A Receptionist v A Packing Company, ADJ-0005241, 30 August 2017
The complaint was taken under Section 77 of the Employment Equality Act 1998
The complainant was employed as a Secretary-Receptionist, who commenced with the Respondent on 27 May 2003 until the termination of her employment on 9 September 2016 on reaching the age of 66.
The former employee stated that there was no reference to a retirement age in the contract of employment. In 2012 she was given an updated version of her terms and conditions of employment and was asked to sign them. Again, there was no mention of a compulsory retirement age. In February 2016 she told her manager she did not want to retire and he stated that the company retirement age is 66. Her manager referred her to the 2012 contract changes and the provisions in the company handbook but she said she was never given one and stated she has not been furnished with one since.
The company did not attend the hearing.
Findings of the Adjudication Officer
The adjudicator found the complainant's evidence to be credible and as the company didn’t attend they could not dispute it. The adjudicator stated that it was clear the worker had put the company fully on notice that she did not wish to voluntarily retire on reaching 66. Since she was never provided with the company handbook she could not have been aware of the implied retirement age of 66. The adjudicator stated that it was hard to avoid speculating that, perhaps on advice, the respondent unilaterally inserted a retirement age into the company handbook in 2012 but neglected to secure the worker's consent to the change. It therefore has no legal validity. Furthermore, he found that the company failed to justify the termination on any of the grounds provided for in section 6(1) of the Employment Equality Acts 1998-2004 and the Equality (Miscellaneous Provisions) Act 2015. The retirement on grounds of age was not ‘objectively and reasonably justified by a legitimate aim’ and neither could the means of achieving that aim to be ‘appropriate and necessary’. He awarded the Complainant €25,000, this being approximately 1 year’s salary, taking account of the conduct of her employer and the purported change in her contract of employment which was unacceptable and lacked transparency, as was the failure to provide her with a copy of the company handbook.
Airport Development Company v John Glavey, EDA1710, 5 April 2017
The complaint was taken under section 83 (1), Employment Equality Acts, 1998 to 2011
The complainant worked for the airport as a senior bartender from 1991 until his retirement on 6 January 2016. He was originally employed by A Catering Company and transferred to the employment of the Airport Development Company in 2003 when it took over the airport’s catering services.
The Catering Company contract of employment did not contain a retirement age, and neither did the company's contract of employment, post the transfer, furnished to him in 2006. It came as a surprise to the employee when the company informed him that he would be retiring in January 2016. While the employee was aware of other retirements from the Airport he was not necessarily aware of the ages of the retirees. There were at least two employees, he said, whom he knew were retained beyond their 65th birthdays. He stated that he was fit and well and had no difficulty carrying out the duties associated with his job. Therefore, there was no justification for a mandatory retirement age in this situation. The employee was not a member of an occupational pension scheme and would not qualify for the state pension until he reaches 66 years. While the company did introduce an occupational pension scheme in 2010, the employee did not join as it was his belief that he would not gain any benefit from it.
The company stated that the retirement age was an express term of the individual's terms and conditions of employment with Campbell Catering, and that employment would not continue past an employee's 65th birthday. While it is accepted that the new contract, from the transfer in 2003, did not contain a mandatory retirement clause, it is submitted that such a clause should be implied as it had been the accepted custom and practice of the company since 1986 for employees to retire when they reach the age of 65, except in the most limited and exceptional of circumstances. The company stated that the two employees retained past 65 were for exceptional circumstances.
Findings of the Court
Having regard to all the circumstances, the Court could not accept that the employee had knowledge of a retirement age of 65 years. The company had ample opportunity to inform the employee of a requirement that he must retire at age 65. There was no evidence that the employee was informed or was provided with any document from which this could be discerned. There was no express term in his conditions of employment requiring him to retire at age 65 years and, in the Court’s opinion, no such term could be regarded as having been implied or incorporated into his contract of employment. The worker was awarded reinstatement with the same terms and conditions that he had before and compensation of €6500 for the effects of the acts of discrimination.
Mr Q v An Employer, ADJ-00001616, 2 May 2017
The complaint was taken under section 77 of the Employment Equality Act, 1998
The company is an organisation based and operating in Shannon Airport. The complainant was an employee of the company prior to the termination of his employment on the 13 November 2015.
The individual began working as a temporary worker with the company on the 8 May 1995 when he was 44 years of age. He was not furnished with a contract of employment but did receive a statement of the terms and conditions of employment in October 2003, when he was made permanent. However, it did not state a compulsory retirement age. The employee claimed that he was unaware of the existence of any document or policy which points to an established retirement age. The employee was promoted in 2011. He only discovered that he would be retiring in November when he saw a notice advertising his job and rang his manager. The worker identified in his statement, three employees that he was aware of who had still been working for the company after the age of 65.
The company stated that the former employee retired on the 13 of November 2015 in line with the Company’s established retirement age. The company said that they did not advertise the position before putting him on notice of retirement. The company stated that the normal retirement age of 65 has been well established in the company and is an implied term of employment. In response to the employees who worked past 65, the company said that one may have been available for handover queries that may have arisen immediately after his retirement but it was not in an employment capacity and there was no payment or retention bonus. Another one came back as an independent contractor, not an employee of the company, and another retired at 65 but because of exceptional circumstances was brought back on two fixed term contracts to provide relief work. The company also provided objective justification for the retirement age of 65 which included; to protect the health and safety of the Air Craft Refuellers and Crew Chiefs, and that workforce, succession planning, promotion and inter-generational fairness also requires an established and enforced normal retirement age.
