ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00059763

Parties:

Complaint:

Date of Adjudication Hearing:  03/06/2026

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complain to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359 of 2020, which designates the WRC as a body empowered to hold remote hearings.

Background:

The complaint is one of discrimination on the ground of age.

Summary of Complainant’s Case:

The Complainant is a noted musician who has achieved wide recognition as a soloist, orchestral artist and teacher.  He was appointed Principal Clarinet with the RTECO in 1977.  In 1995 he was appointed Principal Clarinet with the National Symphony Orchestra which position he held until 2020.  During his time with RTECO and NSO he was a regular concerto recitalist and soloist.  He is active as a performer and recently performed the Weber first concerto, the Strauss Duet Concertino and the Messiaen  Quartet for The End of Time.

Throughout his career he has regularly conducted the NSO, RTECO, Ulster Orchestra, the Surrey Sinfonietta and Opera Theatre Company.  Furthermore he has been Director of the Hibernian Orchestra for over 30 years.

The Complainant was invited to join the RIAM team in 1995 based on a 3 hours per week.  In the 1996/97 academic year he was appointed Professor of Clarinet based on 10 hours per week.

In 2011 he signed a contract of indefinite duration with commencement date 1 September 2011.  The Complainant reached 70 on 3 August 2025.  In November 2024 the Respondent offered the Complainant a two year fixed term contract to commence on 4 August 2025 with expiry date on 3 August 2027. 

The Respondent unilaterally contended that it was agreed that the Complainant’s retirement age was 70 and that the two year fixed term contract was an extension        The Complainant contends that he did not agree with the contention that 70 was his retirement age.  He further contends that the Respondent has discriminated against him on ground of age and that others in the employment have worked on into their eighties and nineties.

In the latter part of 2024, Ms M from HR & Payroll wrote to the Complainant addressing his enquiry to work past the age of 70.  The letter stated that the Respondent’s retirement policy aligns with current Public Sector policy which mandates an upper retirement age of 70.  The letter also stated that 3 other staff members who worked past the age of 70 had either a different contract of employment or were past the age when the policy was enacted.  The letter stated that the Complainant’s retirement date was 3rd August 2025 and he would be paid up to 31st August 2025.

Following a letter from the Complainant objecting to the situation a number of meetings were held at the end of which the following was offered to him:

1. A two year non renewable term
2. Reduced working week from 10 to 8 hours
3. The transfer of his private students to RIAM

By letter dated 26th February 2025, the Complainant’s solicitors wrote to the Respondent stating that the fixed term contract was not acceptable and that they were instructed to take all necessary legal proceedings to vindicate the Complainant’s rights.

Following an email from the Respondent to the Complainant in which they stated that they would not engage with “third parties”, the solicitors wrote to the Respondent on 26th March 2025 stating that their client was entitled to seek legal advice and for this to communicate on his behalf.  They further stated the opinion that the fixed term contract proposed for the 2 year term  constitutes discrimination on age grounds as the Complainant was mandated to retire at age 70 contrary to previous practice at the RIAM.  They stated their intention to take a claim of discrimination to the WRC.

By email of 9th April 2025 the Respondent replied stating that an employer may be justified in applying a compulsory retirement age or offering a fixed term contract on the basis of age as set out in Sections 34(4) and 6 (3) (c) of the Act.  It also stated that the facilitated request would be considered in the context of S.I.600/2017 code of practice on Longer Working.  The email also referred to the small number of cases where individuals were allowed to work past the retirement age as being very limited cases involving employees with unique skill sets difficult to replace internally or externally.                    

It is acknowledged that the numbers in the particular age cohort may be limited, however as has been acknowledged the Complainant’s skill set is unique and difficult to replace.

On 16th September 2025, having rejected a proposed solution offered by the solicitors for the Complainant, the Respondent offered him a contract with less favourable terms than previously discussed.  Under time pressure and without prejudice to his right to lodge a claim with the WRC, the Complainant signed the contract.

Legal submissions

Section 6 of the Employment Equality Acts 1998 and 2004 was cited in relation to the definition of discrimination on the grounds of age.  Section 34 (4) of the 2015 Act was cited in relation to certain savings and exceptions related to the family, age or disability grounds.  Subsection (4) provides:

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.

 Council Directive 2000/78/EC 27 November 2000 was cited in relation to the framework for equal treatment.  Jurisprudence of the European Court of Justice was also cited.

Section 85A of the Act was cited and it was argued that the Complainant has established primary facts and it is for the Respondent to prove no discrimination.         

In relation to arguments raised by the Respondent at the hearing that no discriminatory act or alleged discriminatory act took place within the cognisable period encompassed by the complaint and a preliminary decision must be produced, the Complainant’s case is that Section 6 of the Act provides that discrimination shall be taken to occur where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds which exists, existed but no longer exists, may exist in the future, or is imputed to the person concerned..

It is submitted that the actions of the Respondent constitute age discrimination contrary to statute, Community law, constitutional law and in breach of the terms of his contract of employment.

Summary of Respondent’s Case:

The Complainant alleges that he has been discriminated based on age as the Respondent failed to allow him to work beyond his 70th birthday on 3 August 2025.

