Complainant

Respondent

Parties

Denise Murphy

Royal College Of Surgeons in Ireland

Representatives

John Cleary

SIPTU

Cian Beecher Solr.,

Melissa O’Sullivan Solr.,

Arthur Cox Solicitors.

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-00057786-001

19/07/2023

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

CA-00057786-002

19/07/2023

This hearing was conducted in person over two days in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

I informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and where there is potential for a serious and/or direct conflict in evidence between the parties to a complaint, then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Affirmation as appropriate and in order that matters might progress. It is noted that the giving of false statement or evidence is an offence.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 19th of July 2023. In the first instance I am therefore looking for discriminatory acts in the six-month cognizable period starting on the 20th of January 2023.

The Complainant was fully represented by her SIPTU Union representative. When it came time to hear the Complainant’s evidence, the Complainant agreed to make an affirmation to tell the truth.  I was provided with two comprehensive submissions in the course of the hearing. The first submission is dated the 16th of May 2024 and came with a book of authorities and appendices. The second submission is dated the 28th of January 2025 and is a reply to the Respondent supplemental submission. The Complainant additionally relied on the original submission outlined in the Workplace Relations Complaint Form.  I was provided with supplemental documentary evidence and caselaw in support of the Complainant’s case. No objection was raised to any of the materials relied upon by the Complainant in making her case. The Evidence adduced by the Complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that she was discriminated against on the grounds of her age when she was, she says, made to retire from her position with the Respondent company by reason of a retirement age policy which operated in the Respondent workplace.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent had representation at this hearing. To give workplace context, the Respondent entity was represented by a number of witnesses including CB the Senior HR Partner and BH the Director of HR. The Respondent provided me with two written submissions. The first is dated the 27th of May 2024 and the second supplementary submission dated the 24th of January 2025.

No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation.  The Respondent witnesses were challenged as appropriate by the Complainant representative.  

The Respondent rejects that there has been any discrimination and asserts it is objectively justified in having, and the implementing, an age-related retirement policy.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered the evidence adduced in the course of two days of hearing. After a short period of temporary employment, the Complainant was offered a contract of indefinite duration with the Respondent entity commencing in May of 2012. The Complainant was engaged as a secretary to the Department of Pathology. The Complainant was allowed to skip the probationary period based on her previous performance.

It is worth noting that at the commencement of the Complainant’s employment, the contract of employment very clearly stipulated that the normal retirement age would be the Complainant’s 65th birthday.

It is also worth noting that there was a well-advertised and formal in-house policy in operation for the duration of the Complainant’s employment which sought to set out the reasons or justifications for imposing a retirement age as follows:-

All RCSI employment contracts state the Normal Retirement Age for staff is 65. The objective justifications for RCSI setting the Normal Retirement Age at 65 includes, but is not limited to, the following:

• Alignment to the retirement age set out in all RCSI employment contracts.

• Ensuring inter-generational fairness within RCSI.

• Contributing to the ongoing motivation and dynamism amongst RCSI staff by using available vacancies created by retirement as an internal promotional opportunity.

• Ensuring motivation and dynamism through increased prospects of promotion.

• Enabling better planning and management of RCSIs pension provisions.

• Creating certainty around manpower planning.

• Protecting the dignity at work for employees.

The age of retirement for RCSI staff is not linked to the state pension age which is currently set at 66 years of age.

In the Complainant’s case the date of her 65th birthday was the 24th of February 2022.

The Complainant did not want to retire. She felt she was still fit and able and was concerned that the drop-off in income would negatively impact her. The Complainant gave evidence that she did not have a generous pension to look forward to as the Complainant had stepped back from the workplace for a twenty-year period. The Complainant confirmed in cross examination that she had always been aware of the fact of the retirement age policy in this workplace. The Complainant discussed the impending retirement with the Head of the Department- Professor SG - who in turn contacted her Manager - Professor A. As a result of this intervention, the Complainant was offered a one-year extension which she was delighted to accept. I note that the Department was going through some material changes so that the retention of the Complainant’s capabilities was considered advantageous to the Department.