Findings of the Adjudicator Officer
The adjudicator found that the company had ample opportunity to inform the employee of the requirement to retire at age 65 since his commencement with the company. The company had provided reasons within their submission such as health and safety, workforce and succession planning, and dignity in the workplace. The justifiable reasons are as a result of a report conducted by the Health, Safety and Environmental Manager within the company in July 2016. This report was completed after the former employee's retirement. At no point in written correspondence provided had the company explained this reason for his retirement in advance of same, as a reasonable and justifiable requirement for a retirement age of 65, to the individual concerned. The adjudicator awarded the former employee compensation of €5000 for the effects of the act of discrimination.
A Plumber v A Hospital, ADJ-00007556, 12 July 2017
The complaint was taken under section 13 of the Industrial Relations Act 1969
The complainant was forced to retire on his 65th birthday when others were retained after they turned 65.
The complainant retired on his 65th birthday with 37 years service from his position as a plumber in a hospital. His union argued unsuccessfully that he should be retained as this opportunity had been afforded to many other employees within the particular catchment area of the HSE.
The worker's contract specified a retirement age of 65. Up until 2011 it was a practice that some staff were re-employed after they retired within the HSE. This practice ceased following objections by the unions who argued that new staff should be employed due to the high unemployment rates. The organisation along with other bodies in the HSE was directed to finish all retiree contracts and not to offer any more unless special circumstances existed and these were to be approved individually at a senior level within the HSE. Where staff were re-employed after that date it was due to staff shortages in certain grades. Any such staff were re-employed on the minimum of the ‘new entrants’ scale. The former employee's role was not considered to be a scarce grade.
Findings of the Adjudication Officer
The adjudicator found that the issue of mandatory retirement age is a complex one requiring detailed consideration. The Public Service Stability Agreement 2018-2020, although not yet implemented, commits to dealing with the issue in a consultative process with both employers and unions. The priority given to the issue will be a matter for these parties to pursue. In the meantime, before the relevant issues of concern in altering the existing arrangements have been properly addressed, it would not be appropriate to agree to a request to continued employment past the contracted retirement age, or re-employment thereafter, on demand. The adjudicator stated that he could not find any compelling evidence to uphold the complaint and the claim to have the former employee reinstated and compensated was rejected.
Transdev Light Rail Ltd v Michael Chrzanowski, DEC-E2016-070, 17 November 2016
The complaint was taken under section 83(1) Employment Equality Acts 1998 to 2011
The complainant was employed as a tram driver from 6 March 2007 until the termination of his employment on 3 October 2014, on his 65th birthday. He claimed that by retiring him at age 65 he was subjected to discriminatory treatment by the respondent company. He submitted that there was no retirement age in his written contract of employment.
The former employee submitted that there was no mention in his contract of employment that he would have to retire at 65 years and that there were precedents in the company for workers to be retained. He disputed the company's contention that health and safety concerns prevented him from being retained. The former employee said he had raised the issue of his request to be retained, with management, on a number of occasions prior to his 65th birthday, however, the company, he said, gave no serious consideration to proposals made in this regard.
The company stated that 65 is the established retirement age for all employees in the company. This practice has been consistently applied and was an implied term in the former employee's contract of employment, as reflected in the company's pension scheme, of which he was a member. It had been expressly contained in all tram drivers’ contracts of employment since 2007. The former employee was a member of the Veolia Transport Limited Retirement Solution Plan since 25 April 2012. This specifically states “your normal retirement age (NRA) is 65 years”. The company outlined for the Court, details of available medical evidence which indicates that the age of 65 is an appropriate age to have set as a retirement age for tram drivers and is also the age at which benefits are available under the occupational pension established by the company. It said that the evidence suggests that advancing age of tram drivers can give rise to health and safety concerns and suggests that there is a concern that the ability to safely operate a tram may diminish with advancing age.
While the former employee's contract of employment did not specify a retirement age, he was provided with and signed a copy of the collective agreement between the company and the union. This document provided details of the Group Pension, Life Assurance and Disability Scheme. The driver opted not to join the latter scheme until 2012, when he was provided with details which explicitly stated that the retirement age was 65. Thus, the Court was satisfied that the company had a contractual retirement age in respect of the former employee and that the former employee knew or ought to have known of its existence. The Court saw no merit in the driver's argument that he had a legitimate expectation of working beyond age 65. Taking account of the medical opinions, along with the workforce planning requirements and the collectively agreed pension scheme, the Court was satisfied that a compulsory retirement age of 65 for tram drivers was reasonable and appropriate in the circumstances. Furthermore, it accepted that it constituted a legitimate aim of employment and labour market policy in order to prevent possible disputes concerning tram driver’s fitness to work beyond a certain age. Therefore, the court found that the claim was not well founded.
As we can see from the above cases, unless an employer successfully proves that the grounds for the compulsory retirement age is ‘objectively and reasonably justified’ by a ‘legitimate aim’ and the means of the aim are ‘appropriate and necessary’, it will not be upheld before a third party. It is also worthwhile to note that the defence that the retirement age is an ‘implied term’ does not often hold up. It is also evident that where an employer effectively communicates with their employees about the company retirement age they are minimising their exposure. In several of the cases summarised here, the employer lost on grounds that they had ample opportunity to make the employee aware of the compulsory retirement age but did not do so. Best practise requires an employer to provide an employee with written evidence of a company retirement age on commencement of employment or as soon as is practicable thereafter.
Ibec Employer Relations
Wednesday, 13 December 2017