EDA2646

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No.: ADJ-00048167 (CA-00059218-001).

BACKGROUND:

The Employer appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 22 October 2024.

A Labour Court hearing took place on 18 June 2026.

The following is the Determination of the Court:

DETERMINATION:

This is the Respondent’s appeal against Adjudication Officer Decision ADJ-00048167, CA-00059218-001. The Adjudication Officer found that the Complainant had been discriminated against on the age ground and awarded a lump sum equivalent to statutory redundancy, calculated under the Redundancy Payments Acts 1967, as amended, together with pay in lieu of notice based on the applicable service-related statutory provisions. The complaint was lodged with the WRC on 4 October 2023. The cognisable period under the Act was from 5 April 2023 to 4 October 2023. The Adjudication Officer issued the decision on 12 September 2024, and the Respondent appealed to the Labour Court on 22 October 2024. The Labour Court heard the case in Dublin on 18 June 2026. At the conclusion of the hearing, the parties were given additional time to submit relevant information identified during the proceedings. The Court received all additional information by 21 July 2026.

In keeping with its usual practice, the Court refers to the parties in this Determination as they were described at first instance. Accordingly, Brendan Connor is referred to as the Complainant and Iarnród Éireann as the Respondent.

1. Summary of the Complainant’s Submission.

Stephen O’Sullivan BL, on behalf of the Complainant, submitted that the Complainant worked for the Respondent from 27 March 2000 to 2 June 2023. In May 2021, he was offered a voluntary severance package but declined it because he reasonably believed that his retirement age was 70. He was employed as a Gatekeeper at Claremorris station, a safety-critical role. When the Claremorris level crossing was automated in September 2017, his duties changed to cleaning and providing staff cover at Westport station. He did not perform safety-critical duties after 2017.

By letter dated 2 June 2022, the Respondent notified the Complainant that he would be transferred to Westport Station as a Gatekeeper. The letter stated that he would retain his salary on the Gatekeeper pay scale, assist with customer service and cleaning duties at Westport, and be entitled to eight weeks’ notice. In correspondence dated 25 May 2023, management stated that it had come to their attention that the Complainant had turned 66 on 23 May 2023.  They noted that he was a surplus Gatekeeper, not in the pension scheme and had turned down voluntary severance. He had then moved to RU but remained in an IM cost centre.

 The Respondent in making the Complainant retire at 66 seeks to rely on a 2003 collective agreement entitled New Deal Proposals for Resident and Non-Resident Level Crossing Keepers. It stated:

“In accordance with the rules of the pension scheme, all crossing keepers will be required to retire from the Board’s service no later than age 65. However, special arrangements may be made to retain resident level crossing keepers beyond age 65, subject to appropriate medical screening prescribed by the Chief Medical Officer. In such circumstances, weekly payment will be discounted by pension annuity where applicable.”

The Complainant submits that this clause does not require the level crossing to remain open or the worker to be medically fit for level-crossing or other safety-critical duties.

Mr O’Sullivan BL referred the Court to a letter dated 29 September 2017 stating: “The normal retirement age is 65/66 for all roles within Iarnród Éireann, with the exception of Gatekeepers who are not members of the pension scheme. They may work until age 70, provided they are medically fit and there is a role for them.” He submitted that the letter did not require the role to remain that of Gatekeeper or the crossing to remain manually operated. The Complainant was dismissed because he had reached age 66, and age was therefore the sole reason for the termination.

Mr O’Sullivan BL further submitted that a hypothetical comparator may be used in an age discrimination claim and cited Bolger, Employment Equality Law, 2nd ed., in support. He identified the following four comparators:

• KM worked as a Gatekeeper until age 70 and was not a member of the pension scheme.
• MH worked as a Gatekeeper until age 67, was not a member of the pension scheme, and received a severance payment.
• AC was a Gatekeeper at Claremorris and was not a member of the pension scheme. At age 65, although no longer performing gatekeeping duties, he received a voluntary severance package.
• JC was a Gatekeeper at Claremorris who performed cleaning duties at Westport. He was aged 62 when the Complainant’s employment ended, was a member of the pension scheme, and was due to retire at age 66.

The Complainant submitted that none of these comparators retired at age 66 with only a small ex gratia payment and that he was therefore treated less favourably.

Mr O’Sullivan BL referred the Court to correspondence between the Respondent and the CMO concerning the Complainant’s medical unfitness for safety-critical duties.

He submitted that the burden of proof rested with the Respondent to establish that the Complainant did not satisfy the conditions for continuing to work until age 70, that 66 was the correct retirement age, and that the retirement age was objectively justified. The Complainant sought reinstatement, re-engagement, or compensation. He also claimed to have lost a valuable voluntary severance package, which he had declined because he believed he could work until age 70.

2. Summary of Complainants Witness evidence

In his evidence-in-chief, the Complainant stated that he turned down the severance offers because he believed he could work until he was 70. He worked as a Gatekeeper until 2017, when his gate was automated, and thereafter worked in Westport cleaning trains. Although he was given a letter reassigning him to Westport, he never signed it. It was his evidence that he was not redeployed; he was still a Gatekeeper when he retired, just not working at the gate.  In terms of his comparators, it was his evidence that MH did not have a gate when he retired at age 67 with a package, and it was the Complainant’s understanding that the package was calculated on the basis that MH could work until age 70. The Complainant was still paid through the Gatekeeper payroll even after he was moved to Westport. He confirmed that he was aware of the letter from the CMO stating that he could not perform work of a safety-critical nature.

Under cross-examination by Ms Burke, he did not dispute that there had been multiple discussions about gate closures or that he had been offered a severance package, which he declined. He accepted that, after his gate closed, he performed handyman duties in Westport, but he did not agree to redeployment. He confirmed that he did not make a request under the longer-working policy to remain in employment after his 66th  Birthday.

3. Summary of the Respondent’s Submission

The Respondent submitted that the Complainant commenced employment in March 2009 as a Gatekeeper in Claremorris, Co. Mayo. In 2011, the Claremorris level crossing was identified for future automation. The Complainant was then provided with a voluntary severance estimate, which he did not accept. When the crossing was automated in September 2017, the Complainant was among a small group of Level Crossing Keepers with whom the Respondent engaged under its redeployment scheme. The parties were unable to agree on an alternative role, and he declined a further voluntary severance estimate in May 2021. In July 2021, the Trade Unions referred issues concerning surplus Gate Keepers, including the Complainant, to the WRC for conciliation. During that process, the Respondent stated that the arrangement permitting Gatekeepers to work until age 70 had been introduced for those who were ineligible for pension scheme membership. It was contingent on an available Gatekeeper position and certification by the CMO that the employee was medically fit to work beyond the normal retirement age. The Respondent further stated that, where no such position was available, working until age 70 was not an option and that the entitlement did not transfer following redeployment. This position was set out in correspondence dated 26 January 2022. In 2019, following a mandatory medical assessment, the Complainant was declared unfit for all safety-critical roles.

In December 2021, Mr Connor was redeployed to a supernumerary position at Westport station, where he carried out train-cleaning duties. He queried his retirement age and was informed by email in June 2022 that it was 66. He did not raise the matter again. In accordance with the Respondent’s normal practice, the Complainant retired upon reaching age 66.

Regarding the comparators identified by the Complainant, AC accepted a severance package at age 65. The Complainant was offered severance packages on two occasions but declined both. KM and MH were over age 66 when they retired and were still performing gatekeeping duties. From 10 July 2017, MH was rostered as required to cover other Gatekeepers and remained rostered as a Gatekeeper until the week commencing 4 September 2017. He declined redeployment and was informed in writing that he would retire on 13 October 2017. JC was a member of the pension scheme and was due to retire at age 66.

The Respondent relied on section 34(4) of the Act. Apart from the arrangement for Gatekeepers who were not members of the pension scheme, it applied a mandatory retirement age of 66 because it provided a safety-critical service. The Respondent submitted that this retirement age was justified on health and safety grounds, as all employees shared responsibility for the safety-critical nature of the railway industry.

The Respondent submitted that it had not discriminated against the Complainant.

4. Summary of Respondents Witnesses evidence

• Ms O’Rourke confirmed in her evidence that she was Chief Head of Employee Relations and had been involved in the redeployment policy in 2012 arising from the closure of level-crossing gates. In 2017 and 2018, there were still pockets of people in the West of Ireland who had neither taken severance nor been redeployed when their gates closed and who, at that stage, provided relief cover only when required. With the assistance of the WRC, there was further engagement at that stage with a view to moving all of them into viable positions. A procedure was agreed with the Unions, and a final arbitrator was appointed to address any issues arising from the redeployment. In cross-examination, Mr O’Sullivan BL put it to the witness that there was no document proving that the Complainant’s retirement age was 66. The witness stated that there was a collective agreement for resident Gatekeepers, later extended to non-resident Gatekeepers, under which they could remain in employment until age 70 in certain circumstances because they were not members of the pension scheme. That option existed only if their gate remained open and had not been automated; otherwise, they were covered by the standard retirement age of 66. Following his redeployment, the Complainant reported for work in the new area and carried out the duties assigned to him. He did not indicate that he was working under protest or lodge a grievance. The Complainant did not apply to work beyond age 66.
• Ms Coyne, HR Service Manager, Infrastructure, stated in her evidence that Gatekeepers’ terms and conditions of employment provided for retirement at age 66. Some remained in employment until age 70, provided that they were not members of the pension scheme, were medically fit to do so, and an available Gatekeeper role existed. The Complainant’s role was supernumerary and was not backfilled when he left. Because he was supernumerary, he remained on the Managing Infrastructure payroll, which covered gates. Stations fall under the Railway Undertaking’s budget. His budget heading did not change because he was not moving to a vacancy. The witness accepted that the Complainant’s retirement fell between two stools and that the normal pre-retirement notification had not been given, which was why he received such short notice. In response to a question from counsel, the witness stated that his retirement age had changed from 70 to 66 when he was redeployed to Westport in 2022.
• Mr Paul Buckley stated that he was the Train Control Operations Manager and that Gatekeepers fell within his remit. It was his evidence that the normal retirement age was 66, unless employees were not members of the pension scheme, in which case they could work until age 70, provided that their gate was still operating and they were medically fit. Between 2012 and 2017, gates in the West changed from manual to automatic operation, and control of the gates transferred to Athlone. There were limited redeployment opportunities, but workers had the choice of redeployment or a severance package following collective negotiations with the unions. By 2017, there were 10 Gatekeepers remaining who were not satisfied with the options available to them. Some were still being paid but had no work, and the parties entered into discussions under the auspices of the WRC. The witness stated that he wrote to the Complainant in 2021, advising him that the unions were dealing with the issue collectively. As part of the conciliation process, the Respondent clarified the retirement age: employees could work until age 70 if their gate had not been automated and they were medically fit to do so. It was his evidence that gatekeeping was a safety-critical role and that no Gatekeeper who was a member of the pension scheme worked beyond age 66. In relation to the comparators, KM worked until age 70 because her gate was still open; MH worked until September 2017 and retired within four weeks of his gate closing.

5. Relevant Law

Section 34(4) of the Act provides:

Section 27 of the Act provides, in relevant part, as follows:

(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.

(3) It is an occupational requirement for employment in the Garda Síochána, prison service or any emergency service that persons employed therein are fully competent and available to undertake,

and fully capable of undertaking, the range of functions that they may be called upon to perform so that the operational capacity of the Garda Síochána or the service concerned may be preserved.

The issue before the Court is whether the termination of the Complainant’s employment at age 66 rather than age 70 was discriminatory.

6. Facts not in Dispute

The following facts were not in dispute:

The CMO had in 2019 declared the Complainant medically unfit for safety-critical duties.

Gatekeeping was a safety-critical role.

The Respondent applied a mandatory retirement age of 66 because of the safety-critical nature of its services.

An agreement with the trade union permitted Gatekeepers who were not eligible for pension scheme membership to work beyond the mandatory retirement age, up to age 70, subject to appropriate medical screening.  The Complainant was not a member of the pension scheme.

Following his redeployment in June 2022 to duties that did not include gatekeeping, the Complainant queried his retirement age and was informed that it was 66. He did not raise the matter further at that time.

By letter dated 29 May 2023, the Complainant was informed that, having reached age 66, he would retire and that his last working day would be 2 June 2023. The letter also stated that, because he was not a member of the pension scheme, he would receive an ex-gratia payment.

7. Discussion and Determination

The Complainant contended that he had been discriminated against on the age ground because he was required to retire at age 66, while some other Gatekeepers were permitted to work until age 70 under the existing agreement. Although he was no longer performing Gatekeeping duties, he maintained that he remained a Gatekeeper, continued to be paid on the Gatekeeper scale, and was not a member of the pension scheme; therefore, the exemption applied to him. Mr O’Sullivan BL submitted that the agreement did not expressly require an employee to be performing gatekeeping duties to benefit from the exemption.

 The Court notes that the particular agreement being relied on formed part of the June 2003 New Deal Proposals for Resident and Non-Resident Level Crossing Keepers. Its opening paragraphs addressed improved pay and conditions for Gatekeepers, the need to maintain continuity of rail services, and the alignment of attendance at crossings with service and operational requirements. Although the agreement did not expressly state that an employee had to be working as a Gatekeeper at the relevant time, the whole agreement applied only to the work of resident and non-resident Gatekeepers. In those circumstances and noting that the agreement did not provide for the entitlement to follow an employee, the Court cannot accept that this element of the agreement was not tied to carrying out the role of Gatekeeper. The relevant clause also made the arrangement subject to appropriate medical screening for the role and it was not disputed that in 2019 the CMO had held that the Complainant was not fit for safety critical roles.

Having considered all of the above, the Court finds that the retirement exemption did not apply to the Complainant at the relevant time. He was no longer working as a Gatekeeper, which was a safety-critical role, and had previously been certified by the CMO as medically unfit for safety-critical duties. No evidence was presented that any employee who was not working as a Gatekeeper in the period before retirement had been permitted to continue working under the exemption.

The Court therefore determines that the Complainant was not discriminated against. He was not permitted to work until age 70 because he was no longer employed as a Gatekeeper and was medically unfit for safety-critical work.

On that basis, the Court determines that the appeal succeeds. The decision of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Louise O'Donnell
TH	______________________
11/09/2026	Chairman

NOTE

Enquiries concerning this Determination should be in writing and addressed to Ms Therese Hickey, Court Secretary.