age.

The Respondent denied the allegations.

The parties agreed that if the Complainant was successful compensation was the appropriate form of redress.

The Complainant was represented and provided detailed written and oral submissions.

Opening Statement

The Complainant’s representative set out that the Complainant had been employed by the Respondent. However, he was then discriminated when his employment was terminated. His request for an extension of his employment was refused.

The representatives explained that the manner in which the Complainant was paid was complex given that they are is a retainer fee, a call out fee and a gratuity payout when they turn 58.

The representative believed that the complainant had been discriminated based on the facts of the case. The reason provided was not objectively justified. It breached the EEA. It was not proportionate.

The Complainant’s representative stated that there are a number of other decisions that are awaited, including a Galway case. However, this particular instance was different to the decision provided by the Respondent at the hearing, of Reilly v Meath County Council ADJ-00050118. The complainant here is a station officer.

At this particular station there should be a staff of 12. There are currently 9 available. In the county there are others being trained currently. They have done an initial three weeks. More training is scheduled for August and then further training. There are no recruits for this station. Firefighters have a recruitment crisis.

The Complainant received his gratuity at 58. He did not have a payment taken from his salary for his gratuity contribution for any additional time worked after 58.

The Complainant emailed seeking to stay on past the 18th of December, on the 16th of November 2023. The response referred to the review of the single pension scheme. There was a circular from April 2024 which proposed raising the retirement age to 62. The retirement age of 55 came into effect in 2003 based on a report. This was extended further in the subsequent years. The firefighters have to undergo medical for each extension.

It was submitted that there is one firefighter in Dublin who is 70.

The Complainant’s representatives submitted that there was no justification for the retirement age of 60. There is no reason for the retirement age in relation to the Complainant, save for a reference to the circular. The representative stated fire fighters should be aware of the reason for their forced retirement.

The Complainant’s representative referred to Mallon v The Minister for Justice & Ors [2024] IESC 20 where the Supreme Court found that employers are best placed to make decision on an objectively justified age. She noted that the age there was 70 where here it is different. There can only be extensions here by doing medical examinations. There are fire drills which check the physicality of all fire officers. There is rigid training which require a high level of fitness. This is much more physical than the Sheriff which was the role in the Mallon Decision. Here there was no assessment of the complainant’s ability to continue his job.

In relation to the Complainant’s position, the station officer is the highest in the station. It includes an administrative role and a supervisory role. That role has now been filled. Whilst a promotion opportunity to retain staff can be an aim in mandatory retirement cases, here there is a recruitment issue. The substation officer was promoted. The overall effect was that they are now down a man in the station. There are ongoing recruitment issues.

In Mallon, the Plaintiff was a solicitor who had another form of income. The Complainant here has no other role and is now unemployed. The state pension will not kick in for him for another six years. The representative stated that for it to be a valid aim and objectively justified, then it should be known by all firefighters who it affects. There was no proper scrutiny of the age. There has been no reason given and no audit in respect of it. It is common knowledge that there is a recruitment issue with firefighters. As seen in other counties extension can be granted in exceptional circumstances.

The Complainant’s representative questioned how the retirement age can be objectively justified if there are people retained around the country who are over that age. The Complainant’s representative queried the statement in the Respondent’s submission that there is no firefighter at any grade in employment beyond the age of 60. She wondered whether this was just relating to Mayo. She was aware of ones in Dublin and Galway. Whilst there is a national circular, certain local authorities have retained firefighters beyond 60. This shows that the aim is not objective. Due to the need for firefighters, others are being allowed to remain on. The recruitment issue is only becoming worse. It is common knowledge that firefighters have been striking. There is an arbitrary nature of having 60 as a retirement age. The justification does not stand up to scrutiny.

In respect of the physicality of the job, the Complainant was trained and is fully prepared for the role. The fitness has been an aspect of the role throughout his employment. It makes no sense for this to cease at 60.

Summary of the Complainant direct evidence

The Complainant was the only witnesses on his side. He gave evidence under oath.

The Complainant was the station office at Westport at the time of his retirement. As his retirement date was drawing close he applied to extend his role. This was refused.

For the last four years, the Complainant has been station officer running the station. He takes the calls, attends meetings, does the paperwork for calls, and organises training. This is the less active part of the role. He was also a firefighter which was a very physical role.