Preliminary Issues

The Respondent wishes to raise the following preliminary issues at the outset:

Cognisable period and Burden of proof under section 85A of the Act

The cognisable period of this complaint is from 15 December 2024 to 16 June 2025 when the Complaint Form was lodged.

Therefore, the Complainant must discharge the burden of proof under section 85A of the Act, establishing facts “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 section sets out the burden of proof which applies to claims of discrimination. It requires the claimant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. It is only when those facts have been established and are regarded by an Adjudicator as sufficient to raise an inference of discrimination that the onus shifts to the respondent to rebut the inference of discrimination raised. 

Case law was cited including

Arturs Valpeters v Melbury Developments Ltd,EDA0917,

Eupat Limited v Businkas, EDA 103,  

Mitchell v Southern Health Board (Cork University Hospital), [2001] E.L.R., and

Marge s v Graham Anthony & Co, Ltd, EDA038. 

In the latter case, it is submitted that:

The evidential burden which must be discharged by the claimant before a prima facie case of discrimination can be said to have been established was outlined by the Labour Court and stated as follows:

“The mere fact that the Claimant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Claimant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

The Respondent submits that it is only when the claimant has discharged this burden to the satisfaction of the Adjudication Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.

The Respondent submits that the claimant has failed to discharge this burden of proof and, consequently, the claim cannot succeed as the Complainant has not established any facts that discharge this burden of proof within the cognisable period.

Strictly without prejudice to the foregoing, the matter of the retirement of the Complainant and the provision of a three year post retirement fixed term contract occurred outside the cognisable period and after the lodging of the Complaint Form to the WRC, it means that the WRC has no jurisdiction to hear any complaints being the subject matter of these two occurrences.

Support for the Respondents position on this point can be found in Bord na Mona PLC v Anthoy Kenny EDA2232, where the Labour court noted that:

“Much of the evidence and submissions made to the Court focused on events that post-dated the lodgement of that complaint to the WRC. The fact that the Complainant’s employment was terminated on 30 April 2020, and that he was offered a fixed term contract subject to passing a medical examination, after his termination are not of relevance to the Court in assessing if an alleged breach of the Act occurred on the 15 January 2020. The Court’s jurisdiction is confined solely to assessing what, if any, discrimination occurred before the Complainant lodged his complaint to the WRC.”

Support can also be found in Beaumont Hospital v Somy Thomas, EDA2431, where the Labour Court noted that:

“As the Complainant has failed to establish a prima facie case of discrimination or victimisation within the cognisable period of the within complaint, the Court cannot address the contention that events occurring within that period were part of a continuum of discrimination. As a result, the Court does not have jurisdiction to consider the complaints made by the Complainant relating to events outside the period set out in the Acts for the making of a complaint of discrimination.”

Non- exhaustion of internal procedures

Without Prejudice that the complaint was issued outside of the cognisable period, it is noted that the Complainant issued his appeal on 20 June 2025, the appeal was heard on 30 June 2025, and the outcome was provided to the Complainant on 2 July 2025. Notwithstanding this the complaint form was lodged on 16 June 2025.

Case law was cited in relation to unfair dismissals cases which failed when internal procedures were not exhausted.

Strictly without prejudice to the foregoing, during the cognisable period, the Complainant had not been retired; was still an employee of the Respondent carrying out his normal duties without any change in pay or contractual terms; and was offered, but rejected, a post-retirement fixed term contract.

He is now working under a 3-year post retirement fixed term contract as a current employee of the Respondent.

The Respondent requests that these preliminary matters are addressed at the onset, with authority being the Supreme Court case of County Louth Vocational Educational Committee v Equality Tribunal [2016] IESC 40, where McKechnie J stated, in relation to the Role of the Tribunal:

“It is both a trite and historical principle of law that a creature of statute must live by the statute. Its jurisdiction is found solely within the provisions of the enabling Act. It has no inherent capacity, unlike, say, that of a constitutional court. It is therefore bound by what has been conferred on it. It has no further competence and it cannot create, add to or enlarge the jurisdiction so vested in it.  Killeen v Director of Public Prosecutions [1997] 3 I.R. 218. It is bound by what jurisdiction it has and must act accordingly.

Therefore, when considering the substantive issue, it must be remembered that the Tribunal inquires into referred incidents of discrimination: it looks at prohibited conduct of which it is notified. It has no function in a situation such as this to embark upon a wide-ranging inquiry into discrimination generally, or to generally investigate such discrimination; it does not conduct investigations proprio motu into discrimination which has not been the subject of a statutory referral to the Tribunal. Rather, it determines what lawfully has been referred to it with a view to providing redress to that applicant for any discrimination as found. The Tribunal cannot as such freelance its inquiry”.

The WRC does not have jurisdiction to hear this complaint as the burden of proof under section 85A of the Act to establish a prima facie case of discrimination within the cognisable period has not been discharged.

The Respondent reserves the right to submit a substantive submission if the Adjudication Officer finds that burden under Section 85A of the Act has been discharged or by any other direction by the Adjudication Officer.