In fact, it has been pointed out to me that the same in-house policy already referenced above allowed for extensions such as the one implemented in the Complainant’s favour. Within the policy it says:

In exceptional circumstances RCSI reserves the right to engage with employees, if agreeable, post-retirement age. This will be done on a case-by-case basis, subject to business needs and each case will be objectively justified on its own merits. The furtherance of the employment relationship will be subject to the terms and conditions as set out in the contract for which the post-retirement age engagement is required and agreed. Any contracts issued to staff employed beyond 65 will be temporary, time bound, subject to specific objective justification and will note the changes in eligibility to staff benefits, including, pension provision and insurance cover.

All staff have the right to retire at 65. Subject to agreement by both parties, RCSI continues to reserve the right to retain the services of strategically important employees and retain the expertise of experienced staff in specialist roles e.g. Surgeon Prosectors. The extension of these roles will be objectively justified.

It is clear from the paperwork provided that a vigorous case was made by Professor SG to retain the Complainant in her Department. The justification for an extension of the contractual relationship was expressed as follows:

Denise Murphy is a trusted longstanding staff member who has excellent pre-existing relationships with all staff in the department. This helps enormously to ensure that changes are well managed by an experienced administrator and trusted colleague. Her assistance and experience with current and legacy matters, have been crucial to the ongoing successful start-up of the new Head of Department. Denise’s experience allows the Head of Department to focus on leading the Pathology team after a period of extensive transition. Examples of this are Denise’s familiarity with detail and background required by Legal, Finance Department, Human Resources Department in RCSI and the Histopathology Department in Beaumont Hospital.

Denise is relied on greatly for her experience and unique familiarity with RCSI and, in particular, her knowledge of the Department of Pathology, ongoing processes, and the many people associated with it.

The final proposal was

To extend Denise’s contract, past her retirement date, for one year on a fixed term contract. Existing salary.

It is clear therefore that Professor SG was not advocating for an open-ended contract of employment and this fact was confirmed by way of the noted intention to set about succession planning as follows:

The plan with regard to succession, is to define and advertise Denise’s replacement post which will require careful selection of expertise and training. The Head of Department will closely assess and manage all affordable options so that a smooth transition and training will fully take place in early 2023. The necessary systems are now in place and Denise will fully oversee the data and skills transfer for her replacement – ahead of the end of her extended contract.

It is clear from the contemporaneous correspondence that this was seen as an exceptional one-year fixed-term extension to the Complainant’s employment. The one-year extension was deemed to be objectively justified based on it’s own merits and to implement succession. It was therefore in line with the Respondents own retirement age policy.

The Complainant signed a new contract of employment on the 25th of February 2022, just after her 65th birthday. The terms of the contract were not negotiated with the Complainant. The Complainant did not seek nor was she advised to seek legal or Union advice concerning this new contract. I am however, satisfied that the Complainant knew that she was on a fixed term contract of employment that would last for one year and that the expectation was that her replacement would be recruited in the course of that year and the Complainant would be actively involved in the recruitment process.

The new contract very clearly sets out:

The objective justification for the issuance of a fixed-term rather than a contract of indefinite duration is that this is an exceptional post-retirement one-year fixed term contract to support the department of Pathology. You have also been awarded a fixed-term contract on the basis that the College operates a normal retirement age for a number of very important reasons as set out in the College’s Retirement Policy. Having regard for your specific role which is of importance to the College, it is the policy of the College to ensure intergenerational fairness to allow for promotion and progression contributing to workplace diversity….

The Complainant worked on for the final year. I note that the Employer stuck to it’s in house policy of not making pension contributions for this year of employment post 65 years of age. In November of 2022 the Complainant saw that her post was being advertised and was thereafter involved in the training up of her replacement. In December of 2022 the Complainant commenced the task of filling out the forms associated with her upcoming retirement.  The Complainant gave evidence that she was once again extremely upset and emotional at the prospect of being forced to retire as she put it. The Complainant reached out to the Senior HR Partner CB who confirmed that there would be no further extensions as the twelve-month contract already received had been in response to exceptional situation which no longer pertained. The Complainant’s replacement had by now been sourced and had been fully trained up.