The Complainant explained that the purpose of the drills is to keep the firefighters ready to go and do the job. This could include lifting ladders, a pump drill where you have to lift, connect and carry the pump with others. All firefighters do all of the jobs. It is a physical job. There are drills every week. At the last drill that the Complainant did, he had no difficulty it was “plain sailing”. The Complainant has no concerns about his physicality. He had been very lucky health wise and felt he was well able to do the job.

The Complainant’s payment was divided into four aspects; call outs, drills, retainer, and station officer. The Complainant had no other income at that time. The Complainant was now receiving unemployment benefit which will soon run out. There was approximately one month left of it.

Summary of the Complainant cross examination

The Complainant was then cross examined. He accepted that he was aware of the letter dated the 8th of December 2020 from the Department of Housing local government, Circular LG(P) 02/2020, regarding the compulsory retirement age of 60 for retained firefighters.

Summary of the Complainant re-examination

During re-examination, the Complainant stated he had no other option but to lodge this complaint.

Law Relied on by the Complainant

Section 34(4) of the EEA

“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 Irish Human Rights and Equality Commission Guidelines on Retirement and Fixed Terms Contracts dated April 2018; and the Code of Practice on Longer Working;

Industrial Relations Act, 1990 (Code of Practice on Longer Working)(Declaration) Order 2017 (SI No 600 of 2017)

The Complainant relied on a number of cases, including:

Seldon v. Clarkson Wright & Jake [2012] I.C.R 716;

Donnellan v. Minister for Justice and Law Reform and Others [2008] IEHC 467;

Prigge v. Deutsche Lufthansa [2011] E.C.R. I-8003, Case C-447-08;

Thomas Doolin v. Eir Business Eircom Limited, ADJ-00045261;

Patrick O’Callaghan v Ferrero Ireland Ltd, ADJ-00043459; and

Beirne v Rosderra Irish Meats Group, ADJ-00027036.

The Respondent provided detailed written and oral submissions.

Opening Statement

The Respondent’s representative provided an opening statement. The facts were not in dispute between the parties. However, the Respondent denied there was discriminate. He referred to the Supreme Court decision of Mallon v The Minister for Justice & Ors [2024] IESC 20 and the WRC Decision of Reilly v Meath County Council ADJ 00050118.

The retirement age is being extended to 62 and the Union is involved in this decision. This cannot be applied retrospectively. It has not commenced yet.

The Respondent’s representatives submitted that in Mayo fire fighters have to retire at 60.

The Respondent’s representative referred me to the expert report which provided retained firefighters with the option of retirement at 58 subject to a compulsory medical assessment annually. They have to apply that. The representative also referred to the circular letter LG(P) 19/03. This was further extended on the basis of the recommendation by the WRC to 60 years.

It was noted that the Mallon decision had been determined after submissions were filed. The representative referred to the rationale of that decision, employers are best placed to determine the objectively justified age. Here there had been more involvement from the employees via the working group which included the Union and the employers. 

The representative also stated that a failure to set out the reasoning in the refusal does not mean that the retirement is discriminatory. The representative referred to paragraphs 4.9 to 4.11 of their submissions where the objective justification for this was addressed. In particular, these referred to the physical and mental abilities of the role.

The representative referred to the different elements of the complainant’s role, the administrative part and then the attending of calls.

In respect of the recruitment issues, there is ongoing engagement with the Union and there will be changes to the rotas.

There was a crew of 10 in Westport, which has increased to 12. There are new retained firefighters. In  Westport there has been one retirement since the Complainant retired. There are nine operating staff. Westport has never had 12 firefighters. The Respondent is always recruiting firefighters. This has increased this year as there has been an increase in the staff required.

The Respondent’s representative highlighted that there was no direct evidence of any firefighters over the age of 60. There was a national circular which must be followed.

The Respondent did not call any witnesses.

Law Relied on by the Respondent

Section 6(1) of the EEA provides

“For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,”.

The Respondent also referred to section 77 of the EEA;

Section 34(4) of the EEA states

“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 Respondent referred to the Article 13 of the EC Treaty and the following recitals of the Preamble of Directive 2000/78/EC

Recital 14 provides: - “This Directive shall be without prejudice to national provisions laying down retirement ages.”

