Age Discrimination
Cases
Seldon v Clarkson Wright & Jakes (A Partnership)
[2009] EWCA Civ 889
COURT OF APPEAL (CIVIL DIVISION)
LADY HALE (WITH WHOM LORD BROWN, LORD MANCE AND LORD KERR AGREE)
“This case raises difficult issues about the scope for justifying direct discrimination on the ground of age and in particular a mandatory contractual retirement age. It arises under the Employment Equality (Age) Regulations 2006 (SI 2006/1031) (“the Age Regulations”), the measure by which the United Kingdom transposed Council Directive 2000/78/EC, establishing a general framework for equal treatment in employment and occupation (“the Directive”), into UK law in respect of age discrimination. But the same issues arise under the Equality Act 2010, which has now replaced those Regulations.
Age is a relative newcomer to the list of characteristics protected against discrimination. Laws against discrimination are designed to secure equal treatment for people who are seen by society to be in essentially the same situation. The Aristotelian injunction that like cases be treated alike depends upon which characteristics are seen as relevant for the particular purpose. For most of history it was assumed that the differences between men and women were relevant for a whole host of purposes. Now the general rule is that they are not. But as Advocate General Sharpston commented in her Opinion in Bartsch v Bosch und Siemens Hausgeräte (BSH) Altersfürsorge GmbH Case C-427/06 [2008] ECR I-7245, at [47], until comparatively recently differentiating on the basis of age was considered obviously relevant for the purpose of termination of employment. And it is still considered that age may be a relevant consideration for many more purposes than is so with the other protected characteristics. Hence recital 25 to the Directive, after recognising that 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”, continued:
“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 reasons why age may be relevant in more circumstances than the other characteristics may seem obvious, at least where this has to do with the comparative capabilities of people of different ages. A younger person may not have the same training and experience as an older person. An older person may have lost the mental or physical strength which once she had. But it will be seen from recital 25 above that the European legislators considered that age discrimination might be justified by factors which had nothing to do with the characteristics of the individual but had to do with broader social and economic policy. These factors would not justify direct discrimination on the ground of any of the other protected characteristics, so why should age be different?
The answer must be that age is different. As Ms Rose put it on behalf of the Secretary of State, age is not “binary” in nature (man or woman, black or white, gay or straight) but a continuum which changes over time. As Lord Walker pointed out in R (Carson and Reynolds) v Secretary of State for Work and Pensions [2006] 1 AC 173, at [60], “Every human being starts life as a tiny infant, and none of us can do anything to stop the passage of the years”. This means that younger people will eventually benefit from a provision which favours older employees, such as an incremental pay scale; but older employees will already have benefitted from a provision which favours younger people, such as a mandatory retirement age.
The critical issues in this case are what sort of policy considerations can justify such discrimination, who decides upon them, and how they are to be applied to any individual person. I turn, therefore, to the facts of this case.
The facts
Mr Seldon was born on 15 January 1941, qualified as a solicitor in 1969, joined Clarkson Wright and Jakes, the respondent firm, in 1971 and became an equity partner in 1972. He became the senior partner in 1989. He was also managing partner from 1989 to 1993. He reached the age of 65 on 15 January 2006.
There had been a succession of partnership deeds over that period but all had provided for the mandatory retirement of partners at the end of the year in which they reached the age of 65. Clause 22 of the deed adopted in 2005 provided:
“Any partner who attains the age of 65 years shall retire from the Partnership on 31st day of December next following his attainment of such age (or on such later date as the Partners shall from time to time and for the time being determine.)”
The deed did not make any provision for the removal of underperforming partners or for the reduction of their profit share to reflect underperformance. The partners preferred to address these matters through discussion and agreement.
As he approached his 65th birthday, Mr Seldon realised that for financial reasons he would need to go on working in some capacity for another three years. Early in 2006 he made a series of proposals to his partners with a view to continuing to work as a consultant or salaried employee for another three years. These proposals were rejected by the other partners in May 2006 on the basis that there was no sufficient business case, but an ex gratia payment of £30,000 was offered as a goodwill gesture to reflect his long service with the firm. The Age Regulations came into force on 1 October 2006. Mr Seldon told the firm that he was seeking legal advice on the Regulations and the offer of an ex gratia payment was withdrawn. Mr Seldon automatically ceased to be a partner in accordance with the partnership deed on 31 December 2006.
He began these proceedings in March 2007, alleging that his expulsion from the firm was an act of direct age discrimination and the withdrawal of the offer of the ex gratia payment was an act of victimisation. The firm claimed that his treatment was justified. They put forward six legitimate aims:
“29.1 ensuring that associates are given the opportunity of partnership after a reasonable period as an associate, thereby ensuring that associates do not leave the firm;
29.2 ensuring that there is a turnover of partners such that any partner can expect to become Senior Partner in due course;
29.3 facilitating the planning of the partnership and workforce across individual departments by having a realistic long term expectation as to when vacancies will arise;
29.4 limiting the need to expel partners by way of performance management, thus contributing to a congenial and supportive culture in the Respondent firm;
29.5 enabling and encouraging employees and partners to make adequate financial provision for retirement;
29.6 protecting the partnership model of the Respondent. If equity partners could not be forced to retire at 65, but employees (including salaried partners) could be, it would be preferable to keep lawyers at the Respondent as employees or salaried partners rather than equity partners.”
It was made clear that the firm was not relying on the personal characteristics or any poor performance of Mr Seldon, nor were they relying on the structure of the wider market for legal services, but simply upon their own circumstances.
The Employment Tribunal (“ET”) accepted that the firm did have the first, third and fourth of the claimed aims and that they were legitimate. Retention of associates was a legitimate aim for a firm “with a strategy for growth and the preservation of a reputation for the quality of its legal services” (ET [51.5]). The short and long term planning of the requirement for professional staff was facilitated by solicitors having, among other things, an expectation of when vacancies within the partnership would arise (ET [53.4]). The lack of a power to expel partners for under-performance was capable of contributing to the creation of a congenial and supportive culture among the partners (ET [54.8]. The tribunal were not persuaded that the firm actually had the second, fifth and sixth of the claimed aims: enabling all partners who stayed the course to become senior partner (ET [52.4]); encouraging partners to make financial provision for their retirement (ET [55.5]); or protecting the partnership model (ET [56.3]).
The ET also accepted that compulsory retirement was an appropriate means of achieving the firm’s legitimate aims of staff retention, workforce planning and allowing an older and less capable partner to leave without the need to justify his departure and damage his dignity. The first two could not be achieved in any other way and introducing performance management would be difficult, uncertain and demeaning, so there was no non-discriminatory alternative to the third. Having balanced the needs of the firm against the impact of the rule upon the partners, the ET concluded that it was a proportionate means of achieving a congenial and supportive culture and encouraging professional staff to remain with the firm (ET [67]). The discrimination claim therefore failed but the victimisation claim succeeded.
The ET was not asked to consider whether any of those aims could be achieved by a different retirement age. The Employment Appeal Tribunal [2009] IRLR 267 appears to have accepted that the aims of staff retention and workforce planning could be met by any fixed retirement age. But there was no evidential basis for the assumption that performance would drop off at around the age of 65, and thus for choosing that age in order to avoid performance management and promote collegiality (EAT [77, 78]). As the EAT could not be sure what decision the Tribunal would have reached had it assessed the justification by reference only to the other two objectives, the case was remitted to the Tribunal to consider the question afresh (EAT [81]).
Mr Seldon appealed to the Court of Appeal, where the principal issues were the same as those before this Court. The appeal was dismissed: [2010] EWCA Civ 899, [2011] ICR 60.
The issues
The issues before this Court, as agreed by the parties, are three:
(1) whether any or all of the three aims of the retirement clause identified by the ET were capable of being legitimate aims for the purpose of justifying direct age discrimination;
(2) whether the firm has not only to justify the retirement clause generally but also their application of it in the individual case; and
(3) whether the ET was right to conclude that relying on the clause in this case was a proportionate means of achieving any or all of the identified aims.
Both Mr Seldon and Age UK invite the Court to consider these issues having it firmly in mind that the purpose of all anti-discrimination legislation is to “address the mismatch between reality and past assumptions or stereotypes. In the context of age discrimination these assumptions have usually concerned age as a proxy for continuing competence or capability or financial security or intentions about work”. These assumptions no longer hold good (if they ever did) in times of increasing longevity, where there are benefits both to individuals and to the wider society if people continue to work for as long as they can. Put simply, the younger generations need the older ones to continue to be self-supporting for as long as possible. So we should put such stereotypical assumptions out of our minds.
The legislation
Article 1 of the Directive proclaims that its purpose is to:
“lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.”
Article 2 defines the concept of discrimination thus:
“1. For the purposes of this Directive, the ‘principle of equal treatment’ shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in article 1.
2. For the purposes of paragraph 1:
(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in article 1;
(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having . . . a particular age . . . at a particular disadvantage compared with other persons unless:
(i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, . . .”
Thus it can be seen that the possibility of justification is built into the very concept of indirect discrimination in a way which is familiar from the prohibition of discrimination on other grounds. The possibility of justification of direct discrimination is not built into the concept itself, but has to be found elsewhere. Article 2(5) provides the familiar general exception that:
“This Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others.”
Article 4(1) makes the familiar general exception for genuine occupational requirements:
“. . . Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in article 1 shall not constitute discrimination where, by reason of the 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.”
Both of these exceptions feature in some of the case law of the European Court of Justice but they have not featured in this case. We are concerned with article 6, which makes special provision for the justification of differences of treatment on grounds of age. Only article 6(1) is relevant to this case:
“1. 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.
Such differences of treatment may include, among others:
(a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;
(b) the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment;
(c) the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.”
Article 6 contemplates provision being made by the Member States, “within the context of national law”, but article 18 contemplates that alternatively they “may entrust the social partners, at their joint request, with the implementation of this Directive as regards provisions concerning collective agreements”. This has no direct relevance in the United Kingdom where collective agreements are not legally enforceable, but it serves to explain why all the cases before the European Court of Justice have concerned the provisions either of national law or of collective agreements.
The United Kingdom has implemented the Directive through the 2006 Age Regulations. Principally relevant is regulation 3, which defines age discrimination:
“(1) For the purposes of these Regulations, a person (‘A’) discriminates against another person (‘B’) if—
(a) on grounds of B’s age, A treats B less favourably than he treats or would treat other persons, or
(b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as B, but—
(i) which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons, and
(ii) which puts B at that disadvantage,
and A cannot show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of achieving a legitimate aim.
(2) A comparison of B’s case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.
(3) In this regulation –
(a) ‘age group’ means a group of persons defined by reference to age, whether by reference to a particular age or a range of ages; and . . . “
Also relevant is regulation 17, which makes unlawful certain acts of discrimination by partnerships:
“(1) It is unlawful for a firm, in relation to a position as partner in the firm, to discriminate against a person— . . .
(d) in a case where the person already holds that position—
(i) in the way they afford him access to any benefits or by refusing to afford, or deliberately not affording, him access to them; or
(ii) by expelling him from that position, or subjecting him to any other detriment.”
It is not in dispute that enforcing a retirement age would be unlawful within regulation 17 if it amounts to unjustified discrimination within regulation 3.
Although it did not apply to partners, it is also relevant to note that at the material time, regulation 30 provided for a designated retirement age for employees:
“(1) This regulation applies in relation to an employee within the meaning of section 230(1) of the [Employment Rights Act 1996], a person in Crown employment, a relevant member of the House of Commons staff, and a relevant member of the House of Lords staff.