Findings and Conclusions:

Preliminary issue

The Respondent raised a preliminary issue in relation to the date of lodgement of the complaint, the cognisable period, and the burden of proof.  

The within complaint was received on 16 June 2025.

Section 77 of the Act provides the time limits for seeking redress in respect of discrimination as being no later than the end of the period of 6 months from the date of occurrence of the discrimination to which the case relates or 12 months due to reasonable cause.

In the Act discrimination is defined as:

6.—(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 matter of preliminary decision is provided for in Section 79 of the Act.

Section 79 (3A) of the Act provides:

(3A) If, in a case which is referred to the Director General of the Workplace Relations Commission under section 77, a question arises relating to the entitlement of any party to bring or contest proceedings under that section, including:

• (a) whether the complainant has complied with the statutory requirements relating to such referrals,
• (b) whether the discrimination or victimisation concerned occurred on or after 18 October 1999,
• (c) whether the complainant is an employee, or
• (d) any other related question of law or fact,

The Director General of the Workplace Relations Commission may direct that the question be investigated as a preliminary issue and shall proceed accordingly.

In this instant case, the Respondent requests that a preliminary issue be decided and a decision be made not in favour of the Complainant for the reasons outlined in relation to the date of lodgement of the complaint, the matters not being within cognisable period, and the burden of proof not being discharged.  

Section 79 (6) of the Act provides:

(6) At the conclusion of an investigation under this section (including an investigation of a preliminary issue under subsection (3) or (3A), the Director General of the Workplace Relations Commission shall make a decision and, if a decision is in favour of the complainant –

(a) it shall provide for redress in accordance with section 82, or

(b) in the case of a decision on a preliminary issue under subsection (3) or (3A), it shall be followed by an investigation of the substantive issue.

In this case, there are 2 questions to be addressed.

Was there an alleged discriminatory act during the cognisable time period encompassed by the complaint? 

The second question is if not, was there an intention to allegedly treat the Complainant less favourably in a comparable situation on the age ground which—

…(iii) may exist in the future..

Sequence of events

I note the various contracts and dates of contracts offered to the Complainant as follows:

1 November 2011 – contract of indefinite duration - states normal retirement age is 65.

During November and December 2024, the Respondent and the Complainant engaged in correspondence.  The Respondent advised the Complainant that his employment would come to an end on his 70th birthday 3rd August 2025.   The Complainant informed the Respondent that what was being proposed was “unlawful and illegal”.

On 27 January 2025 the Respondent offered the Complainant a fixed term contract for 2 years to expire on 3 August 2027.

On 26 February 2025 the Complainant’s solicitors advised the Respondent they were instructed to take all necessary legal proceedings to vindicate the Complainant’s rights.

On 28 March 2025 solicitors for the Complainant wrote to the Respondent stating that they were ‘of the opinion that the fixed term contract proposed for a duration of 2 years constitutes age discrimination as our client is mandated to retire at age 70, contrary to past practice at the RIAM’.

On 9 April 2025 the Respondent replied to the solicitors expressing the hope that the Complainant would give further consideration to the offer of a post-retirement fixed term contract.

On 16 June 2025 the Complainant submitted his complaint that the Respondent had discriminated against him on the age ground.

On 15 September 2025 the Respondent offered and the Complainant accepted a 3 year fixed-term contract.

I note the Respondent strongly holds that the complaint cannot be considered as many of the matters fell outside the statutory time limits and specifically occurred after the Complainant lodged his complaint.  In particular the issuing of the 3 year fixed-term contract was issued in September 2025 after the complaint was lodged to the WRC.

The Complainant strongly holds that the Respondent discriminated against him by ‘unilaterally’ changing the normal (or custom and practice in some cases) retirement age.  He submitted his objection within the statutory cognisable time period.

In relation to the second question - was there an intention to allegedly treat the Complainant less favourably in a comparable situation on the age ground which—

…(iii) may exist in the future..

I note that the issuing of the 3 year fixed-term contract may be considered to allegedly discriminate against the Complainant in the future.

In the High Court Judgement in Brady -v- Employment Appeals Tribunal (2015) ELR 1 Mr Justice Barrett held that (1) prescribed time limits are normally intended to “thwart the tardy, not punish the prompt”, (2) there is a longstanding equitable principle that “Equity aids the vigilant, not the indolent”.

The sequence of events above shows that there was correspondence between the parties regarding each side’s position on retirement age.  I find that the Respondent was on notice within the statutory cognisable time period that the Complainant believed the Respondent was discriminating against him on the ground of age. 

For the reasons outlined, I find that the matter should proceed to an investigation of the substantive issue as provided for in Section 79 (6) (b) of the Act.

For completeness, none of the findings here are intended to indicate that the Complainant may succeed in the substantive case and do not address the prima facie case which can be addressed in the investigation of the substantive issue.

Decision:

Section 79 (6) (b) of the Act provides that I make a decision in the case of the preliminary issue raised.

Based on the reasons and findings above I have decided that this complaint should proceed to an investigation of the substantive issue.

Dated:   23rd of July 2026

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: