Complainant

Respondent

Parties

Patrick  Donnellan

Eircom Limited

Representatives

Eoin Clifford SC and Lorna Madden BL instructed by Lavelle Partners

Peter Ward SC and Morgane Conaty BL instructed by Arthur Cox LLP

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-00063476-001

15/05/2024

The Complainant swore an affirmation. Two witnesses, former colleagues of the Complainant Mr. Dermot Hayne and Mr. Willie Pine swore an Oath.

For the Respondent, Ms Úna Stafford, Managing Director, Open Eir Networks and Ms Sandra Donohue, Chief People Officer, swore an Oath. Submissions were received on 5 November 2024 with a Supplementary Submission received on 2 January 2025.

From the outset the Respondent accepted the Complainant had a prima facia complaint of discrimination, but the Respondent had a lawful retirement age.

The Respondent also acknowledged the Complainant’s lifetime of exemplary service to the Respondent.

It was the Complainant’s evidence began his employment with the Department of Posts and Telegraphs on 7 August 1979, which was later transferred to Telecom Éireann in 1983, and subsequently to Eircom. He received a contract of employment but did not specify a retirement age. The contract made reference to the age of 65 years in terms of the receipt of the pension but there was no requirement to retire at that age. He held a PRSI Class D stamp.

He was an employed as a Field Technician for over 44 years until his retirement in April 2024 upon reaching the age of 65.

The Complainant describing loving his job and in particular the customers he encountered on a daily basis. At the time of his retirement, he had financial commitments in terms of third level education for a family member, and it did not suit him to cease working at 65 years of age.

On 24 January 2024, the Complainant sought an extension of his contract of him, but this was refused on the basis of intergenerational fairness, health and safety concerns and succession. He appealed but was unsuccessful. 

Dermot Hayes

Mr. Dermot Hayes stated that he began his employment in 1980 as a field technician, initially working in a team of up to seven men before the work became more individualised. He described how the nature of the job evolved over time, the introduction of contractors in 1984–1985 to address a backlog of work and the move from a manual role in 1980 to a more automated one. Mr. Hayes recalled that the first apprentice joined in 2011 and worked alongside experienced field technicians. He described the use of equipment such as hoists for working on poles was introduced, and he regularly had to climb poles, sometimes daily or weekly, as well as use ladders at residential properties.

In September 2024, upon turning 65, Mr. Hayes requested an extension to continue working but was not granted one, despite passing a medical assessment in August 2024. After an interview with the respondent, no extension was offered, though he was informed of a right to appeal.

In the weeks prior to the hearing, he was contacted by Defusion, a contractor for the Respondent, and after completing a training course in Dublin, he commenced employment with them, performing the same duties as before, including working with hoists and revisiting the same houses.

Under cross-examination, Mr. Hayes confirmed that his current temporary employment was due to the backlog caused by Storm Éowyn, and he was given an eight-week contract with the possibility of extension. His work included reconnecting houses and lifting heavy manholes, sometimes working alone or with local technicians. He stated he was not aware of any field technician receiving an extension longer than one year and expressed the view that people should be able to work until the age of 70.

Mr Willie Pine

Mr Pine gave evidence of his employment history and confirmed that he had received a one-page contract of employment, which did not contain a retirement age. He stated that it was much “easier” to work with fibre, describing the work as more “mechanical.” He also mentioned attending a “climbing course” a year before his retirement. He spoke positively about the standards of health and safety, noting that they had improved significantly over the years.

Mr Pine outlined the history of contractors working with the Respondent.

Regarding his application for an extension to his contract of employment, he underwent a medical examination. However, he described the refusal of the extension as a “big disappointment.” His appeal process took over two months, and he eventually had to follow up with the Respondent himself.

At the time of his retirement in June 2024, Mr Pine stated that there were over 9,000 copper faults.

Legal Submissions

The Complainant referred to the announcement of the Employment (Contractual Retirement Ages) Bill 2025. It was submitted the Complainant’s retirement age was governed by the Eircom Main Superannuation Scheme, which retained its special status due to his prior employment as a civil servant. It was further submitted that the Public Service Superannuation (Miscellaneous Provisions) Act 2004, as amended, had the effect of modifying the scheme such that the Complainant was only required to retire upon reaching the age of 70. Secondly, the reasons relied upon by the Respondent to justify the Complainant’s retirement did not pursue a legitimate aim and/or that the means employed to achieve that aim were not appropriate or necessary.