(2) Nothing in Part 2 or 3 shall render unlawful the dismissal of a person to whom this regulation applies at or over the age of 65 where the reason for the dismissal is retirement.”
Regulation 30 did not preclude an employer from having an earlier retirement age, but it would have to be justified under regulation 3. Nor did it require an employer to retire an employee at that age. It simply meant that an employer could do so without having to justify it under regulation 3. By regulation 47 and Schedule 6 to the Regulations, an employer who intended to retire an employee on a particular date had to give the employee between six and 12 months’ notice of that intention; the employee had a statutory right to request not to retire on that date and to continue working either indefinitely or for a stated period; the employer had then to take the request seriously, meet with the employee to discuss it, and give the employee a right of appeal if it was turned down.
The Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 (SI 2011/1069) phase out the designated retirement age in regulation 30, so that (at the latest from October 2012) there is no longer any self-justifying retirement age for employees. Employees will therefore be in the same position as partners, to whom regulation 30 has never applied. The principles governing the approach to the justification of compulsory retirement ages are therefore relevant to a much larger section of the working population than they were when these proceedings were begun. This particular retirement has of course to be considered as at the date when it took place, on 31 December 2006.
Legitimate aims
The principal case advanced on behalf of Mr Seldon is that regulation 3 is inconsistent with the Directive, for two inter-linked reasons. The first is that it combines the justification of direct and indirect discrimination in a single familiar phrase: “and A cannot show the treatment or, as the case may be, the provision, criterion or practice to be a proportionate means of achieving a legitimate aim”. The Directive, on the other hand, draws a careful distinction. Article 2 prohibits all direct discrimination and all indirect discrimination where the provision etc cannot be justified. Article 6 contains a special rule for age discrimination, which although literally applying to both direct and indirect discrimination, is most likely to apply to direct discrimination. Regulation 3 has impermissibly elided the two types of justification.
The second reason is that article 6 contemplates that the justifications for direct age discrimination should be the broad social and economic policy objectives of the state (or, elsewhere in Europe, the social partners) and not the individual business needs of particular employers or partnerships. This point was most clearly articulated in reply. The problem is that the social policy aims may conflict: there is the need to get young people into the workforce and there is the need to enable older people to continue working for as long as they are able and wish to do so. Only the state (or the social partners) can make the choice between these conflicting aims and that is clearly what is contemplated by article 6.
The respondent firm points out that regulation 3 was held by Blake J to be a proper implementation of the Directive in R (Age UK) v Secretary of State for Business, Innovation and Skills (Equality and Human Rights Commission and another intervening) [2009] EWHC 2336 (Admin), [2010] ICR 260 (“Age UK”) after a reference to the Luxembourg Court. And the jurisprudence has made plain that aims analogous to those found in fact to be the aims of the firm are capable of being legitimate aims in this context.
The Secretary of State accepts that only certain kinds of aim are capable of justifying direct age discrimination and that the apparently broad terms of regulation 3 must be read down accordingly. The distinction drawn in the evolving case law of the European Court of Justice/Court of Justice of the European Union (“Luxembourg”) is between aims relating to “employment policy, the labour market or vocational training”, which are legitimate, and “purely individual reasons particular to the employer’s situation, such as cost reduction or improving competitiveness”, which in general are not.
It is necessary, therefore, to turn to the developing Luxembourg jurisprudence, coupled with its application to these Regulations in the Age UK case. It is helpful to do so chronologically.
The jurisprudence
Age Concern England (which later became Age UK) brought its challenge to the Regulations in July 2006, just after they had been made. Their principal target was the designated retirement age in regulation 30, but they also attacked regulation 3 on the ground that it was necessary for the state to spell out the circumstances in which age discrimination might be justified. At that stage it was not clear whether the Directive covered retirement ages at all. Recital 14 states that the Directive “shall be without prejudice to national provisions laying down retirement ages”. In July 2007, therefore, the administrative court referred five questions to Luxembourg, the first three of which concerned whether the Directive did cover retirement ages, the fourth asked whether article 6 required the state to specify the kinds of differences in treatment on grounds of age which might be justified, and the last asked whether there was any significant difference between the test in article 2(2) and the test in article 6(1).
In October 2007, the Grand Chamber in Luxembourg gave judgment in Félix Palacios de la Villa v Cortefiel Servicios SA, Case C-411/05, [2009] ICR 1111. Spain had legislated for compulsory retirement when it wanted to encourage recruitment; then abolished it when economic circumstances improved and it wanted to encourage people to stay in work; and then reintroduced it by allowing collective agreements to prescribe retirement ages, provided that the worker had qualified for a retirement pension. The Court held that, despite recital 14, requiring retirement at a particular age is direct age discrimination within the meaning of article 2(1) and 2(2)(a) and has therefore to be justified. But this did not preclude national legislation allowing for this, even if the social policy aims were not spelled out in the legislation, as long as it could be decided from the context and other sources what those aims were. The encouragement of recruitment was a legitimate aim. The means employed had still to be both appropriate and necessary, although member states (and where appropriate social partners) enjoyed a broad discretion in the choice both of the aims and of the means to pursue them. The measure in question did not unduly prejudice the legitimate claims of the workers because it was based, not only on a specific age, but also on having qualified for a pension.
Not surprisingly, therefore, when the Third Chamber (with Judge Lindh as juge rapporteur) came to decide the Age Concern reference, in R (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform, Case C-388/07 [2009] ICR 1080 (“Age Concern”), it held that member states were not required to draw up a list of differences in treatment which might be justified by a legitimate aim [43]. Lack of precision as to the aims which might be considered legitimate did not automatically preclude justification, although it was necessary to be able to identify the aim in order to review whether it was legitimate and the means of achieving it were appropriate and necessary [44, 45]. However, at [46], much relied upon on behalf of Mr Seldon:
“It is apparent from article 6(1) of Directive 2000/78 that the aims which may be considered ‘legitimate’ within the meaning of that provision … are social policy objectives, such as those related to employment policy, the labour market or vocational training. By their public interest nature, those legitimate aims are distinguishable from purely individual reasons particular to the employer’s situation, such as cost reduction or improving competitiveness, although it cannot be ruled out that a national rule may recognise, in the pursuit of those legitimate aims, a certain degree of flexibility for employers.”
As to the fifth question, as the dispute was about the retirement age provisions, it was not necessary to interpret article 2(2)(b) which was concerned with indirect discrimination [63, 64]. But the Court did observe that the scope of article 2(2)(b) and article 6(1) is not identical [58]. In another passage at [65], also much relied upon on behalf of Mr Seldon, it pointed out that:
“. . . it is important to note that [article 6(1)] is addressed to the member states and imposes on them, notwithstanding their broad discretion in matters of social policy, the burden of establishing to a high standard of proof the legitimacy of the aim pursued.”
Before Age UK came back before the administrative court, the Third Chamber (again with Judge Lindh as juge rapporteur) decided the case of David Hütter v Technische Universität Graz, Case C-88/08 [2009] All ER (EC) 1129. The law governing public service stipulated that service before the age of 18 was not to be taken into account in determining the pay grade. This discriminated against those who had undertaken apprenticeships in the public sector compared with those who had stayed in general education. The aims of not discouraging people to stay in secondary education, of not making apprenticeship costly for the public sector, and of promoting the integration of young apprentices into the labour market (see [16]) were social policy aims of the kind which could be justification under article 6(1) [43]. But those aims were contradictory [46] and the law was not “appropriate” to achieve them [50]. This case therefore illustrates that it is not enough for the aims of a measure to be legitimate: the measure must still be carefully scrutinised to ensure that it is both “appropriate” to meeting those aims and a proportionate means of doing so.
The Grand Chamber (again with Judge Lindh as juge rapporteur) decided three cases in January 2010, after Advocate General Bot had given his opinions in July and September 2009. Petersen v Berufungsausschuss für Zahnärzte für den Bezirk Westfalen-Lippe, Case C-341/08, [2010] 2 CMLR 31 concerned a law which prohibited practice as a panel dentist after reaching the age of 68. Both protecting the health of patients and controlling public health expenditure were legitimate objectives under the exception in article 2(5) for measures “necessary . . . for the protection of health”. Prohibiting practice as a panel dentist but not private practice over the age of 68 was inconsistent with the former aim but not inconsistent with the latter [63, 64]. The other possible aim, of sharing out employment opportunities between the generations, could be regarded as an employment policy measure under article 6(1) [68]. It might be necessary to impose such an age limit where there were too many panel dentists or a “latent risk” of such [73, 77]. Having given that guidance, the court repeated that it was for the national court to identify the aim which was actually being pursued by the measure [78].
Wolf v Stadt Frankfurt am Main, Case C-229/08 [2010] 2 CMLR 32 concerned a regulation of the Land Hessen setting an age limit of 30 for recruitment as a firefighter. Although the referring court had asked about justification under article 6(1), the Luxembourg court considered that it could be justified under article 4(1), because the physical capabilities required for the job were related to age.
Kücükdeveci v Swedex GmbH & Co KG, Case C-555/07, [2011] 2 CMLR 33 was about a law which calculated the length of notice to which employees were entitled by reference to their length of service but disregarding any period of service below the age of 25. The aim of facilitating the recruitment of young people, who could react more easily to the loss of their jobs, by increasing the flexibility of personnel management did “belong to employment and labour market policy” within the meaning of article 6(1) [35, 36]; but the law was not “appropriate” to that aim because it applied to all employees who joined before 25 irrespective of their age at dismissal [40]. Nor was it appropriate to the aim of strengthening the protection of workers according to their length of service [41].
It is worth noting that Advocate General Bot had found it difficult to accept that the flexibility granted to employers could be an aim in itself, because the Court in Age Concern had made it clear that legitimate objectives are of a public interest nature [AG44-49]. The Court did not expressly endorse this, but the aim it was considering was more than mere flexibility – it was flexibility designed to encourage the recruitment of young people.
When Blake J came to decide Age UK in September 2009, he had the decisions in Palacios de la Villa, Age Concern, and Hütter, coupled with the Advocate General’s opinion in Kücükdeveci, to guide him in deciding whether regulations 3 and 30 were compatible with the Directive. Clearly, a regulation in such general terms as regulation 3 was not precluded, provided that it could be justified. He concluded that the Government’s aim in promoting the regulations was to “preserve the confidence and integrity of the labour market” and that this was a legitimate aim for the purpose of article 6(1). In the context of regulation 3 he pointed out that the “private employer is not allowed the wider margin of discretion in the application of the regulation that the state is” [92] and that there was “a clear distinction between the government as a public body being concerned about the social cost to competitiveness of UK employment in the early phase of implementing the new principles and policies of the Directive, and individual business saying it is cheaper to discriminate than to address the issues that the Directive requires to be addressed” [93]. In the context of regulation 30, he concluded that while a designated retirement age could be justified, it was harder to justify adopting the age of 65. Had this been done for the first time in 2009 or there was no indication of an early review, he would have concluded that it was not proportionate [128]. As things were in 2006, however, it was not beyond the competence of government [129]. But he correctly predicted that the age would not survive the review [130]. As we have seen, of course, the whole concept of a designated retirement age has not survived.
In October 2010 the Grand Chamber (again with Judge Lindh as juge rapporteur) decided two more age discrimination cases. Rosenbladt v Oellerking GmbH, Case C-45/09, [2011] 1 CMLR 32, is much relied upon by the respondent firm and the Secretary of State. The dispute was about a clause in the collective agreement for employees in the commercial cleaning sector (RTV) which provided for automatic termination when an employee became entitled to a retirement pension and at the latest at the end of the month when she reached 65. Para 10.5 of the General Law on Equal Treatment (AGG) listed agreements providing for automatic termination on reaching the age when an employee might claim an old age pension among the examples of differences in treatment which might be justified if necessary and appropriate for a legitimate aim.
The Court held that the aims of sharing employment between the generations, making it easier for younger workers to find work, particularly in a time of chronic unemployment, while protecting the rights of older workers whose pensions serve as replacement income, and not requiring employers to dismiss them on grounds of incapacity, which may be humiliating [43] were in principle capable of objectively and reasonably justifying a difference in treatment on grounds of age [45]. Authorising clauses like this could not generally be regarded as prejudicing the legitimate interests of the workers concerned [47]. It is based not only on age but also on entitlement to a replacement income [48]. Also, unlike dismissal or resignation, it has its basis in an agreement.
“That allows not only employees and employers, by means of individual agreements, but also the social partners, by means of collective agreements – and therefore with considerable flexibility – to opt for application of that mechanism so that due account may be taken not only of the overall situation in the labour market concerned, but also of the specific features of the jobs in question (Palacios de la Villa, [74]).” [49]
So article 6(1) did not preclude a measure such as paragraph 10.5 of the national law; but the collective agreement implementing it must itself pursue a legitimate aim in an appropriate and necessary manner [53]. The clause offered stability of employment and the promise of foreseeable retirement while offering employers “a certain flexibility” in the management of their staff, thus reflecting “a balance between diverging but legitimate interests, against a complex background of employment relationships closely linked to political choices in the area of retirement and employment” [68]. So it was not unreasonable for social partners to regard the clause as appropriate [69]. But was it necessary, given the significant financial hardship caused to workers in the commercial cleaning sector, where poorly paid part time employment is typical [71]? Were there less onerous measures? People who had reached retirement age could continue to work, and must not be discriminated against on grounds of age in finding work [74], so they were not forced to withdraw from the labour market [75]. So the measure was not precluded. There is no suggestion that its actual application to Frau Rosenbladt, who needed to carry on working because her pension was so small, had also to be justified.
In contrast, in Ingeniørforeningen i Danmark v Region Syddanmark, Case C-499/08 [2011] 1 CMLR 35, the Grand Chamber (again with Judge Lindh as juge rapporteur) held that a Danish law on severance allowances, which did not apply to people dismissed when they had qualified for a retirement pension, was not justified. The general (and legitimate) aim of the severance allowances was to facilitate the move to new employment of people who might find it difficult to find new employment because of the length of time they had been with their old employer. Excluding people who had qualified for a pension and who actually intended to retire was not inappropriate [34, 35]. But it was not necessary to exclude those who wished to waive their pension claims in order to try to continue working [44–47].
In Georgiev v Tehnicheski Universitet Sofia, Filial Plovdiv, Joined Cases C-250/09 & C-268/09 [2011] 2 CMLR 7, the Second Chamber (again with Judge Lindh as juge rapporteur) held that article 6(1) did not preclude national legislation under which university professors are compulsorily retired when they reach 68 and may only work beyond 65 on one year fixed term contracts renewable at most twice, provided that it pursued a legitimate aim linked to employment and labour market policy, such as the delivery of quality teaching and the best possible allocation of posts for professors between the generations and that it makes it possible to achieve that aim by appropriate and necessary means [68]. Given that the average age of Bulgarian professors was 58 and younger people were not interested in entering the career, it was for the national court to decide whether these actually were the aims of the Bulgarian legislature.
The second chamber (again with Judge Lindh as juge rapporteur) had to consider a very similar law of the Land Hessen, providing for the compulsory retirement of civil servants, including state prosecutors, in Fuchs and another v Land Hessen, Joined Cases C-159/10 and C-160/10, [2011] 3 CMLR 47. The claimed aims were to achieve a balance between the generations, plus the efficient planning of the departure and recruitment of staff, encouraging the recruitment or promotion of young people, and avoiding disputes about older employees’ ability to perform their duties [47]; and also to promote interchange between the experience of older colleagues and the recently acquired knowledge of younger ones [48]. All of these could constitute legitimate aims [49], [50].
The court repeated the general propositions about the nature of legitimate aims in Age Concern [46] at [52]. But it went on to issue some words of warning. Member states may not frustrate the prohibition of discrimination on grounds of age, read in the light of the fundamental right to engage in work [62]. Particular attention must be paid to the participation of older workers in the labour force and thus in economic, cultural and social life. Keeping older workers in the labour force promotes diversity, and contributes to realising their potential and to their quality of life [63]. This interest must be taken into account in respecting the other, potentially divergent, interests [64].
“Therefore, in defining their social policy on the basis of political, economic, social, demographic and/or budgetary considerations, the national authorities concerned may be led to choose to prolong people’s working life or, conversely, to provide for early retirement (see Palacios de la Villa, [68] and [69]). The Court has held that it is for those authorities to find the right balance between the different interests involved, while ensuring that they did not go beyond what is appropriate and necessary to achieve the legitimate aim pursued (…Palacios de la Villa … [69], [71] …Rosenbladt… [44]).” [65]
Budgetary considerations might underpin the chosen social policy, but they could not in themselves constitute a legitimate aim within article 6(1) [74].
This measure might be appropriate to the aim of facilitating access to employment by younger people, in a profession where the number of posts is limited (citing Petersen and Georgiev) [58, 59, 60]. Nor did it go beyond what was necessary to achieve its aims, given that the prosecutors could retire at 65 on generous pensions, continue working until 68, and practise as lawyers if they left [68].
Hennigs v Eisenbahn-Bundesamt; Land Berlin v Mai, Joined Cases C-297/10 and C-298/10, [2012] 1 CMLR 18, decided by the Second Chamber (again with Judge Lindh as juge rapporteur) in September 2011, is another example of a finding that determining pay grades by reference to age at first appointment could not be justified. Rewarding experience was a legitimate aim (see Hütter), but while length of service was appropriate to achieve that aim, age did not always correlate with experience [74, 75, 76].
Finally, in Prigge and others v Deutsche Lufthansa AG, Case C-447/09 [2011] IRLR 1052, the Grand Chamber (again with Judge Lindh as juge rapporteur) found that a collective agreement providing for the employment of Lufthansa pilots to terminate automatically at the age of 65 could not be justified. This was not an article 6(1) case, as the suggested aims had to do with the safety and security of air travel, which fell within article 2(5), or the physical capabilities required for flying a plane, which fell within article 4(1). But as neither international nor national legislation considered that an absolute ban at the age of 65 was necessary to achieve these aims, it could not be justified.
What messages, then, can we take from the European case law?
(1) All the references to the European Court discussed above have concerned national laws or provisions in collective agreements authorised by national laws. They have not concerned provisions in individual contracts of employment or partnership, as this case does. However, the Bartsch case, mentioned at [2] above, did concern the rules of a particular employers’ pension fund; and the Prigge case, [49] above, concerned a collective agreement governing the employees of a single employer, Deutsche Lufthansa.
(2) If it is sought to justify direct age discrimination under article 6(1), the aims of the measure must be social policy objectives, such as those related to employment policy, the labour market or vocational training. These are of a public interest nature, which is “distinguishable from purely individual reasons particular to the employer’s situation, such as cost reduction or improving competitiveness” (Age Concern, Fuchs).
(3) It would appear from that, as Advocate General Bot pointed out in Kücükdeveci, that flexibility for employers is not in itself a legitimate aim; but a certain degree of flexibility may be permitted to employers in the pursuit of legitimate social policy objectives.
(4) A number of legitimate aims, some of which overlap, have been recognised in the context of direct age discrimination claims:
(i) promoting access to employment for younger people (Palacios de la Villa, Hütter, Kücükdeveci);
(ii) the efficient planning of the departure and recruitment of staff (Fuchs);
(iii) sharing out employment opportunities fairly between the generations (Petersen, Rosenbladt, Fuchs);
(iv) ensuring a mix of generations of staff so as to promote the exchange of experience and new ideas (Georgiev, Fuchs);
(v) rewarding experience (Hütter, Hennigs);
(vi) cushioning the blow for long serving employees who may find it hard to find new employment if dismissed (Ingeniørforeningen i Danmark);
(vii) facilitating the participation of older workers in the workforce (Fuchs, see also Mangold v Helm, Case C-144/04 [2006] 1 CMLR 43);
(viii) avoiding the need to dismiss employees on the ground that they are no longer capable of doing the job which may be humiliating for the employee concerned (Rosenbladt); or
(ix) avoiding disputes about the employee’s fitness for work over a certain age (Fuchs).
(5) However, the measure in question must be both appropriate to achieve its legitimate aim or aims and necessary in order to do so. Measures based on age may not be appropriate to the aims of rewarding experience or protecting long service (Hütter, Kücükdeveci, Ingeniørforeningen i Danmark).
(6) The gravity of the effect upon the employees discriminated against has to be weighed against the importance of the legitimate aims in assessing the necessity of the particular measure chosen (Fuchs).
(7) The scope of the tests for justifying indirect discrimination under article 2(2)(b) and for justifying any age discrimination under article 6(1) is not identical. It is for the member states, rather than the individual employer, to establish the legitimacy of the aim pursued (Age Concern).
Issues 1 and 3
Not surprisingly, in view of the way in which regulation 3 is constructed, the ET in this case approached the task of justifying direct age discrimination in the way that was familiar to them in the context of indirect discrimination on other grounds (as to which see Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15). They did not, of course, have the benefit of any of the subsequent jurisprudence either in Luxembourg or the UK. It now seems clear that the approach to justifying direct age discrimination cannot be identical to the approach to justifying indirect discrimination and that regulation 3 (and its equivalent in section 13(2) of the Equality Act 2010) must be read accordingly.
In Age Concern, the Court recorded the submission of the EU Commission that in article 6, the focus is on the legitimate aim pursued by the member state, whereas in article 2(2)(b) the focus is on whether the employer can justify his employment practices [57]. The Court did not expressly approve that, but it did say that the scope of the two is not identical [58] and that article 6 is addressed to member states [67]. (It is also worth noting that in Ingeniørforeningen i Danmark, Advocate General Kokott pointed out that the objectives which might be relied upon to justify direct discrimination, whether under article 6(1), 4(1) or 2(5), were “fewer than those capable of justifying an indirect difference in treatment, even though the proportionality test requirements are essentially the same” [AG31].)
But what exactly does this mean in practical terms? On the one hand, Luxembourg tells us that the choice of social policy aims is for the member states to make. It is easy to see why this should be so, given that the possible aims may be contradictory, in particular between promoting youth employment and prolonging the working life of older people. On the other hand, however, Luxembourg has sanctioned a generally worded provision such as regulation 3, which spells out neither the aims nor the means which may be justified. It is also easy to see why this should be so, given that the priority which might be attached to particular aims is likely to change with the economic, social and demographic conditions in the country concerned.
In Age UK, Blake J identified the state’s aim, in relation both to regulation 3 and to the designated retirement age in regulation 30, as being to preserve the confidence and integrity of the labour market. This is not an easy concept to understand, and there is a risk that it might be taken as allowing employers to continue to do whatever suits them best. But it is, as Advocate General Bot observed in Kücükdeveci, difficult to see how granting flexibility to employers can be a legitimate aim in itself, as opposed to a means of achieving other legitimate aims. Furthermore, the Secretary of State accepts that there is a distinction between aims such as cost reduction and improving competitiveness, which would not be legitimate, and aims relating to employment policy, the labour market and vocational training, which would.
It seems, therefore, that the United Kingdom has chosen to give employers and partnerships the flexibility to choose which objectives to pursue, provided always that (i) these objectives can count as legitimate objectives of a public interest nature within the meaning of the Directive and (ii) are consistent with the social policy aims of the state and (iii) the means used are proportionate, that is both appropriate to the aim and (reasonably) necessary to achieve it.
Two different kinds of legitimate objective have been identified by the Luxembourg court. The first kind may be summed up as inter-generational fairness. This is comparatively uncontroversial. It can mean a variety of things, depending upon the particular circumstances of the employment concerned: for example, it can mean facilitating access to employment by young people; it can mean enabling older people to remain in the workforce; it can mean sharing limited opportunities to work in a particular profession fairly between the generations; it can mean promoting diversity and the interchange of ideas between younger and older workers.
The second kind may be summed up as dignity. This has been variously put as avoiding the need to dismiss older workers on the grounds of incapacity or underperformance, thus preserving their dignity and avoiding humiliation, and as avoiding the need for costly and divisive disputes about capacity or underperformance. Either way, it is much more controversial. As Age UK argue, the philosophy underlying all the anti-discrimination laws is the dignity of each individual, the right to be treated equally irrespective of either irrational prejudice or stereotypical assumptions which may be true of some but not of others. The assumptions underlying these objectives look suspiciously like stereotyping. Concerns about capacity, it is argued, are better dealt with, as they were in Wolf and Prigge under article 4(1), which enables them to be related to the particular requirements of the job in question.
I confess to some sympathy with the position taken by Age UK. The fact that most women are less physically strong than most men does not justify refusing a job requiring strength to a woman candidate just because she is a woman. The fact that this particular woman is not strong enough for the job would justify refusing it to her. It would be consistent with this principle to hold that the fact that most people over a certain age have slower reactions than most people under that age does not justify sacking everyone who reaches that age irrespective of whether or not they still do have the necessary speed of reaction. But we know that the Luxembourg court has held that the avoidance of unseemly debates about capacity is capable of being a legitimate aim. The focus must therefore turn to whether this is a legitimate aim in the particular circumstances of the case.
The fact that a particular aim is capable of being a legitimate aim under the Directive (and therefore the domestic legislation) is only the beginning of the story. It is still necessary to inquire whether it is in fact the aim being pursued. The ET, EAT and Court of Appeal considered, on the basis of the case law concerning indirect discrimination (Schönheit v Stadt Frankfurt am Main, Joined Cases C-4/02 and C-5/02, [2004] IRLR 983; see also R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213), that the aim need not have been articulated or even realised at the time when the measure was first adopted. It can be an ex post facto rationalisation. The EAT also said this [50]:
“A tribunal is entitled to look with particular care at alleged aims which in fact were not, or may not have been, in the rule-maker’s mind at all. But to treat as discriminatory, what might be a clearly justified rule on this basis would be unjust, would be perceived to be unjust, and would bring discrimination law into disrepute.”
There is in fact no hint in the Luxembourg cases that the objective pursued has to be that which was in the minds of those who adopted the measure in the first place. Indeed, the national court asked that very question in Petersen. The answer given was that it was for the national court “to seek out the reason for maintaining the measure in question and thus to identify the objective which it pursues” [42] (emphasis supplied). So it would seem that, while it has to be the actual objective, this may be an ex post facto rationalisation.
Once an aim has been identified, it has still to be asked whether it is legitimate in the particular circumstances of the employment concerned. For example, improving the recruitment of young people, in order to achieve a balanced and diverse workforce, is in principle a legitimate aim. But if there is in fact no problem in recruiting the young and the problem is in retaining the older and more experienced workers then it may not be a legitimate aim for the business concerned. Avoiding the need for performance management may be a legitimate aim, but if in fact the business already has sophisticated performance management measures in place, it may not be legitimate to avoid them for only one section of the workforce.
Finally, of course, the means chosen have to be both appropriate and necessary. It is one thing to say that the aim is to achieve a balanced and diverse workforce. It is another thing to say that a mandatory retirement age of 65 is both appropriate and necessary to achieving this end. It is one thing to say that the aim is to avoid the need for performance management procedures. It is another to say that a mandatory retirement age of 65 is appropriate and necessary to achieving this end. The means have to be carefully scrutinised in the context of the particular business concerned in order to see whether they do meet the objective and there are not other, less discriminatory, measures which would do so.
Issue 2
This leads to the final issue, which is whether the measure has to be justified, not only in general but also in its application to the particular individual. After all, the regulation applies to a particular act of direct discrimination, where “on grounds of B’s age, A treats B less favourably than he treats or would treat other persons” and “A cannot show the treatment . . . to be a proportionate means of achieving a legitimate aim.” The argument on behalf of Mr Seldon, therefore, is that the partnership, A, had to show that its particular less favourable treatment of him, B, was justified. This could be another distinction between direct and indirect discrimination, because for indirect discrimination the regulation only requires A to show that the “provision, criterion or practice” is a proportionate means of achieving a legitimate aim. Hence, it is argued, the partnership should have to show, not only that the mandatory retirement rule was a proportionate means of achieving a legitimate aim, but also that applying it to Mr Seldon could be justified at the time.
The answer given in the EAT, at [58], with which the Court of Appeal agreed, at [36], was that:
“Typically, legitimate aims can only be achieved by the application of general rules or policies. The adoption of a general rule, as opposed to a series of responses to particular individual circumstances, is itself an important element in the justification. It is what gives predictability and consistency, itself an important virtue.”
Thus the EAT would not rule out the possibility that there may be cases where the particular application of the rule has to be justified, but they suspected that these would be extremely rare.
I would accept that where it is justified to have a general rule, then the existence of that rule will usually justify the treatment which results from it. In the particular context of inter-generational fairness, it must be relevant that at an earlier stage in his life, a partner or employee may well have benefited from a rule which obliged his seniors to retire at a particular age. Nor can it be entirely irrelevant that the rule in question was re-negotiated comparatively recently between the partners. It is true that they did not then appreciate that the forthcoming Age Regulations would apply to them. But it is some indication that at the time they thought that it was fair to have such a rule. Luxembourg has drawn a distinction between laws and regulations which are unilaterally imposed and collective agreements which are the product of bargaining between the social partners on a presumably more equal basis (Rosenbladt, Hennigs).
There is therefore a distinction between justifying the application of the rule to a particular individual, which in many cases would negate the purpose of having a rule, and justifying the rule in the particular circumstances of the business. All businesses will now have to give careful consideration to what, if any, mandatory retirement rules can be justified.
Application to this case
In common with both the EAT and the Court of Appeal, I would pay tribute to the careful judgment of the ET. Their conclusions are particularly impressive given that they were deciding the case in November 2007, before any of the European jurisprudence discussed earlier had emerged. They did approach the justification of direct discrimination in the same way as they would have approached the justification of indirect discrimination, whereas we now know that there is a difference between the two. However, they identified three aims for the compulsory retirement age, which the Court of Appeal summed up as “dead men’s shoes” and “collegiality”. Mr Seldon, with the support of Age UK, has argued that these were individual aims of the business rather than the sort of social policy aims contemplated by the Directive. I do not think that that is fair. The first two identified aims were staff retention and workforce planning, both of which are directly related to the legitimate social policy aim of sharing out professional employment opportunities fairly between the generations (and were recognised as legitimate in Fuchs). The third was limiting the need to expel partners by way of performance management, which is directly related to the “dignity” aims accepted in Rosenbladt and Fuchs. It is also clear that the aims can be related to the particular circumstances of the type of business concerned (such as university teaching, as in Georgiev). I would therefore accept that the identified aims were legitimate.
As to whether the means chosen were proportionate, in the article 6(1) sense of being both appropriate and (reasonably) necessary to achieving those aims, the case is already to go back to the ET on the basis that it had not been shown that the choice of 65 was an appropriate means of achieving the third aim. The question, therefore, was whether the ET would have regarded the first two aims as sufficient by themselves. In answering that question, I would not rule out their considering whether the choice of a mandatory age of 65 was a proportionate means of achieving the first two aims. There is a difference between justifying a retirement age and justifying this retirement age. Taken to extremes, their first two aims might be thought to justify almost any retirement age. The ET did not unpick the question of the age chosen and discuss it in relation to each of the objectives. It would be unduly constraining to deny them the opportunity of doing so now. I would emphasise, however, that they are considering the circumstances as they were in 2006, when there was a designated retirement age of 65 for employees, and not as they are now.
Subject to that observation, I would dismiss this appeal.”
Mangold
[2006] All ER (EC) 383, [2006] IRLR 143 [2006] 1 CMLR 43
“21 Article 5 of that contract provided that:
1. The employment relationship shall start on 1 July 2003 and last until 28 February 2004.
2. The duration of the contract shall be based on the statutory provision which is intended to make it easier to conclude fixed-term contracts of employment with older workers (the provisions of the fourth sentence, in conjunction with those of the fourth sentence, of Paragraph 14(3) of the TzBfG -?), since the employee is more than 52 years old.
3. The parties have agreed that there is no reason for the fixed term of this contract other than that set out in paragraph 2 above. All other grounds for limiting the term of employment accepted in principle by the legislature are expressly excluded from this agreement.-?
22 According to Mr Mangold, paragraph 5, inasmuch as it limits the term of his contract, is, although such a limitation is in keeping with Paragraph 14(3) of the TzBfG, incompatible with the Framework Agreement and with Directive 2000/78.
23 Mr Helm argues that Clause 5 of the Framework Agreement requires the Member States to introduce measures to prevent abuse arising from the use of successive fixed-term contracts of employment, in particular, by requiring objective reasons justifying the renewal of such contracts, or by fixing the maximum total duration of such fixed-term employment relationships or contracts, or by limiting the number of renewals of such contracts or relationships.
24 He takes the view that even if the fourth sentence of Paragraph 14(3) of the TzBfG does not expressly lay down such restrictions in respect of older workers, there is in fact an objective reason, within the meaning of Clause 5(1)(a) of the Framework Agreement, that justifies the conclusion of a fixed-term contract of employment, which is the difficulty those workers have in finding work having regard to the features of the labour market.
25 The Arbeitsgericht München is doubtful whether the first sentence of Paragraph 14(3) of the TzBfG is compatible with Community law.
…….
31 Those were the circumstances in which the Arbeitsgericht München decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
-1(a) Is Clause 8(3) of the Framework Agreement – to be interpreted, when transposed into domestic law, as prohibiting a reduction of protection following from the lowering of the age limit from 60 to 58?
1(b) Is Clause 5(1) of the Framework Agreement – to be interpreted as precluding a provision of national law which – like the provision at issue in this case – does not contain any of the three restrictions set out in paragraph 1 of that clause
2. Is Article 6 of – Directive 2000/78 – to be interpreted as precluding a provision of national law which, like the provision at issue in this case, authorises the conclusion of fixed-term employment contracts, without any objective reason, with workers aged 52 and over, contrary to the principle requiring justification on objective grounds
3. If one of those three questions is answered in the affirmative: must the national court refuse to apply the provision of domestic law which is contrary to Community law and apply the general principle of internal law, under which fixed terms of employment are permissible only if they are justified on objective grounds-
…….
Concerning the questions referred for a preliminary ruling
On Question 1(b)
40 In Question 1(b), which it is appropriate to consider first, the national court asks whether, on a proper construction of Clause 5 of the Framework Agreement, it is contrary to that provision for rules of domestic law such as those at issue in the main proceedings to contain none of the restrictions provided for by that clause in respect of the use of fixed-term contracts of employment.
41 Here it is to be noted that Clause 5(1) of the Framework Agreement is supposed to -prevent abuse arising from the use of successive fixed-term employment contracts or relationships-.
42 Now, as the parties to the main proceedings confirmed at the hearing, the contract is the one and only contract concluded between them.
43 In those circumstances, interpretation of Clause 5(1) of the Framework Agreement is obviously irrelevant to the outcome of the dispute before the national court and, accordingly, there is no need to answer Question 1(b).
On Question 1(a)
44 By Question 1(a), the national court seeks to ascertain whether on a proper construction of Clause 8(3) of the Framework Agreement, domestic legislation such as that at issue in the main proceedings which, on transposing Directive 1999/70, lowered from 60 to 58 the age above which fixed-term contracts of employment may be concluded without restrictions, is contrary to that provision.
45 As a preliminary point, it is to be noted that, in the case in the main proceedings, the contract was concluded on 26 June 2003, that is to say, when the TzBfG, as amended by the Law of 2002 which lowered the age above which it is permissible to conclude fixed-term contracts of employment from 58 to 52, was in force. In the instant case, it is common ground that Mr Mangold was engaged by Mr Helm at the age of 56.
46 Nevertheless, the national court considers that an interpretation of Clause 8(3) would be helpful to it in assessing the validity of the lawfulness of Paragraph 14(3) of the TzBfG, in its original version, in so far as, if that latter provision should not be in keeping with Community law, the result would be that its amendment by the Law of 2002 would be invalid.
47 In any case, it is to be declared that the German legislature had already, when Directive 1999/70 was transposed into domestic law, lowered from 60 to 58 the age at which fixed-term contracts of employment might be concluded.
48 According to Mr Mangold, that reduction of protection, like that under the Law of 2002, is contrary to Clause 8(3) of the Framework Agreement.
49 In contrast, the German Government takes the view that that lowering of the relevant age was offset by giving workers bound by a fixed-term contract new social guarantees, such as the laying down of a general prohibition of discrimination and the extending to small businesses, and to short-term employment relationships, of the restrictions provided for in respect of recourse to that kind of contract.
50 In this connection, it appears from the very wording of Clause 8(3) of the Framework Agreement that implementation of the agreement cannot provide the Member States with valid grounds for reducing the general level of protection for workers previously guaranteed in the domestic legal order in the sphere covered by that agreement.
51 The term -implementation-, used without any further precision in Clause 8(3) of the Framework Agreement, does not refer only to the original transposition of Directive 1999/70 and especially of the Annex thereto containing the Framework Agreement, but must also cover all domestic measures intended to ensure that the objective pursued by the directive may be attained, including those which, after transposition in the strict sense, add to or amend domestic rules previously adopted.
52 In contrast, reduction of the protection which workers are guaranteed in the sphere of fixed-term contracts is not prohibited as such by the Framework Agreement where it is in no way connected to the implementation of that agreement.
53 Now, it is clear from both the order for reference and the observations submitted by the German Government at the hearing that, as the Advocate General has noted in paragraphs 75 to 77 of his Opinion, the successive reductions of the age above which the conclusion of a fixed-term contract is permissible without restrictions are justified, not by the need to put the Framework Agreement into effect but by the need to encourage the employment of older persons in Germany.
54 In those circumstances, the reply to be given to Question 1(a) is that on a proper construction of Clause 8(3) of the Framework Agreement, domestic legislation such as that at issue in the main proceedings which, for reasons connected with the need to encourage employment and irrespective of the implementation of that agreement, has lowered the age above which fixed-term contracts of employment may be concluded without restrictions, is not contrary to that provision.
On the second and third questions
55 By its second and third questions, which may appropriately be considered together, the national court seeks in essence to ascertain whether Article 6(1) of Directive 2000/78 must be interpreted as precluding a provision of domestic law such as that at issue in the main proceedings which authorises, without restriction, unless there is a close connection with an earlier contract of employment of indefinite duration concluded with the same employer, the conclusion of fixed-term contracts of employment once the worker has reached the age of 52. If so, the national court asks what conclusions it must draw from that interpretation.
56 In this regard, it is to be noted that, in accordance with Article 1, the purpose of Directive 2000/78 is to lay down a general framework for combating discrimination on any of the grounds referred to in that article, which include age, as regards employment and occupation.
57 Paragraph 14(3) of the TzBfG, however, by permitting employers to conclude without restriction fixed-term contracts of employment with workers over the age of 52, introduces a difference of treatment on the grounds directly of age.
58 Specifically with regard to differences of treatment on grounds of age, Article 6(1) of Directive 2000/78 provides that the Member States may provide that such differences of treatment -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-. According to subparagraph (a) of the second paragraph of Article 6(1), those differences may include inter alia -the setting of special conditions on access to employment and vocational training, employment and occupation – for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection- and, under subparagraphs (b) and (c), the fixing of conditions of age in certain special circumstances.
59 As is clear from the documents sent to the Court by the national court, the purpose of that legislation is plainly to promote the vocational integration of unemployed older workers, in so far as they encounter considerable difficulties in finding work.
60 The legitimacy of such a public-interest objective cannot reasonably be thrown in doubt, as indeed the Commission itself has admitted.
61 An objective of that kind must as a rule, therefore, be regarded as justifying, -objectively and reasonably-, as provided for by the first subparagraph of Article 6(1) of Directive 2000/78, a difference of treatment on grounds of age laid down by Member States.
62 It still remains to be established whether, according to the actual wording of that provision, the means used to achieve that legitimate objective are -appropriate and necessary-.
63 In this respect the Member States unarguably enjoy broad discretion in their choice of the measures capable of attaining their objectives in the field of social and employment policy.
64 However, as the national court has pointed out, application of national legislation such as that at issue in the main proceedings leads to a situation in which all workers who have reached the age of 52, without distinction, whether or not they were unemployed before the contract was concluded and whatever the duration of any period of unemployment, may lawfully, until the age at which they may claim their entitlement to a retirement pension, be offered fixed-term contracts of employment which may be renewed an indefinite number of times. This significant body of workers, determined solely on the basis of age, is thus in danger, during a substantial part of its members- working life, of being excluded from the benefit of stable employment which, however, as the Framework Agreement makes clear, constitutes a major element in the protection of workers.
65 In so far as such legislation takes the age of the worker concerned as the only criterion for the application of a fixed-term contract of employment, when it has not been shown that fixing an age threshold, as such, regardless of any other consideration linked to the structure of the labour market in question or the personal situation of the person concerned, is objectively necessary to the attainment of the objective which is the vocational integration of unemployed older workers, it must be considered to go beyond what is appropriate and necessary in order to attain the objective pursued. Observance of the principle of proportionality requires every derogation from an individual right to reconcile, so far as is possible, the requirements of the principle of equal treatment with those of the aim pursued (see, to that effect, Case C-476/99 Lommers [2002] ECR I-2891, paragraph 39). Such national legislation cannot, therefore, be justified under Article 6(1) of Directive 2000/78.
66 The fact that, when the contract was concluded, the period prescribed for the transposition into domestic law of Directive 2000/78 had not yet expired cannot call that finding into question.
67 First, the Court has already held that, during the period prescribed for transposition of a directive, the Member States must refrain from taking any measures liable seriously to compromise the attainment of the result prescribed by that directive (Inter-Environnement Wallonie, paragraph 45).
68 In this connection it is immaterial whether or not the rule of domestic law in question, adopted after the directive entered into force, is concerned with the transposition of the directive (see, to that effect, Case C-14/02 ATRAL [2003] ECR I-4431, paragraphs 58 and 59).
69 In the case in the main proceedings the lowering, pursuant to Paragraph 14(3) of the TzBfG, of the age above which it is permissible to conclude fixed-term contracts from 58 to 52 took place in December 2002 and that measure was to apply until 31 December 2006.
70 The mere fact that, in the circumstances of the case, that provision is to expire on 31 December 2006, just a few weeks after the date by which the Member State must have transposed the directive, is not in itself decisive.
71 On the one hand, it is apparent from the very wording of the second subparagraph of Article 18 of Directive 2000/78 that where a Member State, like the Federal Republic of Germany in this case, chooses to have recourse to an additional period of three years from 2 December 2003 in order to transpose the directive, that Member State -shall report annually to the Commission on the steps it is taking to tackle age – discrimination and on the progress it is making towards implementation-.
72 That provision implies, therefore, that the Member State, which thus exceptionally enjoys an extended period for transposition, is progressively to take concrete measures for the purpose of there and then approximating its legislation to the result prescribed by that directive. Now, that obligation would be rendered redundant if the Member State were to be permitted, during the period allowed for implementation of the directive, to adopt measures incompatible with the objectives pursued by that act.
73 On the other hand, as the Advocate General has observed in point 96 of his Opinion, on 31 December 2006 a significant proportion of the workers covered by the legislation at issue in the main proceedings, including Mr Mangold, will already have reached the age of 58 and will therefore still fall within the specific rules laid down by Paragraph 14(3) of the TzBfG, with the result that that class of persons becomes definitively liable to be excluded from the safeguard of stable employment by the use of a fixed-term contract of employment, regardless of the fact that the age condition fixed at 52 will cease to apply at the end of 2006.
74 In the second place and above all, Directive 2000/78 does not itself lay down the principle of equal treatment in the field of employment and occupation. Indeed, in accordance with Article 1 thereof, the sole purpose of the directive is -to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation-, the source of the actual principle underlying the prohibition of those forms of discrimination being found, as is clear from the third and fourth recitals in the preamble to the directive, in various international instruments and in the constitutional traditions common to the Member States.
75 The principle of non-discrimination on grounds of age must thus be regarded as a general principle of Community law. Where national rules fall within the scope of Community law, which is the case with Paragraph 14(3) of the TzBfG, as amended by the Law of 2002, as being a measure implementing Directive 1999/70 (see also, in this respect, paragraphs 51 and 64 above), and reference is made to the Court for a preliminary ruling, the Court must provide all the criteria of interpretation needed by the national court to determine whether those rules are compatible with such a principle (Case C-442/00 Rodríguez Caballero [2002] ECR I-11915, paragraphs 30 to 32).
76 Consequently, observance of the general principle of equal treatment, in particular in respect of age, cannot as such be conditional upon the expiry of the period allowed the Member States for the transposition of a directive intended to lay down a general framework for combating discrimination on the grounds of age, in particular so far as the organisation of appropriate legal remedies, the burden of proof, protection against victimisation, social dialogue, affirmative action and other specific measures to implement such a directive are concerned.
77 In those circumstances it is the responsibility of the national court, hearing a dispute involving the principle of non-discrimination in respect of age, to provide, in a case within its jurisdiction, the legal protection which individuals derive from the rules of Community law and to ensure that those rules are fully effective, setting aside any provision of national law which may conflict with that law (see, to that effect, Case 106/77 Simmenthal [1978] ECR 629, paragraph 21, and Case C-347/96 Solred [1998] ECR I-937, paragraph 30).
78 Having regard to all the foregoing, the reply to be given to the second and third questions must be that Community law and, more particularly, Article 6(1) of Directive 2000/78, must be interpreted as precluding a provision of domestic law such as that at issue in the main proceedings which authorises, without restriction, unless there is a close connection with an earlier contract of employment of indefinite duration concluded with the same employer, the conclusion of fixed-term contracts of employment once the worker has reached the age of 52.
It is the responsibility of the national court to guarantee the full effectiveness of the general principle of non-discrimination in respect of age, setting aside any provision of national law which may conflict with Community law, even where the period prescribed for transposition of that directive has not yet expired.”
Palacios de la Villa v Cortefiel Servicios SA
[2007] IRLR 989, [2009] ICR 1111 [2008] 1 CMLR 16, [2008] All ER (EC) 249
“The dispute in the main proceedings and the questions referred for a preliminary ruling
It is clear from the file transmitted to the Court by the referring court that Mr Palacios de la Villa, who was born on 3 February 1940, worked for Cortefiel from 17 August 1981 as organisational manager.
By letter of 18 July 2005, Cortefiel notified him of the automatic termination of his contract of employment on the ground that he had reached the compulsory retirement age provided for in the third paragraph of Article 19 of the collective agreement and that, on 2 July 2005, Law 14/2005 had been published, the single transitional provision of which authorises such a measure.
It is common ground that, at the date on which his contract of employment with Cortefiel was terminated, Mr Palacios de la Villa had completed the periods of employment necessary to draw a retirement pension under the social security scheme amounting to 100% of his contribution base of EUR 2 347.78, without prejudice to the maximum limits laid down by national legislation.
On 9 August 2005, Mr Palacios de la Villa, taking the view that the notification amounted to dismissal, brought an action before the Juzgado de lo Social No 33, Madrid. In that action, he requested that the measure taken in his regard be declared null and void on the ground that it was in breach of his fundamental rights and, more particularly, his right not to be discriminated against on the ground of age, since the measure was based solely on the fact that he had reached the age of 65.
…………………
In those circumstances, the Juzgado de lo Social No 33, Madrid decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) Does the principle of equal treatment, which prohibits any discrimination whatsoever on the grounds of age and is laid down in Article 13 EC and Article 2(1) of Directive 2000/78, preclude a national law (specifically, the first paragraph of the single transitional provision -) pursuant to which compulsory retirement clauses contained in collective agreements are lawful, where such clauses provide as sole requirements that workers must have reached normal retirement age and must have fulfilled the conditions set out in the social security legislation of the Spanish State for entitlement to a retirement pension under their contribution regime
In the event that the reply to the first question is in the affirmative:
(2) Does the principle of equal treatment, which prohibits any discrimination whatsoever on the grounds of age and is laid down in Article 13 EC and Article 2(1) of Directive 2000/78, require this court, as a national court, not to apply to this case the first paragraph of the single transitional provision -?’
The questions referred for a preliminary ruling
The first question
In order to give a useful reply to that question, it is appropriate to determine, first, whether Directive 2000/78 is applicable to a situation such as that in the main proceedings before examining secondly, and if necessary, whether and to what extent the directive precludes legislation such as that referred to by the national court.
Applicability of Directive 2000/78
As is clear both from its title and preamble and its content and purpose, Directive 2000/78 is designed to lay down a general framework in order to guarantee equal treatment ‘in employment and occupation’ to all persons, by offering them effective protection against discrimination on one of the grounds covered by Article 1, which includes age.
More particularly, it follows from Article 3(1)(c) of Directive 2000/78 that it applies, within the framework of the competence conferred on the Community, ‘to all persons – in relation to employment and working conditions, including dismissals and pay’.
It is true that, according to recital 14 in its preamble, Directive 2000/78 is to be without prejudice to national provisions laying down retirement ages. However, that recital merely states that the directive does not affect the competence of the Member States to determine retirement age and does not in any way preclude the application of that directive to national measures governing the conditions for termination of employment contracts where the retirement age, thus established, has been reached.
The legislation at issue in the main proceedings, which permits the automatic termination of an employment relationship concluded between an employer and a worker once the latter has reached the age of 65, affects the duration of the employment relationship between the parties and, more generally, the engagement of the worker concerned in an occupation, by preventing his future participation in the labour force.
Consequently, legislation of that kind must be regarded as establishing rules relating to ’employment and working conditions, including dismissals and pay’ within the meaning of Article 3(1)(c) of Directive 2000/78.
In those circumstances, Directive 2000/78 is applicable to a situation such as that giving rise to the dispute before the national court.
The interpretation of Articles 2 and 6 of Directive 2000/78
By its first question, the referring court asks essentially whether the prohibition of any discrimination based on age in employment and occupation must be interpreted as meaning that it precludes national legislation such as that in the main proceedings, pursuant to which compulsory retirement clauses contained in collective agreements are regarded as lawful, where such clauses provide as sole requirements that workers must have reached retirement age, set at 65 years by the national legislation, and must fulfil the other social security conditions for entitlement to draw a contributory retirement pension.
In that connection, it should be recalled from the outset that, in accordance with Article 1, the aim of Directive 2000/78 is to combat certain types of discrimination, including discrimination on grounds of age, as regards employment and occupation with a view to putting into effect in the Member States the principle of equal treatment.
Under Article 2(1) of Directive 2000/78, for the purposes of the Directive, the ‘principle of equal treatment’ is to mean that there is to be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1. Article 2(2)(a) states that, for the purposes of paragraph 1, direct discrimination is to be taken to occur where one person is treated less favourably than another person in a comparable situation, on any of the grounds referred to in Article 1.
National legislation such as that at issue in the main proceedings, according to which the fact that a worker has reached the retirement age laid down by that legislation leads to automatic termination of his employment contract, must be regarded as directly imposing less favourable treatment for workers who have reached that age as compared with all other persons in the labour force. Such legislation therefore establishes a difference in treatment directly based on age, as referred to in Article 2(1) and (2)(a) of Directive 2000/78.
Specifically concerning differences of treatment on grounds of age, it is clear from the first subparagraph of Article 6(1) of the directive that such inequalities will not constitute discrimination prohibited under Article 2 ‘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’. The second subparagraph of Article 6(1) sets out several examples of differences of treatment having characteristics such as those mentioned in the first subparagraph and, therefore, compatible with the requirements of Community law.
In this case, it must be observed, as the Advocate General pointed out in point 71 of his Opinion, that the single transitional provision, which allows the inclusion of compulsory retirement clauses in collective agreements, was adopted, at the instigation of the social partners, as part of a national policy seeking to promote better access to employment, by means of better distribution of work between the generations.
It is true, as the national court has pointed out, that that provision does not expressly refer to an objective of that kind.
However, that fact alone is not decisive.
It cannot be inferred from Article 6(1) of Directive 2000/78 that the lack of precision in the national legislation at issue as regards the aim pursued automatically excludes the possibility that it may be justified under that provision.
In the absence of such precision, it is important, however, that other elements, taken from the general context of the measure concerned, enable the underlying aim of that law to be identified for the purposes of judicial review of its legitimacy and whether the means put in place to achieve that aim are appropriate and necessary.
In this case, it is clear from the referring court’s explanations that, first, the compulsory retirement of workers who have reached a certain age was introduced into Spanish legislation in the course of 1980, against an economic background characterised by high unemployment, in order to create, in the context of national employment policy, opportunities on the labour market for persons seeking employment.
Secondly, such an objective was expressly set out in the Tenth Additional Provision.
Thirdly, after the repeal, in the course of 2001, of the Tenth Additional Provision, and following signature by the Spanish Government and employers’ and trade union organisations of the Declaration for Social Dialogue 2004 relating to competitiveness, stable employment and social cohesion, the Spanish legislature reintroduced the compulsory retirement mechanism by Law 14/2005. The aim of Law 14/2005 itself is to create opportunities in the labour market for persons seeking employment. Its single article thus makes it possible, in collective agreements, to include clauses authorising the termination of an employment contract on the ground that the worker has reached retirement age, provided that that measure is ‘linked to objectives which are consistent with employment policy and are set out in the collective agreement’, such as ‘the conversion of temporary contracts into permanent contracts [or] the recruitment of new workers’.
In that context, and given the numerous disputes concerning the repercussions of repeal of the Tenth Additional Provision on compulsory retirement clauses contained in collective agreements concluded under Law 8/1980, both in its original version and that approved by Royal Legislative Decree 1/1995, together with the ensuing legal uncertainty for the social partners, the single transitional provision of Law 14/2005 confirmed that it was possible to set an age-limit for compulsory retirement in accordance with those collective agreements.
Thus, placed in its context, the single transitional provision was aimed at regulating the national labour market, in particular, for the purposes of checking unemployment.
That assessment is further reinforced by the fact that, in this case, the third paragraph of Article 19 of the collective agreement expressly mentions the ‘interests of promoting employment’ as an objective of the measure established by that provision.
The legitimacy of such an aim of public interest cannot reasonably be called into question, since employment policy and labour market trends are among the objectives expressly laid down in the first subparagraph of Article 6(1) of Directive 2000/78 and, in accordance with the first indent of the first paragraph of Article 2 EU and Article 2 EC, the promotion of a high level of employment is one of the ends pursued both by the European Union and the European Community.
Furthermore, the Court has already held that encouragement of recruitment undoubtedly constitutes a legitimate aim of social policy (see, in particular, Case C-208/05 [2007] ECR I-181, paragraph 39) and that assessment must evidently apply to instruments of national employment policy designed to improve opportunities for entering the labour market for certain categories of workers.
Therefore, an objective such as that referred to by the legislation at issue must, in principle, be regarded as ‘objectively and reasonably’ justifying ‘within the context of national law’, as provided for by the first subparagraph of Article 6(1) of Directive 2000/78, a difference in treatment on grounds of age laid down by the Member States.
It remains to be determined whether, in accordance with the terms of that provision, the means employed to achieve such a legitimate aim are ‘appropriate and necessary’.
It should be recalled in this context that, as Community law stands at present, the Member States and, where appropriate, the social partners at national level enjoy broad discretion in their choice, not only to pursue a particular aim in the field of social and employment policy, but also in the definition of measures capable of achieving it (see, to that effect, Case C-144/04 Mangold [2005] ECR I-9981, paragraph 63).
As is already clear from the wording, ‘specific provisions which may vary in accordance with the situation in Member States’, in recital 25 in the preamble to Directive 2000/78, such is the case as regards the choice which the national authorities concerned may be led to make on the basis of political, economic, social, demographic and/or budgetary considerations and having regard to the actual situation in the labour market in a particular Member State, to prolong people’s working life or, conversely, to provide for early retirement.
Furthermore, the competent authorities at national, regional or sectoral level must have the possibility available of altering the means used to attain a legitimate aim of public interest, for example by adapting them to changing circumstances in the employment situation in the Member State concerned. The fact that the compulsory retirement procedure was reintroduced in Spain after being repealed for several years is accordingly of no relevance.
It is, therefore, for the competent authorities of the Member States to find the right balance between the different interests involved. However, it is important to ensure that the national measures laid down in that context do not go beyond what is appropriate and necessary to achieve the aim pursued by the Member State concerned.
It does not appear unreasonable for the authorities of a Member State to take the view that a measure such as that at issue in the main proceedings may be appropriate and necessary in order to achieve a legitimate aim in the context of national employment policy, consisting in the promotion of full employment by facilitating access to the labour market.
Furthermore, the measure cannot be regarded as unduly prejudicing the legitimate claims of workers subject to compulsory retirement because they have reached the age-limit provided for; the relevant legislation is not based only on a specific age, but also takes account of the fact that the persons concerned are entitled to financial compensation by way of a retirement pension at the end of their working life, such as that provided for by the national legislation at issue in the main proceedings, the level of which cannot be regarded as unreasonable.
Moreover, the relevant national legislation allows the social partners to opt, by way of collective agreements – and therefore with considerable flexibility – for application of the compulsory retirement mechanism so that due account may be taken not only of the overall situation in the labour market concerned, but also of the specific features of the jobs in question.
In the light of those factors, it cannot reasonably be maintained that national legislation such as that at issue in the main proceedings is incompatible with the requirements of Directive 2000/78.
Given the foregoing interpretation of Directive 2000/78, there is no need for the Court to give a ruling in relation to Article 13 EC – also referred to in the first question – on the basis of which that directive was adopted.
In the light of all the foregoing considerations, the answer to the first question must be that the prohibition on any discrimination on grounds of age, as implemented by Directive 2000/78, must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, pursuant to which compulsory retirement clauses contained in collective agreements are lawful where such clauses provide as sole requirements that workers must have reached retirement age, set at 65 by national law, and must have fulfilled the conditions set out in the social security legislation for entitlement to a retirement pension under their contribution regime, where
– the measure, although based on age, is objectively and reasonably justified in the context of national law by a legitimate aim relating to employment policy and the labour market, and
– it is not apparent that the means put in place to achieve that aim of public interest are inappropriate and unnecessary for the purpose.”
……
On those grounds, the Court (Grand Chamber) hereby rules:
The prohibition on any discrimination on grounds of age, as implemented by Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, must be interpreted as not precluding national legislation such as that at issue in the main proceedings, pursuant to which compulsory retirement clauses contained in collective agreements are lawful where such clauses provide as sole requirements that workers must have reached retirement age, set at 65 by national law, and must have fulfilled the conditions set out in the social security legislation for entitlement to a retirement pension under their contribution regime, where
– the measure, although based on age, is objectively and reasonably justified in the context of national law by a legitimate aim relating to employment policy and the labour market, and
– the means put in place to achieve that aim of public interest do not appear to be inappropriate and unnecessary for the purpose.”
Rosenbladt
[2010] ECR I-9391, [2011] 1 CMLR 32 [2011] IRLR 51
“36 By its second question, which it is appropriate to consider first, the referring court essentially seeks to know whether Article 6(1) of Directive 2000/78 must be interpreted as meaning that it precludes a national provision such as that in Paragraph 10(5) of the AGG, in so far as that provision provides that clauses on automatic termination of employment contracts on the ground that an employee has reached the age at which he is eligible to retire, may escape the prohibition on discrimination on the grounds of age.
37 As a preliminary point, it must be found that Paragraph 10(5) of the AGG provides for a difference in treatment directly based on age, as referred to in Article 2(2)(a) of Directive 2000/78 (see, to that effect, Case C-411/05 Palacios de la Villa [2007] ECR I’8531, point 51).
38 The first subparagraph of Article 6(1) of Directive 2000/78 states that a difference of treatment on grounds of age does not constitute discrimination if, within the context of national law, it is 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. The second subparagraph of Article 6(2) lists several examples of differences of treatment with characteristics of the sort referred to in the first subparagraph.
39 Paragraph 10 of the AGG essentially incorporates those principles. Point 5 of that provision includes, among the examples of differences in treatment on the grounds of age which may be justified, agreements providing for termination of the employment relationship without notice of termination at a date when the worker may claim a retirement pension because of his age. Such a measure thus does not establish a regime of compulsory retirement but allows employers and employees to agree, by individual or collective agreements, on a means, other than resignation or dismissal, of ending employment relationships on the basis of the age of eligibility for a retirement pension.
40 Article 6(1)(a) of Directive 2000/78 does not include clauses on automatic termination of employment contracts among those appearing on the list of differences of treatment on the grounds of age which may be justified and, for that reason, may be considered not to be discriminatory. However, that fact alone is not decisive as the list is merely a guide. Thus, when the Member States implement the directive, they are not obliged to draw up a specific list of differences in treatment which may be justified by a legitimate aim (Age Concern England, paragraph 43). If, in the exercise of their discretion, they decide to do so, they may include in that list examples of differences in treatment and aims other than those expressly covered by the directive, provided that those aims are legitimate within the meaning of Article 6(1) thereof and are appropriate and necessary to achieve those aims.
41 It should be recalled in this context that the Member States and, where appropriate, the social partners at national level enjoy broad discretion in their choice, not only to pursue a particular aim in the field of social and employment policy, but also in the definition of measures capable of achieving it (see Case C-144/04 Mangold [2005] ECR I-9981, paragraph 63, and Palacios de la Villa, paragraph 68).
42 According to the explanations given by the referring court, it was not the intention of the legislature, when adopting Paragraph 10(5) of the AGG, to call into question, in the name of combating discrimination on the grounds of age, the existing situation, in which clauses on automatic termination of employment contracts when an employee reaches retirement age are widely used. It highlights the fact that such clauses have often been used for decades, regardless of social and demographic conditions and of the situation on the employment market.
43 In the proceedings before the Court of Justice, the German Government observed, inter alia, that the lawfulness of clauses on automatic termination of employment contracts of employees who have reached retirement age, which is also acknowledged in a number of other Member States, is the reflection of a political and social consensus which has endured for many years in Germany. That consensus is based primarily on the notion of sharing employment between the generations. The termination of the employment contracts of those employees directly benefits young workers by making it easier for them to find work, which is otherwise difficult at a time of chronic unemployment. The rights of older workers are, moreover, adequately protected as most of them wish to stop working as soon as they are able to retire, and the pension they receive serves as a replacement income once they lose their salary. The automatic termination of employment contracts also has the advantage of not requiring employers to dismiss employees on the ground that they are no longer capable of working, which may be humiliating for those who have reached an advanced age.
44 It must be observed that the automatic termination of the employment contracts of employees who meet the conditions as regards age and contributions paid for the liquidation of their pension rights has, for a long time, been a feature of employment law in many Member States and is widely used in employment relationships. It is a mechanism which is based on the balance to be struck between political, economic, social, demographic and/or budgetary considerations and the choice to be made between prolonging people’s working lives or, conversely, providing for early retirement (see, to that effect, Palacios de la Villa, paragraph 69).
45 Therefore, aims such as those described by the German Government must, in principle, be regarded as ‘objectively and reasonably’ justifying ‘within the context of national law’, as provided for by Article 6(1) of Directive 2000/78, a difference in treatment on grounds of age such as that provided for by Paragraph 10(5) of the AGG.
46 It remains to be determined whether such a measure is appropriate and necessary within the meaning of Article 6(1) of Directive 2000/78.
47 The authorisation of clauses on automatic termination of employment contracts on the ground that an employee has reached retirement age cannot, generally, be regarded as unduly prejudicing the legitimate interests of the workers concerned.
48 Legislation such as that at issue in the main proceedings is not based only on a specific age, but also takes account of the fact that the persons concerned are entitled to financial compensation by means of a replacement income in the form of a retirement pension at the end of their working life (see, to that effect, Palacios de la Villa, paragraph 73).
49 Moreover, the mechanism of automatic termination of employment contracts provided for by a measure such as that in Paragraph 10(5) of the AGG does not authorise employers to terminate an employment relationship unilaterally when workers reach the age at which they are eligible for payment of a pension. That mechanism, which is distinct from dismissal and resignation, has its basis in an agreement. That allows not only employees and employers, by means of individual agreements, but also the social partners, by means of collective agreements, – and therefore with considerable flexibility – to opt for application of that mechanism so that due account may be taken not only of the overall situation in the labour market concerned, but also of the specific features of the jobs in question (Palacios de la Villa, paragraph 74).
50 The legislation at issue in the main proceedings contains, in addition, a further limitation intended to ensure the consent of employees where clauses on automatic termination of employment contracts may be applied before normal retirement age. Paragraph 10(5) of the AGG authorises clauses on automatic termination of employment contracts for employees who have reached the age at which they become eligible for a retirement pension, ‘without prejudice to Paragraph 41 of the SGB VI’. That provision essentially requires employers to obtain or confirm the consent of workers to any clause on automatic termination of an employment contract on the ground that the employee has reached the age at which he is eligible for a pension, where that age is less than the normal retirement age.
51 In the light of those considerations, it does not appear unreasonable for the authorities of a Member State to take the view that a measure such as the authorisation of clauses on automatic termination of employment contracts on the ground that an employee has reached the age at which he is eligible for a retirement pension, provided for by Paragraph 10(5) of the AGG, may be appropriate and necessary in order to achieve legitimate aims in the context of national employment policy, such as those described by the German Government (see, to that effect, Palacios de la Villa, paragraph 72).
52 That conclusion does not, however, mean that such clauses in a collective agreement are exempt from any effective review by the courts in the light of the provisions of Directive 2000/78 and of the principle of equal treatment. Such review is exercised according to the specific features of the clause being examined. It must be ensured, in respect of each agreement providing for a mechanism for automatic termination of an employment relationship, that the conditions laid down in the first subparagraph of Article 6(1) of that directive, inter alia, are fulfilled. Moreover, Article 16(b) of that directive expressly requires the Member States to take the measures necessary to ensure that ‘any provisions contrary to the principle of equal treatment which are included in contracts or collective agreements … are, or may be, declared null and void or are amended’.
53 Consequently, the answer to the second question is that Article 6(1) of Directive 2000/78 must be interpreted as meaning that it does not preclude a national provision such as Paragraph 10(5) of the AGG, under which clauses on automatic termination of employment contracts on the ground that the employee has reached the age of retirement are considered to be valid, in so far as, first, that provision is objectively and reasonably justified by a legitimate aim relating to employment policy and the labour market and, second, the means of achieving that aim are appropriate and necessary. The implementation of that authorisation by means of a collective agreement is not, as such, exempt from any review by the courts but, in accordance with the requirements of Article 6(1) of that directive, must itself pursue a legitimate aim in an appropriate and necessary manner.
The first and third questions
54 By its first and third questions, which it is appropriate to consider together, the referring court asks, essentially, whether Article 6(1) of Directive 2000/78 precludes the clause on automatic termination of employment contracts laid down by Paragraph 19(8) of the RTV, where an employee has reached retirement age, which is set at 65.
55 The answer to that question turns on whether, first, that measure meets a legitimate aim and, second, whether it is appropriate and necessary within the meaning of Article 6(1) of Directive 2000/78.
56 The referring court explains that, in a judgment of 18 June 2008, the Bundesarbeitsgericht (7 AZR 116/07) held that provision of the RTV to be compatible with Article 6(1) of Directive 2000/78. However it doubts that that solution could be transferred by analogy to the situation at issue in the main proceedings, in so far as that situation post-dates the entry into force of the AGG.
57 The referring court points out that the aims pursued are not specified in the collective agreement at issue in the main proceedings.
58 Where the national legislation in question does not specify the aim pursued, it is important that other elements, taken from the general context of the measure concerned, enable the underlying aim of that measure to be identified for the purposes of review by the courts of whether it is legitimate and whether the means put in place to achieve it are appropriate and necessary (see Palacios de la Villa, paragraph 57, and Age Concern England, paragraph 45).
59 In that connection, the referring court points out that, according to the body representing the interests of the employers in the negotiations on the RTV, Paragraph 19(8) of that collective agreement was intended to give priority to appropriate and foreseeable planning of personnel and recruitment management over the interest of employees in maintaining their financial position.
