Complainant

Respondent

Parties

Denis  Hackett

Galway County Council

Complainant

Respondent

Anonymised Parties

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Representatives

Marie O Connor SIPTU

Keith Irvine Local Government Management Agency (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-00060826-001

04/01/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant was employed by the respondent as a retained firefighter from 13 April 2007 until his employment was terminated on 16 October 2023.

The complainant and two witnesses for the respondent undertook to give their evidence under affirmation.  Cross examination of the witnesses was facilitated.  Only limited oral evidence was given by the witnesses as the facts were not in contention.

The complainant outlined the history of a mandatory retirement age for Firefighters.

In 1985, a compulsory retirement age of 55 years for Retained Firefighters was introduced at national level as a result of a lengthy negotiation process engaged in by the then LGMSB representing local authority managers and trade unions representing the Retained Firefighters. This arose from a Labour Court Recommendation on phasing in, over a two-year period, of a compulsory retirement age of 55 years and a scheme of retirement gratuities.

In 2002, the union brought a further claim for an increase in the retirement age and an increase in the gratuity.  A recommendation issued in August 2002 provided for an Expert Group to be established to review the claim.

In April 2003, an Expert Group was tasked with considering the mandatory retirement age and determined that it should increase from 55 to 58 years of age and outlined how this change should be implemented.

In November 2003, Circular Letter LG(P) 19/03 issued which contained the findings of the Expert Group Report. There was no implementation date as the uniform extension period was in place, and the Circular confirmed the arrangements already in place.

The process for extensions required medical reports for each year from 55 years of age onwards. An Occupational Health Specialist was a member of the Expert Group along with management and trade union nominees. The Expert Group identified and examined occupational health studies concerning Firefighters.

On 31st January 2020, a WRC Agreement was reached which allowed for a further extension, it proposed that the existing provisions for retirement age for Retained Firefighters be amended to increase the existing option to extend from age 58 to age 60.  It also noted that the mechanism of the retirement scheme as it currently applies will remain unchanged.

The complainant submitted that various local authorities introduced schemes which demonstrated the arbitrary of the situation relating to retained firefighters

The complainant submitted that the employment history within the respondent local authority is inconsistent.  A firefighter in one particular station was allowed to remain on past his 60th birthday contrary to what is outlined in the circular, for six months.  Additionally, it was suggested that a full-time firefighter in another station is 63 but remains in service.  It was noted that there is an ongoing recruitment crisis in the retained firefighter service.  This, according to the complainant, serves to demonstrate the lack of objective justification in the respondent’s adoption of a compulsory retirement age.

From 2017, the complainant repeatedly sought and was granted annual extensions of his contract.  However, from 2023 the complainant was refused another extension.  No reference was made to the fact that another firefighter was retained beyond this 60th birthday.  The respondent did not accept that it was acting in a discriminatory manner.

The complainant noted Section 34(4) of the Act, the 2018 IHREC Guidelines on Retirement and Fixed Term Contracts and the Industrial Relations Act, 1990 (Code of Practice on Longer Working) (Declarations) Order 2017 (SI 600/2017).  The complainant submitted that the respondent has failed to set out their legitimate aim in retiring retained firefighters.

The complainant cited the following cases in support of his complaint: Seldon v Clarkson Wright & Jakes ([2012] I.C.R 716; Donnelan v Minister for Justice and Law Reform and Others [2008] IEHC 467; Case C-447/08, Prigge v Deuthshe Lufthansa [2011] E.C.R. i-8003; Thomas Doolin and Eir Business Eircom Limited ADJ-45261; Patrick O’Callaghan and Ferrero Ireland Ltd ADJ-43459; and Beirne v Rosderra Irish Meats Group ADJ-27036.

The complainant gave evidence that the station to which he was assigned did not have sufficient manpower to safely run a rig.  This was not contested.

The respondent submitted that its position is that the complainant’s retirement date of 16 October 2023 was set in accordance with the normal retirement age for Retained Fire-fighters employed by the respondent and retained firefighters nationally. This was following a request by the claimant to remain on past this retirement date and a decision by the Council not to allow this

The retirement age for retained firefighters is well established and the respondent acted in accordance with same. 60 is now the established retirement age for firefighters at all grades and for retained firefighters nationally.

The respondent submitted an overview of some of the important historical developments relating to the retirement ages of firefighters and retained firefighters.  In 1985, a compulsory retirement age of 55 years for retained firefighters was introduced at national level as a result of a lengthy negotiation process engaged in by the then Local Government Management Services Board representing local authority managers and the trade unions representing the retained firefighters. This national measure came about following Labour Court Recommendation 9605 (March 1985), which recommended the phasing in, over a two-year period, of a compulsory retirement age of 55 years and a scheme of retirement gratuities.

In 2002 the issue of retirement age for retained firefighters was the subject of a referral to the Labour Court. In its submission to the Court SIPTU sought an increase from the current retirement age of 55 to 60. In its recommendation LCR17223 of August 2002 the Court recommended: “that the need to maintain a blanket retirement age of 55 from a health and safety perspective should be objectively assessed by the parties with the assistance of suitable experts”.  This provided for the establishment of an Expert Group to carry out a review of the retirement age for all grades of the retained Fire Service. The agreement advised at section 5 “that in the event of no agreement being reached in either group the Chairman of that group shall issue findings in respect of that group which will be binding on the parties and will have to be accepted and implemented by both the LGMSB and the trade unions.

The Report of the Expert Group on Retirement Age was the subject of a circular letter from the Department of the Environment Heritage and Local Government dated the 24th November LG (P) 19/03, confirming the outcome of the Expert Group and advising that the findings of both Reports are binding on all local authorities and on Retained Fire-fighters. In early 2020, the Workplace Relations Commission recommended that the existing provisions for the retirement age of retained firefighters should be amended to change the existing provision for an annual extension from 58 years to 60 years. In deference to this recommendation, on 8 December 2020 and on an interim basis pending consideration of legislative amendments, Circular LG(P) 02/2020 was issued which provided that retained firefighters could now continue working until reaching the age of 60 years, subject to annual compulsory assessment under the Occupational Health Scheme.

The respondent submitted that certain professions in Ireland have a statutory retirement age, meaning the retirement age is legally defined. These services include An Garda Síochána members, Prison Officers, Defence forces and Fire Services. Retained firefighters can extend retirement to age 60, subject to a medical assessment and formal process. The respondent accept that the Government have recently announced its intention to review the retirement age for these specific services, however until the necessary legislative changes are made the existing retirement ages remain unchanged.

As provided for in the report of the Expert Group and Circular LG(P) 02/2020, the complainant has applied for was approved for 3 extensions beyond the age of 55 in 2018, 2019, 2020 respectively. On each occasion he confirmed that he read the 2003 report of the expert group on retirement age and was applying for the extension of his employment as a retained firefighter subject to the provisions contained in the report. The complainant further confirmed that he accepted that the extension would be for a maximum period of 12 months and was subject to occupational health tests.

The respondent submitted that as provided for in the WRC Agreement, the complainant has applied for and been approved for 2 extensions beyond the age of 58 in 2021 and 2022 respectively. These were one-year fixed term contracts the second of which clearly states that the contract will end on the 16 October 2023.

The complainant confirmed that he applied for an extension subject to the provisions of the Report and has accepted that no extension can be provided beyond the age of 60. In signing this document, he is confirming his agreement to the provisions of the Report and the Circular letter, and this agreement is binding on him.  The claimant has on the basis of agreement entered into by his union and the LGMA on behalf of the sector, been afforded an extension to age 60.

The respondent submitted that the Adjudicator can only find that these agreements are either binding or not binding on the claimant. If it is found to be not binding this would go against the fundamentals of the agreement and therefore it would have to be assumed that the agreement is therefore void and the respective positions of both parties reverts to the status quo prior to its implementation which is a retirement age of 55 as provided for in his original contract. The claimant should therefore have retired in accordance the provisions of the terms of his contract of employment which was 55.

The respondent noted that it had, for reference purposes, reviewed all retirements of retained firefighters for the past decade and no firefighter at any grade has remained in employment beyond the age of 60.

The respondent submitted that although not was stated his complaint, but based on previous correspondence, it is believed the complainant will seek to rely on the fact that an individual firefighter employed by the respondent retired at age 60 from the Council and was subsequently provided with a short-term fixed term contract for a period of 6 months; that person retired at age 60, was provided with his pension entitlements. This was a single shortterm contract issued to a sole firefighter above the age of 60 and reflected exceptional circumstances as a result of matters arising from industrial action by SIPTU in 2023. This firefighter retired at age 60 and no firefighter has worked beyond that age. The short-term contract extension was for six months, and that firefighter left upon expiry of that contract (still at age 60).

On the 22nd of May 2023 the respondent were advised by SIPTU of its intention to commence industrial action and further advised by SIPTU on 20th June of the escalation of industrial action. In the course of this dispute Local Authorities had to ensure that contingencies were in place to ensure the essential emergency services were in place and meet its obligations under the Fire Services Act 1981. In one particular station in the region because of staffing levels and an imminent retirement in the course of the industrial action the respondent took the decision to extend an individual’s retirement date for a maximum period of six months to ensure that it was in a position to provide emergency cover across this period of industrial action. The respondent is satisfied that this decision was absolutely critical to ensure the continuity of a life protection service in the course of an industrial dispute. The respondent believes that the complainant and his representatives placing reliance on this individual arrangement in the course of an industrial dispute is ill founded.

The respondent is satisfied that the setting of the retirement age of 60 for retained firefighters is appropriate. Section 6(1) of the Employment Equality Acts 1998 and 2004 (the Act) provides, in relevant part, as follows: - ‘‘(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,”

The respondent noted that although this claim is pursued under the Employment Equality Acts, these have their foundation under Article 13 EC Treaty and adopted Directive 2000/78/EC.  Directive 2000/78 includes in its Preamble a number of recitals which are of relevance in the matter. 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.”

The respondent suggested that Article 4(1) of that Directive Article 2(2) of Council Directive 2000/78, read together with Article 6 (1) of the Directive, must be interpreted as not precluding legislation, such as that at issue in this complaint that firefighters should retire at a maximum age of 60. Article 4(1) of the Directive provides as follows: "Notwithstanding Article 2(1)and 2(2),Member States may provide that a difference in treatment which is based on a characteristic referred to in Article 1 shall not constitute discrimination where, by 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) of the Directive 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.  Therefore, it is the position of the respondent that a difference in treatment which is based on the nature of particular occupational activities or the context in which they are carried out will not constitute discrimination.

The respondent noted Section 34 of the Employment Equality Act provides for certain savings and exceptions relating to the family, age and disability grounds. Subsection (4) of that Section provides: - (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.

The respondent submitted that the establishment of a specific retirement age for fire-fighters is objectively justified by reference to a legitimate aim and the means used were appropriate and reasonable and therefore not contrary to Section 34(4) of the Employment Equality Acts which allows the respondent to fix a retirement age without contravening the prohibition of discrimination on grounds of age. This position is supported by the decisions in Donnellan v Minister for Justice, Equality and Law Reform [2008] IEHC 467 and Saunders -v- CHC Ireland Limited DEC- E2011-142

The respondent note that it is satisfied that the setting of a maximum retirement age of 60 is legitimate as it was to ensure the 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. The respondent is satisfied that there are characteristics related to that ground which constitute a genuine and determining occupational requirement as it relates to the role of firefighter. It is accepted as a matter of fact that physical capacities naturally diminish with age and as an employer it must consider age as an essential characteristic of the proper exercise of physical capacities of a firefighter to undertake the role.

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. 

The respondent cited a number of case in support of its position:  Wolf -v- Stadt Frankfurt am Main C-229/08; Palacios de la Villa v Cortefiel Servicios SA, Case C-411/05; Saunders v CHC Ireland Ltd DEC-E2011-142

A witness for the respondent noted that the suggestion of risk to the public was dealt with by the recruitment of additional staff.  Under cross examination it was confirmed that one staff member was given an extension due to Health and Safety concerns and that the exceptional nature of the extension in that case was reflected in the contract given to that individual.

The submissions put forward by both parties are consistent with one another and recount the history of the retirement ages for firefighters and retained firefighters. They do not give rise to any difference of opinion. This case essentially turns on whether there was justification for the retirement age and whether the retirement age was departed from in any circumstance. Both of the parties referred to section 34(4) of the Act in their submissions. Section 34(4) of the act states as follows:

(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 issue of objective justification for retirement ages is considered by both parties and the need for objective justification has been outlined by both parties in some detail. In addition, both the respondent and the complainant through their various representative organisations have engaged with the industrial relations machinery of the state and are bound by recommendations of the expert group formed to consider this issue amongst other matters.

I am satisfied that the issue of objective justification has been thoroughly explored throughout the industrial relations history recounted by both parties and by the various decisions and recommendations handed down by way of resolution to various stages of the historical interactions between Local Authorities and employee representative organisaions. Accordingly, I am not proposing to revisit or reopen the matters raised by the Labour Court, or by the Expert Group convened for the purposes of considering various matters concerning firefighters, including retained fire fighters.  However, I am satisfied that the issue of objective justification has been considered and, more importantly, has been the subject of agreements between the parties.

There remains one issue to be considered and that is whether the respondent was consistent in the implementation of the established retirement age.  It is accepted by both parties that the respondent varied its retirement age in one case. The complainant noted that colleague was kept on for six months after his 60th birthday. However, the respondent noted that the need to retain this person arose out of industrial action taken by the complainant’s representative organisation. It noted that this was one exception to take account of industrial action, that it was limited to 6 months and that the colleague who was allowed to remain retired aged 60.

Having regard to all of the matters presented to me, I am satisfied that the respondent derogated from the retirement age only on that one occasion, and it was necessitated by the need for contingency planning to cater for the industrial action being pursued by the complainants representative organisation. In the circumstances I am satisfied that this limited variance from the retirement age was justified in the circumstances. The respondent operated under the system in place at the time of the complainant’s retirement and the legitimate aims underlying the need for retirements at age 60 was laid down as a result of a procedure agreed by the parties in the course of their industrial relations agreements. That the age of 60 was arrived at by an expert group convened for that purpose is very persuasive in this regard.

The burden of proof is dealt with in Section 85A the Act and states as follows:

85A.—(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.

Having regard to the written and oral evidence presented in relation to this matter I am not satisfied that the complainant has established facts from which it may be inferred that the Act has been contravened. Accordingly, I find that the complainant was not discriminated against.

Having regard to all the oral and written evidence presented in relation to this matter, my decision is that the complainant was not discriminated against.

Employment Equality – Section 34(4) Age Discrimination – objective justification – Act not contravened.