Caselaw relied upon by the Complainant including, Mallon v. The Minister for Justice, Ireland and the Attorney General [2024] IESC 20, Fuchs & Kohler Case C 160/10, EU v Hungary Case C 286/12 and Age Concern England C 388/07. In addition, CSO figures on life expectancy of July 2020 were produced.

Ms Úna Stafford

Ms Stafford outlined her career history and her current role as Managing Director of Open Eir Networks, where approximately 70% of the 900 staff, approximately 700 individuals, are employed as Field Technicians. These technicians are responsible for service assurance, including daily and weekly fault repairs on the network. She described how the work has evolved, noting that while technicians still climb poles, a portion of the work is now automated using specialised devices. The fibre network, she explained, is significantly more reliable than the older copper network, resulting in approximately 60% fewer faults.

Ms Stafford gave evidence that the company’s defined benefit pension scheme has historically been drawn down at age 65, a practice dating back to the Department of Post and Telegraphs. It was her evidence that retirement at 65 years. is both custom and practice across the organisation. She noted that 60% of field technicians are currently over the age of 60.

While employees may choose to retire between ages 60 and 65, the defined benefit pension becomes available after 40 years of service. She explained that the Complainant’s Class D PRSI stamp does not entitle him to a statutory old age pension, and therefore, there was no disadvantage to remaining employed beyond age 65.

Ms Stafford stated that the retirement policy was reviewed in 2020 following external benchmarking and union engagement, and that it was communicated via the internal intranet. She described the field technician role as “safety-critical,” involving work at height, climbing ladders fixed to safety poles, using safety harnesses, working alone or with others, and performing physically demanding tasks outdoors in all weather conditions. Daily risk assessments and comprehensive health and safety guidelines are in place.

She outlined the details of the Respondent’s two-year apprentice training programme.

 She explained the rationale behind the retirement age of 65, citing succession planning, career progression, headcount management, and the need to maintain an age-balanced workforce. With many technicians’ nearing retirement, the Respondent aimed to avoid a sudden loss of skilled staff. Ms Stafford also referenced operational demands, such as fault repair timelines of 2, 5, or 10 days, which, if unmet, could result in penalties.

Regarding contractors, she stated that their use was limited and short-term, particularly following Storm Éowyn, which she described as the most significant storm in 30 to 40 years. Contracts were typically no longer than six to seven weeks and reviewed weekly.

In conclusion, Ms Stafford emphasised that there was no issue with the Complainant’s work or work ethic throughout his employment.

Ms Stafford was cross-examined regarding the headcount within the Respondent’s organisation. It was her evidence that the headcount for the Open Eir division was fixed in accordance with annual modelling requirements. She further stated that the headcount was reviewed regularly because the workload of internal staff was reduced on an annual basis. She accepted there was no documentary evidence available at the hearing on the modelling requirements.

The witness described Storm Éowyn as “exceptional” in terms of the damage caused, which required the engagement of the contractors, Defusion. She stated that the Respondent had always used contractors over the past 20 years, but the repairs were typically limited to heavy cabling and not singleton faults.

She was asked why employees were not deployed to repair the storm damage. She responded that the Respondent could not recruit people on a fixed-term contract for such a short period.

Ms Stafford gave evidence that the Respondent was building a new network, and the copper network would be turned off in five years. It was put to her that the Complainant was ideally placed to work on both the copper and fibre networks during that time. She stated that there was a significant difference between the two, particularly regarding the copper network switch-off.

A letter written by Ms Stafford was put to her, which stated that apprentices were focused on fibre as part of succession planning. She clarified that apprentices were also trained on the copper network.

Ms Stafford agreed that the Retirement Policy did not contain a provision for contract extension, nor did it reference an appeal process. It was put to her that the policy was not fixed and that there was an unwritten practice allowing for a 12-month extension.

The witness outlined the application process the Complainant underwent to seek an extension of his contract. It was her evidence that the application was considered in terms of what was best for the company, with health and safety considerations also relevant, given the safety-critical nature of the role. She submitted that the rate of absence increased with employee age and that recovery time from illness was longer.

S.I. No. 289/2024 - Electricity Supply Board (Superannuation) Order 2024 was put to Ms Stafford, which allows employees to continue working until their 68th year. It was put to her that Mr Pines would say the risks had lessened over the years due to a more mechanical approach. The witness replied that she was pleased to hear that, but accidents still happen.

Accident data was presented to the witness: 61% of the workforce is over 60 years old, with 23 people on long-term illness. Documentation was reviewed regarding the number of road traffic accidents and incidents involving slips, trips, and falls.

Other comparators were put to the witness: HSE home help assistants had no retirement age despite performing manual work with clients, and County Council workers had their retirement age increased to 70.

It was put to the witness that a more flexible policy could prevent a “cliff edge” of retirements, given the significant percentage of employees over 60. She responded that, in practice, most would not agree, as they could retire after 40 years of service and draw down their pension. It was put to her that there was no statistical evidence to support this, to which she replied that the data represented only a snapshot in time.

An employee, Michael O’Halloran, was identified as having received a fixed-term contract upon reaching the age of 65. Ms Stafford stated that his role did not require him to climb ladders.

The witness was re-examined on the retirement age under the Superannuation Pension Scheme.

Ms Sandra Donohue

It was Ms Donohue’s evidence that on 24 January 2024, the Respondent wrote to the Complainant, notifying him of his upcoming retirement on 6 April 2024, in accordance with the Respondent’s mandatory retirement age of 65. The Respondent’s Retirement Policy, which set out this retirement age, had been collectively agreed with the Communications Workers Union, the main representative body within the Respondent’s organisation.

She submitted that the Respondent’s Retirement Policy outlines a mandatory retirement age of 65 for all employees, based on legitimate business needs such as succession planning, intergenerational fairness, and maintaining age balance.

It was Ms Donoghue’s evidence on 25 January 2024; the Complainant submitted a written request to the Respondent seeking an extension to his retirement date. In accordance with the Code of Practice on Longer Working, a meeting was arranged for 4 March 2024 between the Complainant and the HR Business Partner, to discuss the request. During this meeting, the Complainant reiterated his request and highlighted personal financial considerations, including his responsibility for supporting a child in third-level education.

Subsequently, on 15 March 2024, a decision letter was issued to the Complainant, noting that factors such as intergenerational fairness, succession planning, and health and safety were directly relevant to the Complainant’s role as a Field Technician in the open eir business unit.

The Complainant appealed the Respondent’s decision on 2 April 2024, and the appeal was heard by the HR Employee Relations Manager, on 9 April 2024.

Following the meeting, the HR Employee Relations Manager issued a final decision on 24 April 2024, upholding the original decision not to extend the Complainant’s retirement.

The Complainant subsequently retired on 6 April 2024, after 44 years of service, with an annual salary of €48,463.11. Upon retirement, he received a tax-free lump sum of €68,087.34 and an annual pension of €22,695. As a Class D PRSI contributor, he was not entitled to the State Pension, and no adjustment was made to his occupational pension.

Ms Donohue outlined the succession planning in place for the Complainant’s territory, hiring one apprentice in 2023 and another in 2024 to address anticipated retirements in the Clare area. She maintained a retirement age of 65 to support intergenerational fairness, career progression, workplace diversity, and health and safety, particularly relevant in physically demanding roles like those in open Eir, where 65% of the workforce is over 60, and in Clare, 88% are over 60. Ms Donohue stated the Respondent also committed to eliminating the Gender Pay Gap by 2030.

Legal Submission

In response to the Complainant’s submission that his retirement age should be governed by the Eircom Main Superannuation Scheme 1988, which he claimed was a public service pension scheme subject to the Public Service Superannuation (Miscellaneous Provisions) Act 2004, thereby entitling him to retire at age 70. In response, the Respondent submitted that the Complainant’s retirement age was contractually set at 65 under both his employment contract and the company’s Retirement Policy. The Respondent further stated that the pension scheme explicitly prohibits membership beyond age 65 and that the 2004 Act applies only to public servants, which the Complainant is not. Therefore, the Complainant cannot rely on the 2004 Act to extend his retirement age, and his pension does not qualify as a public service pension scheme under that legislation.

In conclusion, the aims pursued by the Respondent in making the decision complained of by the Complainant were legitimate aims that were objectively justified and were appropriate and necessary.

The Respondent submitted that the legal framework governing age discrimination is set out in Council Directive 2000/78/EC (the “Directive”), the Employment Equality Act 1998–2015 (the “1998 Act”), Section 34(4) of the Act (as amended), SI 600 of 2017 (the Code of Practice on Longer Working), and relevant case law, including Mallon v. The Minister for Justice, Ireland and the Attorney General [2024] IESC 20, Doyle v ESB International Limited DEC-E2012-086, Valentine Reilly v Meath County Council ADJ-00050118, Irish Ferries Ltd v McDermott EDA1631, Pat O’Donnell & Co v O’Keeffe EDA2133, Bord na Mona plc v Kenny EDA2232, Tony Farrell v Mondelez Ireland Production Limited ADJ-00046789, Doolin .v. eir Business Eircom Limited ADJ-00045261.

Council Directive 2000/78/EC of 27 November 2000, which establishes a general framework for equal treatment in employment and occupation, has been transposed into Irish law through the Employment Equality Acts 1998–2015.

In Ireland, differential treatment on the basis of age has been prohibited since the introduction of the Employment Equality Act 1998. At the European level, age equality has been protected since the adoption of Council Directive 2000/78/EC. Furthermore, the European Charter of Fundamental Rights explicitly recognises age as a protected ground against discrimination. It also affirms the rights of older persons to live with dignity and independence, and to be socially included.

The Employment Equality Acts prohibit discrimination on the ground of age.

Section 6(1) of the Act provides as follows :

“6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

(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”),

Section 6(3)(c) provides:

“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 Act 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.”

Section 37 of the Act transposes article 4 of the Directive and provides for exclusion of discrimination on particular grounds in certain employments:

“(2) For the purposes of this Part a difference of treatment which is based on a characteristic related to any of the discriminatory grounds (except the gender ground) shall not constitute discrimination where, by reason of the particular occupational activities concerned or of the context in which they are carried out—

(a) the characteristic constitutes a genuine and determining occupational requirement, and

(b) the objective is legitimate and the requirement proportionate.”

The Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017 (S.I. No. 600/2017) outlines best practice in industrial relations for managing engagement between employers and employees approaching a mandatory retirement age. It also lists a range of legitimate aims that may justify the setting of a mandatory retirement age.

The current legal position on retirement age was set out in Seamus Mallon v. The Minister for Justice, Ireland, and the Attorney General [2024] IESC 20 where the Supreme Court considered the compatibility of a mandatory retirement age with Council Directive 2000/78/EC. The Court held that a mandatory retirement age does not constitute unlawful age discrimination where it pursues a legitimate aim and the means of achieving that aim is appropriate and proportionate, in accordance with Article 6(1) of the Directive and relevant CJEU jurisprudence.

The Supreme Court held “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”. 

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.

Departing from the High Court judgment in 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.

The Adjudication Officer in Valentine Reilly v Meath County Council ADJ-00050118 summaries the Supreme Court decision:

o   “ 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).

o   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).

o   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).

o   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).

o   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).”

It was submitted by the Respondent that the judgment in Mallon was handed down by the Supreme Court on the same day as the Complainant filed his complaint with the Workplace Relations Commission.

Burden of Proof

Section 85A(1) of the Acts provides:

“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”.

It is not disputed between the parties that the Complainant retired at the Respondent’s mandatory retirement age upon reaching 65 years of age. He had sought an extension of his contract of employment, which was denied. The Complainant’s employment ended because of his age, and this is accepted by the Respondent.

Consequently, the burden of proof now shifts to the Respondent to rebut the presumption of discrimination.

While the Respondent had opened an avenue to apply for an extension along with an appeal, it appears that their stance was that no Field Technicians or any other employees were offered an extension. The Complainant identified an individual who, the Respondent accepted, was offered an extension. However, very little evidence was provided regarding the details of that individual’s role, other than that it did not require him to climb poles, nor when the extension was approved. This is relevant due to the timing of the Complainant’s referral of the complaint, which, as the Respondent highlighted, was on the same date the Supreme Court clarified the position in this jurisdiction, having due regard for CJEU jurisprudence, which does not support individual assessment.

The evidence of the Complainant and his witnesses was consistent with that of the Respondent, where, for the most part, a similar application process was followed. Ultimately, however, this led to the same outcome, refusal of an extension, in line with the Respondent’s Retirement Policy, which has been in place since 2020. For these reasons, I find that there was a “consistent and systematic” and “coherent” application of the mandatory retirement rules by the Respondent.