The Complainant did contact her Union representative, but the Complainant’s retirement was proceeded with, and the Complainant was officially retired on the 23rd of February 2023.

The Complainant gave evidence that she really missed the workplace and that even though she returns on a casual basis as an invigilator, it is not the same as being a permanent and valued member of staff.

The Complainant issued the within complaint on the 19th of July 2023 some five months after the termination of her employment.

I understand that in the intervening period the Complainant became aware that there were, in fact, many other members of staff who had been retained after the age of 66. The exceptional nature of her own one-year extension felt, to her, somewhat watered down when she learned that many others had also had their contracts extended. In fact, the Respondent has conceded that up to 27 persons on their staff had been retained beyond the age of 66. However, it is claimed by the Respondent that these positions were all technical and academic in nature and it is asserted that replacement of such roles is very difficult. At the heart of the justification is the unavoidable fact that this is an institute of learning where the very survival and flourishment is predicated on reputation and a high standard of academia coupled with research and development.

The Respondent has consistently maintained that it is fully entitled to have a retirement policy and that this can be based on age. The Respondent has purposefully retained the age of 65 despite a general trend towards 66 in line with the state pension age. The Respondent asserts that it has provided a meaningful objective justification (including intergenerational fairness) which allows it to implement this policy across the board.

The Respondent further notes that the Complainant fully accepted the terms of the fixed term Contract which was provided to her on the occasion of her 65th birthday. This contract had been acquired on foot of a business case made by the Complainant’s management and was only ever requested to be for one year with an express duty on the Complainant to be involved in the  retention of and settling in of the Complainant’s own replacement. To this end, it was suggested that this was both a fixed term and a fixed purpose contract. The Respondent asked that I, as Adjudicator, should note that the Complainant did not compete for this job when advertised.

Evidence was provided by Senior HR Partner CB in this regard. She stated that the retirement policy allows the Respondent to avoid stagnation, to plan ahead and create certainty around employment including promotion and opportunity. The aim is to promote from within and recruit from without. It’s a policy of renew and refresh she said.

CB conceded that there were instances where certain key members of staff were retained beyond the age of 65 because their expertise, specialisation and educational competence in their own fields was impossible to readily replace. There are, it seems, up to three members of the HR team constantly scouting for appropriate talent at home and abroad.  Generally, she said, administrative roles are not extended out as these roles are not as difficult to fill.  There are up to 1200 members of staff across the Respondent and of these 27 are (as of the date of the hearing) retained over the age of 65. CB noted that there is a lead in time of up to two years to consider the replacement of those members of staff that were going to be more difficult to replace. The priority for everyone is to ensure the highest possible standards to attract a strong calibre of potential students. The Respondent entity has achieved an exceptional international reputation to be maintained. CB confirmed that even those that had been allowed to stay on beyond 65 have to be replaced and there is ongoing recruitment in this regard.

CB said that the Complainant was instrumental in the implementation of the succession plan for her own position. The Complainant assisted CB with the role title and the description of the core tasks. The Complainant never once, she noted, made complaint about the fact that the process of replacing her was being engaged in. There was no grievance raised

The Director of HR Mr. BH also gave evidence on behalf of the Respondent. He confirmed for example that there was an 82-year-old geneticist on the team who was quite simply irreplaceable. He justified the seeming favouring of retaining clinical staff as against the rank and file by stating that the Respondent is first and foremost an academic and research institute competing, for recognition amongst potential students, with publicly funded 3rd level institutes. The requirement is to remain lean and dynamic and competitive. He confirmed that the 65 policy applies to the clinical and teaching staff in the first instance, there is however more clear-cut justification for extending contracts across the latter cohort. These are exceptions that do not impinge upon the overall workability and implementation of the retirement policy.

 BH noted that the Respondent could not adopt the retirement age of 70 which is now commonplace per the public service. The Respondent is a private commercial enterprise and cannot be expected to immediately adopt the policies of a public service provider. The Respondent has other considerations to weigh up and in particular where it cannot rely on Government subvention.

The Complainant expressed a reluctance to retire in the weeks up to her acknowledged retirement date of the 24th of February 2023. By way of response the Complainant was advised that the normal retirement policy continued to be implemented as an individual reached the age of 65 and that the Complainant had been allowed continue for one year in the exceptional circumstances outlined the previous year.

In the first instance I must consider whether the termination of the Complainant’s employment in February of 2023 amounted to a discriminatory dismissal based on age or whether it was simply the expiration of a fixed-term Contract and therefore was a termination which came into effect by operation of the law of Contract. On balance, I am satisfied that the latter scenario is the correct one. The parties freely entered into a one-year contractual arrangement which had the fixed purpose of ensuring that the Complainant’s replacement would be found and to ensure the ongoing smooth running of the Pathology Department. The termination of the one-year contract was not related to any personal characteristic of the Complainant’s.

However, I have to agree that the Complainant has identified a workplace policy which Prima Facie, or on the face of it, does appear to be a discriminatory one. The implementation of a retirement policy based on age is no longer the norm, and it is not unreasonable that the Complainant would look for some sort of independent scrutiny of the policy which has seemingly brought about the end of a much-valued employment. The said policy, I am satisfied, was ultimately the real reason for the termination of her employment in February of 2023. In making this point, I am finding that the last act of allowing the Complainant’s employment to be terminated by reason of her having achieved the age of 65 falls within the six-month period prior to the issuing of the workplace relations complaint form.

I have in the course of the hearing had Section 34(4) of the Employment Equality Act opened to me and which provides as follows:

“Without prejudice ….., 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)                (ii) the means achieving that aim are appropriate and necessary”.

The Respondent has consistently argued that it is entitled and indeed, given the size of it’s workforce, to impose an upper age limit for retirement. The Respondent has clearly set out a reasonable and objective justification for having a retirement age. This is set in the policy aforesaid and, in effect, allows for competition, diversity and promotion. The Respondent has set out in its (para 4.4) submission it’s contention that:

The Court of Justice of the European Union and the Irish courts have expressly addressed the issue of mandatory retirement ages and, in particular, have upheld the validity of a retirement age of 65 where the employer can demonstrate legitimate objective grounds justifying the imposition of retirement ages. It is beyond dispute that mandatory retirement ages remain lawful and prevalent and necessary features of the employment environment….

Having a normal retirement age of 65 ensures that there is intergenerational fairness, allows for promotion and progression and contributes to workplace diversity and is wholly aligned with the existing EU and Irish jurisprudence.

I have carefully considered the caselaw referenced by the Respondent and am satisfied that no argument on the part of the Complainant displaces the findings set out in the recent case of Mallon v The Minister for Justice, Ireland and the Attorney General wherein the Supreme Court stated:

“It is not the case that the Directive presumptively requires case by case or role by role assessment or that such individual assessment must be shown to be impractical if a generally applicable retirement age is to be justified. Provided that the aim sought is legitimate and the means of achieving that aim are “appropriate and necessary” (proportionate), a mandatory retirement rule does not offend the prohibition on age discrimination in the Directive, notwithstanding that it does not entail an individual assessment of those subject to that rule”

I recognise the upset experienced by the Complainant and regret that I can give no comfort to her. I am on balance, satisfied that the Respondent has not acted in an unlawful or discriminatory way. Having been given the opportunity to look at and assess the objective justification provided by the Respondent, I am satisfied that the Respondent works within the law by operating a mandatory retirement age.

The Complainant sought to establish that the Respondent’s implementation of the said retirement policy was potentially selective (and therefore discriminatory) and pointed to the swath of persons in this workplace above the age of 65.  However, I am not persuaded that the fact that there are derogations (and admittedly quite a number of them) from the implementation of this retirement  policy serves to de-legitimise or undermine the retirement policy. The Respondent has to ensure that it does not lose specialist skills and technical know-how and must retain some select staff who cannot be easily replaced.

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

CA-00057786-001 –  The Complainant has not established that she was discriminated against on the grounds of her age when her employment came to an end when she attained the age of 65. The complaint herein fails.

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

CA-00057786-002 – The Complainant has not established that that she was dismissed for discriminatory reasons or for opposing discrimination and the complaint herein fails.