Recital 18 provides: - “This Directive does not require, in particular, the armed forces and the police, prison or emergency services to recruit or maintain in employment persons who do not have the required capacity to carry out the range of functions that they may be called upon to perform with regard to the legitimate objective of preserving the operational capacity of those services.”

Recital 25 provides: - “The prohibition of age discrimination is an essential part of meeting the aims set out in the Employment Guidelines and encouraging diversity in the workforce. However, differences in treatment in connection with age may be justified under certain circumstances and therefore require specific provisions which may vary in accordance with the situation in Member States. It is therefore essential to distinguish between differences in treatment which are justified, in particular by legitimate employment policy, labour market and vocational training objectives, and discrimination which must be prohibited.”;

Article 2(2) of Council Directive 2000/78;

Article 4(1) of Council Directive 2000/78 states

“Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.”

Article 6(1) states

“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”;

Labour Court Recommendation LCR17223;

Circular LG(P) 19/03;

Circular LG(P) 02/2020;

Circular LG(P) 04/2024;

Donnellan v Minister for Justice [2008] IEHC 467;

Saunders v CHC Ireland Ltd DEC-E2011-142;

Wolf v Stadt Frankfurt am Main C-229/08; and

Palacios de la Villa v Cortefiel Servicios SA Case C-411/05.

The Complainant has alleged he has been discriminated against by reason of his age.

In conducting my investigation and in reaching my decision, I have reviewed all relevant submissions and supporting documentation presented to me by the parties. I have carefully considered the oral evidence adduced at hearing. I have carefully considered the caselaw to which the parties have directed me to. I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters.

Having considered at length all the evidence presented to me the factual matters are not in dispute between the parties.

The complaint is made pursuant to the Employment Equality Act, 1998 pursuant to the age ground.

The issues for consideration by me in the within complaint is as follows:

1. Whether or not the Complainant was subjected to discriminatory treatment by reason of his age;
2. If he was subjected to discriminatory treatment, was this objectively justified by a legitimate aim;
3. The means of achieving that aim were appropriate and necessary.

The Relevant Law

Section 6 of the EEA provides

“(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,”

…

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

…

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

…

(3) …

(c) Offering a fixed term contract to a person over the compulsory retirement age for that employment or to a particular class or description of employees in that employment shall not be taken as constituting discrimination on the age ground if—

(i) it is objectively and reasonably justified by a legitimate aim, and

(ii) the means of achieving that aim are appropriate and necessary.”

Section 34(4) of the EEA transposes article 6 of the Directive and provides for exceptions relating to, inter alia, the age ground:

“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 —

(i) it is objectively and reasonably justified by a legitimate aim, and

(ii) the means of achieving that aim are appropriate and necessary.”

The burden of proof

Section 85 A (1) of the EEA states:

“Where in any proceedings facts are established by or on behalf of a claimant 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.”  

This means that the Complainant is required to establish, in the first instance, primary facts upon which the claim of discrimination is grounded and from which it may be presumed that there has been discrimination. If he succeeds in doing so, then, and only then, the burden of proof passes to the Respondent to prove the contrary.  

The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. “Prima facie” evidence is evidence which in the absence of any contradictory evidence would lead any reasonable person to conclude that a discrimination had occurred.

The inference of discrimination must have a factual/credible basis and cannot be based on mere speculation or assertions which are unsupported by evidence.  

In Margetts v. Graham Anthony & Company Limited [EDA038] the evidential burden which must be discharged by a complainant before a prima facie case of discrimination can be said to have been established was outlined by the Labour Court as follows:

“The law requires the complainant to establish facts from which it may be inferred that discrimination has taken place.  The appellant must, on the balance of probabilities, prove those facts from which such inferences can be drawn.  When these facts are established to the satisfaction of the Court, the onus shifts to the respondent to show, on the balance of probabilities, that it did not discriminate against the appellant.  The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination.  The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.” [emphasis added]

The Labour Court elaborated on the interpretation of section 85A (1) in Melbury v. Valpeters (EDA/ 0917) where it stated that this section:

"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".  

Case Law

The Supreme Court recently considered the issue of a mandatory retirement age of a county sheriff in Mallon v The Minister for Justice & Ors [2024] IESC 20. Mr. Mallon was a solicitor in private practice who also held the position of county sheriff, for which he was paid an annual retainer and certain fees. The Supreme Court considered the Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (the “Directive”) as well as the case law of the Court of Justice of the European Union (the “CJEU”).

The Supreme Court held that once the aims sought are legitimate and the measure is proportionate, a mandatory retirement age rule will not offend the prohibition on age discrimination.

The Supreme Court noted the CJEU jurisprudence holding that

“[a] measure providing for mandatory retirement (whether a legislative measure or a provision of a collective agreement) may be justified even where it does not identify the aim being pursued: the ‘general context of the measure concerned’ may be relied on to identify the underlying aim of the measure for the purpose of judicial review of its legitimacy and whether the means put in place to achieve that aim were appropriate and necessary” (paragraph 62(3)). 

At paragraph 62(5), the Supreme Court noted that legitimate aims can include:

-        Promoting the employment of younger people and facilitating their entry to the labour market;

-        Promoting the access of young people to the professions;

-        Establishing an age structure that balances younger and older workers;

-        Sharing employment between the generations;

-        Improving personnel management by enabling efficient planning for departure and recruitment of staff;

-        Preventing possible disputes concerning employees’ fitness to work beyond a certain age;

-        Avoiding employers having to dismiss employees on the ground that they are no longer capable of working which may be humiliating for the employee; and

-        Standardising retirement ages for professionals in the public service.

The Supreme Court noted that CJEU jurisprudence following Donnellan v. Minister for Justice and Law Reform and Others [2008] IEHC 467 does not support individual assessments. The Supreme Court found that such individual assessments can give rise to disputes and can also potentially impact upon the dignity of employees. Consequently, the Supreme Court found that the avoidance of an individual capacity assessment has been recognised as a legitimate aim in favour of justifying a general retirement age (paragraph 74).

The Supreme Court also held, inter alia, that:

-        The “consistent and systematic” and “coherent” application of mandatory retirement rules is not only permissible but is an important element of the proportionality analysis under the Directive (paragraph 76).

-        A mandatory retirement age which is lower than 70 applies in certain areas, including An Garda Síochána, the Permanent Defence Forces and the fire services where “[p]articular considerations apply” (paragraph 97).

-        The decision to adopt a mandatory retirement age is a matter for the relevant competent authority which (in this case) is “better placed that the courts to assess what [is] necessary or appropriate for the effective operation of the coronial system”. Courts have a limited role insofar as they are only concerned with whether the competent authority’s judgment appeared to be unreasonable (paragraph 104).

-        While there were admissibility issues surrounding a Ministerial statement in the Dáil, a general policy to increase mandatory retirement ages is not inconsistent with recognising and legislating for specific needs in an area (paragraph 108).

-        Significant reliance could be placed on whether any financial hardship would arise, and this would go to an analysis of the proportionality of the mandatory retirement age (paragraph 110).

The Relevant Facts

Having carefully considered all of the evidence adduced and based on the facts are set out above, I find that the Complainant has clearly established a prima facie case that an act of discrimination took place in relation to a mandatory retirement on his 60th birthday.

However, to come within the exception under section 34(4) of the EEA, an employer must establish that the relevant mandatory retirement age was objectively and reasonably justified by a legitimate aim; and that the means of achieving that aim were appropriate and necessary.

Legitimate Aim:

The Respondent submitted that its legitimate aims were:

1. “proper functioning of fire services reflecting that in fields of work where physical and mental abilities are crucial for the role, it will be more likely that setting maximum retirement ages for those roles will be proportionate and justified”; and
2. “The duties of the fire service as it relates to the protection of people and property, requires the use of physical capacity. The nature of those duties requires a particular level of physical capability insofar as physical inadequacies in the exercise of those duties may have significant consequences for fire service employees and members of the public. It follows that the possession of particular physique may be considered to be a genuine and determining occupational requirement for the pursuit of the role of firefighter.”

Whilst the Complainant argued that as the reasoning was not expressly set out, that makes the reasoning unjustified, the CJEU jurisprudence, as outlined in Mallon, upheld the position that a legislative measure which does not identify the aim being pursued, but does provide a general context of the measure concerned, can be relied on to identify the underlying aim of the measure. Thus, I cannot accept that argument.

The Supreme Court in Mallon unanimously determined the relevant competent authority is “better placed than the courts to assess what is necessary or appropriate for the effective operation of”, the role. I see no reasons why this would not be the case here. The mandatory retirement age of 60 for retained firefighters, was set out in Circular LG(P) 02/2020 dated 8 December 2020 (the “Circular”), following a WRC Recommendation. I note the active involvement of the Unions in determining the mandatory retirement age. This recommendation was accepted by management and unions. The Respondent has acted in accordance with same.

Whilst the Government has since announced its intention to extend the retirement age for firefighters to age 62. However, this occurred after the Complainant had retired and his complaint was filed with the WRC. Therefore, the Respondent acted in accordance with the relevant Circular in place at the time.

I find that the Respondent is best placed to assesses what is necessary or appropriate for the effective operation of its fire service. I accept that the physical and mental abilities of retained firefighters are crucial for the role and the proper functioning of the fire service. I note that the Respondent acted in accordance with the Circular in place at the time and engaged in succession planning. In the circumstances, I find that the Respondent has established that the mandatory retirement age was objectively and reasonably justified by legitimate aims.

Appropriate and Necessary Means:

The Mallon case provides limited insight into what is appropriate and necessary. In that case, there was reliance on the fact that retirement at 70 years was enshrined in legislation and was always known to Sheriffs. Obviously, a mandatory retirement at 70 years does not pose the same financial risk to retirees and is now the standard maximum retirement age across the public sector. What distinguishes this case from Mallon is that the retirement age moved incrementally from 55 to 58 years, 58 to 60 years, and then from 60 to 62 years. The increases outlined were part of a collective agreement/joint consideration although for the increase to 62 years (on 3rd May 2024), there was no evidence of consideration of the means that were appropriate and necessary.

In Mallon at paragraph 62 as above, there is a reference to “general context of the measure concerned”. This indicates that context is relevant to the legitimate aim along with the means under which it is put in place.

In Donnellan v The Minister for Justice & Ors [2008] IEHC 467 Mc Kechnie J held:

‘Any discrimination with regards to age must, as put by that Directive, serve a legitimate aim or purpose, and the means taken to achieve that purpose must be appropriate and should go no further than is necessary, i.e. they should be proportionate.’

General Context

The introduction of the new mandatory retirement age was ‘with immediate effect’ on 3rd May 2024. This differed from the previous extensions that provided for a lead-in period. The previous extensions and circulars were not specific on implementation dates. Indeed, when the age was increased from 55 in 2003, there was a holding period which the Labour Court referred to as ‘a uniform extension period of 3 months for the purpose of training new personnel.’

The next extension from 58 to 60 years referred to ‘Agreement in principle’ in the Circular which referenced the WRC Agreement in place from 31st January 2020.

In summary, the mandatory age increased in 2003 through the Expert Group Report and there was a lead-in period. Again in 2020, there was a lead-in period from January to December 2020.

The most recent extension was flagged in August 2023. The unions and management were supporting a further extension, although the circular did not issue or take effect until 3rd May 2024.

For the complainant, even though he was aware of retirement at 60 years, he was also aware of agreement in principle to increase this. He applied for another extension before his 60th birthday. He was refused.

Normally, due to national engagement on the means of implementation, there was no requirement to engage with individuals. However, there was no consideration of the means of implementation, this time around.

Mallon however can be distinguished from this case as the legislation was clear and in place from the outset on mandatory retirement age at 70 years. In this case, the age was moving incrementally and there was a custom of joint engagement on the means of implementation.

The complainant in this case was requesting an extension limited to one year and which was granted every year from his 55th birthday. It is regrettable that no consideration either nationally or locally took place to use the normal medical assessment on an interim basis pending the imminent extension.

Current Application of Circular

The complainant is still 60 years of age and there is a Circular in place since 3rd May 2024 which allows for Retained Firefighters to continue to 62 years subject to an annual fitness assessment. The reason relied on for no extension in December 2023 was the Circular in place at the time with retirement at age 60. With this obstacle removed in May 2024, the complainant has not been facilitated to return and work up to his 62nd birthday. The Circular for some reason did not address those that had just exited and unsuccessfully applied for extensions. The complainant would have likely considered a return.

Another alternative was an interim contract pending the increase in age, particularly as management and unions were supportive of an increase from August 2023. The respondent also had the benefit of assessing the complainant’s fitness as per the previous assessments. The scenario that unfolded for the complainant signalled that his skills and experience were not required particularly as no practical means were considered, at any stage.

The respondent representative relies on Palocios de la Villa (C-45/09), as authority to demonstrate that mandatory retirement ages were not discriminatory. I am not convinced of this, as Palocios had its own context where pension entitlement automatically followed at 65 years and the legitimate aim in that case of access to the labour market is completely different to the legitimate aim in this case. Palocios though is of assistance as follows, as it refers to member states finding the right balance of interests (par 71), the financial position of workers (par 73), along with the specific features of the job (par 74) as below:

“71 It is, therefore, for the competent authorities of the Member States to find the right balance between the different interests involved. However, it is important to ensure that the national measures laid down in that context do not go beyond what is appropriate and necessary to achieve the aim pursued by the Member State concerned.”

“73 Furthermore, the measure cannot be regarded as unduly prejudicing the legitimate claims of workers subject to compulsory retirement because they have reached the age-limit provided for; the relevant legislation is not based only on a specific age, but also takes account of the fact that the persons concerned are entitled to financial compensation by way of a retirement pension at the end of their working life, such as that provided for by the national legislation at issue in the main proceedings, the level of which cannot be regarded as unreasonable.”

“74 Moreover, the relevant national legislation allows the social partners to opt, by way of collective agreements – and therefore with considerable flexibility – for application of the compulsory retirement mechanism so that due account may be taken not only of the overall situation in the labour market concerned, but also of the specific features of the jobs in question.”

The last paragraph above is particularly relevant as it replicates the joint process of increasing the mandatory retirement age for Retained Firefighters. Regrettably, no joint process or consideration occurred on this occasion, or even individually for the complainant.

Adjudication Decision ADJ-00050118

The respondent relies on the above decision which found that a ‘Retained Firefighter’ was not discriminated against on age grounds. I have reviewed that complaint which was received by the WRC on 13th February 2024. That complaint differs from this complaint. I had documentation and supplementary submissions available from August 2023 up to the Circular of 3rd May 2024. The documentation over this period was not available in ADJ-00050118 as in this case. This documentation assisted on whether appropriate considerations were given to the means under which the age would be extended.

Conclusion

In summary, there is no evidence that appropriate and necessary means were considered, even though the norm was to do so. I am conscious of Paragraph 104 of Mallon on the margin of appreciation to be afforded to the appropriate authority. Nevertheless, I view the lack of consideration of any appropriate means as unreasonable. The complainant was left in limbo with no consideration on his extension request, either nationally or locally. The norm for Retained Firefighters was that on at least two previous occasions, extensions were granted without the requirement for a Circular of implementation. These circumstances differed from the Revenue case referred to earlier.

For the reasons outlined above, I find that section 34 (4) which allows for an exception to discriminate on age, has not been complied with. The respondent has not provided evidence that the means of achieving the legitimate aim were appropriate and necessary. As on the previous occasions when the age increased, there was no lead-in period considered. There was no interim extension of his contract considered. Also, there was no consideration to facilitate his return or apply the circular retrospectively once the Circular issued.

I find that the complainant was discriminated against on age grounds.

Redress

In considering redress, one of the options is to order re-instatement or re-engagement with or without compensation. I would have considered re-instatement as the complainant appears to be fit and healthy and could work up to his 62nd birthday. The complainant though has sought compensation.

Therefore, section 82 (1) (c) of the Act requires that I consider the effects of the discrimination. In a recent decision Aer Lingus Social Athletic Association v. Mary Gavin, EDA2312, the Labour Court increased the compensation award of the Adjudication Officer to €30,000 on account of the significant effects on not being retained in her job. Similarly, in this case, the same issues are at play, as the complainant had to leave when fit and healthy at 60 years of age. There was an opportunity for the respondent to review matters at the beginning of May 2024 when the circular issued, which was not taken up.

The complainant has been in the service since 2008. As it is a community-based emergency service, and he is required to be residing nearby, he is likely to be well known within the community. Given the manner of his unreasonable exit from the service, it most likely had a significant effect on him.

For the reasons outlined, I decide that the respondent should pay compensation of €9,500 to the complainant.

I find that the complainant was discriminated against on age grounds. As redress, I decide the respondent should pay compensation of €9,500 to the complainant. This award is compensation and is not in the nature of remuneration.

Mandatory Retirement Age; Discrimination; Age; Employment Equality Acts 1998-2015