The Respondent’s legitimate aims are identified in the letter dated 15 March 2024 and were based on intergenerational fairness, succession planning, and health and safety. The Retirement Policy also refers to maintaining an age balance in the workplace. All four aims were noted by the Supreme Court as legitimate.

The evidence of the Head of HR regarding gender balance and diversity in the workplace does not feature as a legitimate aim in the Complainant’s application for an extension and, therefore, is not accepted as a legitimate aim in his case.

Taking this into account, the focus of this decision is on the application of a mandatory retirement age by the Respondent. The Supreme Court stated that an employer is “better placed than the court to assess what [is] necessary or appropriate for the effective operation of the coronial system,” thereby limiting the role of the Workplace Relations Commission to consider whether the Respondent’s judgment appeared to be unreasonable.

Detailed evidence was given by Ms Stafford on the health and safety considerations applicable to Field Technicians, the apprentice programme, and workforce planning. While there was no documentary evidence to support the modelling she referred to, her testimony regarding investment in apprentices, career progression, and the changing demands of the business; from the gradual move away from copper to fibre lines, the SLAs in place with clients and customers, and the use of contractors (including the short-term contract following damage caused by Storm Éowyn) is accepted.

For these reasons, I find that the Respondent is best placed to assess what is necessary or proportionate for the effective operation of its business. In the circumstances where the Respondent acted reasonably in accordance with its Retirement Policy, I find that the mandatory retirement age was objectively and reasonably justified by legitimate aims.

Considering the financial hardship argument put forward by the Complainant. The Complainant relied upon Fuchs & Kohler Case C 160/10. In that judgment the CJEU held at para 66 and 67:-

“The Court has also held, in regard to a measure requiring the automatic termination of employment contracts at that age, in a sector in which, according to the national court, that measure was liable to cause significant financial hardship to the worker concerned, that that measure did not go beyond what was necessary to achieve the desired aims, in particular the encouragement of recruitment. The Court took into account the fact that the worker was eligible for payment of a pension while at the same time remaining in the labour market and enjoying protection from discrimination on grounds of age (see, to that effect, Rosenbladt, paragraphs 73 to 76).

67      In the present cases in the main proceedings, it is apparent from the documents before the Court that prosecutors retire, as a rule, at the age of 65 on a full pension equivalent to approximately 72% of their final salary. Furthermore, Paragraph 50(3) of the HBG provides for the possibility of prosecutors working for a further three years until the age of 68 if they so request and if it is in the interests of the service. Finally, national law does not prevent prosecutors from exercising another professional activity, such as that of legal adviser, with no age limit.”

At para. 10 of the Mallon judgment, Mr Justice Collins held:-

“A significant factor in assessing whether a mandatory retirement rule is “appropriate and necessary” will be the financial impact on the persons involved and whether it will result in undue hardship to them. In that context, whether they will, on retirement, be entitled to an adequate pension is an important consideration.”

The Complainant relied on the financial impact of retirement on his personal situation from the outset of his application. The Respondent submitted that he was in receipt of a defined benefit pension under the Main Superannuation Scheme, 1988, of which he was a member, and that he had worked beyond the necessary 40 years of pensionable service. This provided the Complainant with an annual pension amounting to 46.8% of his final salary, together with a tax-free lump sum. It was his evidence that he had not sought alternative work with the contracting company or elsewhere since his retirement.

The Complainant had an exemplary career. He had a contractual entitlement to a defined benefit pension and therefore had the opportunity to adequately plan for his retirement with security and certainty. While it is entirely understandable that the ongoing costs associated with supporting his family are substantial, I find that, in the circumstances, the Respondent’s mandatory retirement age of 65 years was appropriate and necessary in light of the pension provision.

For completeness, the Complainant’s submission regarding the Employment (Contractual Retirement Ages) Bill 2025 has been noted. However, in the absence of enacted legislation at the date of the hearing, it cannot be considered.

In conclusion, I find that the Respondent acted in compliance with section 34(4) of the Employment Equality Acts, where the mandatory retirement age applied was objectively and reasonably justified by legitimate aims, and that the means used to achieve those aims were appropriate and necessary. Accordingly, I find that the Complainant was not discriminated against on the grounds of age, and that the complaint is not well-founded.

I find that the Complainant was not discriminated on the grounds of age, and that the complaint is not well founded.

Employment Equality – Age – Retirement