60 That court also cited the abovementioned judgment of the Bundesarbeitsgericht of 18 June 2008, in which it was made clear that Paragraph 19(8) of the RTV had the aims of facilitating employment for young people, planning recruitment and allowing good management of a firm’s personnel, in a balanced manner according to age.
61 It is therefore appropriate to examine whether those aims may be considered legitimate within the meaning of Article 6(1) of Directive 2000/78.
62 The Court has held that clauses on automatic termination of employment contracts of employees who are eligible to receive a retirement pension may be justified in the context of a national policy seeking to promote better access to employment, by means of better distribution of work between the generations, and, aims of that kind must, in principle, be considered to justify ‘objectively and reasonably’, ‘within the context of national law’, as provided in the first subparagraph of Article 6(1) of Directive 2000/78, a difference in treatment on the ground of age prescribed by Member States (see, to that effect, Palacios de la Villa, paragraphs 53, 65 and 66). It follows that objectives such as those described by the referring court are ‘legitimate’ within the meaning of that provision.
63 Accordingly, it is also necessary to ascertain whether the means used to achieve that aim are ‘appropriate and necessary’.
64 As regards, first, the appropriateness of the clause on the automatic termination of employment of employment contracts under the RTV, the referring court takes the view that, because they are ineffective, clauses of that type do not achieve the aims pursued.
65 As regards the aim relating to the promotion of employment, that court states that clauses on automatic termination of the employment contracts of employees who have reached the age of 65 have been in widespread use for a long time, without, however, having any effect on the level of employment in Germany. Moreover, it observes that Paragraph 19(8) of the RTV does not prohibit an employer from employing people over 65 any more than it requires an employer to replace an employee who has reached the age of 65 with a younger worker.
66 As regards the aim of ensuring a sound structure of the age pyramid in the cleaning sector, the referring court doubts its relevance given that there is no particular risk of an ageing workforce in that sector.
67 In the light of the assessment made by the referring court, it must be observed that the clause on the automatic termination of employment contracts at issue in the main proceedings is the result of an agreement negotiated between employees’ and employers’ representatives exercising their right to bargain collectively which is recognised as a fundamental right (Case C-271/08 Commission v Germany [2010] ECR I-0000, paragraph 37). The fact that the task of striking a balance between their respective interests is entrusted to the social partners offers considerable flexibility, as each of the parties may, where appropriate, opt not to adopt the agreement (see, to that effect, Palacios de la Villa, paragraph 74).
68 By guaranteeing workers a certain stability of employment and, in the long term, the promise of foreseeable retirement, while offering employers a certain flexibility in the management of their staff, the clause on automatic termination of employment contracts is thus the reflection of a balance between diverging but legitimate interests, against a complex background of employment relationships closely linked to political choices in the area of retirement and employment.
69 Accordingly, in the light of the wide discretion granted to the social partners at national level in choosing not only to pursue a given aim in the area of social policy, but also in defining measures to implement it, it does not appear unreasonable for the social partners to take the view that a measure such as Paragraph 19(8) of the RTV may be appropriate for achieving the aims set out above.
70 Secondly, the referring court raises the question whether a clause on the automatic termination of employment contracts, such as that provided for by Paragraph 19(8) of the RTV is necessary.
71 First, the automatic termination of employment contacts causes significant financial hardship to workers in the commercial cleaning sector in general and to Mrs Rosenbladt in particular. As poorly paid part-time employment is a typical feature of this sector, the statutory old-age pension is not sufficient to meet the basic needs of workers.
72 Second, there are less onerous measures than the automatic termination of employment contracts. For instance, as regards the employers’ interest in planning their personnel management policy, the referring court observes that they need only ask their employees whether they plan to work beyond retirement age.
73 In order to examine whether the measure at issue in the main proceedings goes beyond what is necessary for achieving its objective and unduly prejudices the interests of workers who reach the age of 65, when they may obtain liquidation of their pension rights, that measure must be viewed against its legislative background and account must be taken both of the hardship it may cause to the persons concerned and of the benefits derived from it by society in general and the individuals who make up society.
74 According to the explanations given by the referring court and the observations submitted to the Court of Justice, German employment law does not prevent a person who has reached the age at which he is eligible for payment of a pension from continuing to work. Furthermore, according to those explanations, a worker in that position continues to enjoy protection from discrimination on grounds of age under the AGG. The referring court made clear, in that connection, that the AGG prevents a person in Mrs Rosenbladt’s position, after termination of her employment contract on the ground that she has reached retirement age, from being refused employment, either by her former employer or by a third party, on a ground related to her age.
75 Viewed against that background, the termination by operation of law of an employment contract as a result of a measure such as Paragraph 19(8) of the RTV does not have the automatic effect of forcing the persons concerned to withdraw definitively from the labour market. It follows that that provision does not establish a mandatory scheme of automatic retirement (see, to that effect, Age Concern England, paragraph 27). It does not prevent a worker who wishes to do so, for example, for financial reasons, from continuing to work beyond retirement age. It does not deprive employees who have reached retirement age of protection from discrimination on grounds of age where they wish to continue to work and seek a new job.
76 In the light of those arguments, it must be held that a measure such as Paragraph 19(8) of the RTV does not go beyond what is necessary to achieve the aims pursued, given the wide discretion granted to the Member States and the social partners in the area of social policy and employment.
77 Consequently, the answer to the first and third questions is that Article 6(1) of Directive 2000/78 must be interpreted as meaning that it does not preclude a measure such as the automatic termination of employment contracts of employees who have reached retirement age, set at 65, provided for by Paragraph 19(8) of the RTV.
The fourth question
78 By its fourth question, the referring court seeks to know whether the principle of the prohibition of discrimination on grounds of age, as set out in Articles 1 and 2 of Directive 2000/78, precludes a Member State from declaring a collective agreement containing a clause on the automatic termination of employment contracts, like that appearing in Paragraph 19(8) of the RTV, to be of general application, without taking account of the economic, social and demographic situation and the situation on the employment market.
79 Directive 2000/78 does not, as such, govern the conditions under which the Member States may declare a collective agreement to be of general application. However, the Member States are required to ensure, by means of appropriate laws, regulations or administrative provisions, that all workers are able to enjoy fully the protection granted to them by Directive 2000/78 against discrimination on the grounds of age. Article 16(b) of the directive requires Member States to take the necessary measures to ensure that ‘any provisions contrary to the principle of equal treatment which are included in contracts or collective agreements … are, or may be, declared null and void or are amended’. As long as a collective agreement is not contrary to Articles 1 and 2 of Directive 2000/78 the Member State concerned is free to make it compulsory for persons who are not bound as parties to the agreement (see, by analogy, Case C-67/96 Albany [1999] ECR I-5751, paragraph 66).
80 In the light of those considerations, the answer to the fourth question is that Articles 1 and 2 of Directive 2000/78 must be interpreted as meaning that they do not preclude a Member State from declaring a collective agreement containing a clause on the automatic termination of employment contracts, like that at issue in the main proceedings, to be of general application, provided that it does not deprive employees who have reached retirement age of the protection from discrimination on grounds of age conferred on them by those provisions.
Costs
81 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Grand Chamber) hereby rules:
1. Article 6(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that it does not preclude a national provision such as Paragraph 10(5) of the General Law on equal treatment (Allgemeines Gleichbehandlungsgesetz), under which clauses on automatic termination of employment contracts on the ground that the employee has reached the age of retirement are considered to be valid, in so far as, first, that provision is objectively and reasonably justified by a legitimate aim relating to employment policy and the labour market and, second, the means of achieving that aim are appropriate and necessary. The implementation of that authorisation by means of a collective agreement is not, as such, exempt from any review by the courts but, in accordance with the requirements of Article 6(1) of that directive, must itself pursue a legitimate aim in an appropriate and necessary manner.
2. Article 6(1) of Directive 2000/78 must be interpreted as meaning that it does not preclude a measure such as the automatic termination of employment contracts of employees who have reached retirement age, set at 65, provided for by Paragraph 19(8) of the framework collective agreement for employees in the commercial cleaning sector (Allgemeingültiger Rahmentarifvertrag für die gewerblichen Beschäftigten in der Gebäudereinigung).
3. Articles 1 and 2 of Directive 2000/78 must be interpreted as meaning that they do not preclude a Member State from declaring a collective agreement containing a clause on the automatic termination of employment contracts, like that at issue in the main proceedings, to be of general application, provided that it does not deprive employees who have reached retirement age of the protection from discrimination on grounds of age conferred on them by those provisions.”
Georgiev
[2011] 2 CMLR 7
“14 Mr Georgiev began work as a lecturer at the University in 1985.
15 His employment contract was terminated as from 6 February 2006 on the ground that he had reached the retirement age of 65.
16 The academic council of the University, however, authorised Mr Georgiev to continue to work, in accordance with paragraph 11 of the transitional and final provisions of the Law on Higher Education. A new one-year employment contract was therefore concluded for that purpose, specifying that Mr Georgiev would work as a lecturer in the faculty of engineering (‘the contract’).
17 By a supplementary agreement dated 21 December 2006, the contract was extended for one year.
18 In January 2007, Mr Georgiev was appointed to the post of ‘professor’.
19 By a new supplementary agreement dated 18 January 2008, the contract was extended for a further year.
20 In 2009, the year in which Mr Georgiev reached the age of 68, by a decision of the rector of the University, the employment relationship between Mr Georgiev and the University was terminated, in accordance with Article 325(3) of the Labour Code.
21 Mr Georgiev brought two actions before the national court. The first, which forms the basis of Case C-268/09, seeks to establish that the clause in his fixed-term contract, which limited that contract to one year, is null and void and that that contract should be reclassified as a contract of indefinite duration. The second action, which gave rise to Case C-250/09, relates to the decision of the rector of the University terminating Mr Georgiev’s employment relationship with the University once he reached the age of 68.
22 That court stated that it had doubts as regards the interpretation of Article 6 of Directive 2000/78 with a view to disposing of the two cases before it.
23 In those circumstances the Rayonen sad Plovdiv (Plovdiv district court) decided to stay the proceedings and to refer the following questions, the first two of which are common to both cases whereas the third is referred only in Case C-268/09, to the Court of Justice for a preliminary ruling:
‘1. Do the provisions of [Directive 2000/78] preclude the application of a national law which does not permit the conclusion of employment contracts of indefinite duration with professors who have reached the age of 65? In this context and, more precisely, taking Article 6(1) of the directive into consideration, are the measures in Article 7(1)(6) of the Law on Protection against Discrimination, which introduce age limits for employment in specific posts, objectively and reasonably justified by a legitimate aim, and proportionate, bearing in mind that the directive has been fully transposed into Bulgarian law?
2. Do the provisions of [Directive 2000/78] preclude the application of a national law under which professors who have reached the age of 68 are compulsorily retired? In view of the foregoing facts and circumstances of the present case, and if it is found that a conflict exists between the provisions of [Directive 2000/78] and the relevant national legislation which transposed the directive, is it possible that the interpretation of the provisions of Community law results in the national legislation not being applied?
3. Does national law establish the reaching of the specified age as the sole condition for the termination of the employment relationship of indefinite duration and for the possibility that the relationship can be continued as a fixed-term employment relationship between the same worker and employer for the same post? Does national law establish a maximum duration and a maximum number of extensions of the fixed-term employment relationship with the same employer after the contract of indefinite duration has been converted into a fixed-term contract, beyond which a continuation of the employment relationship between the parties is not possible?’
24 By order of the President of the Court of 14 September 2009, Cases C-250/09 and C-268/09 were joined for the purposes of the written and oral procedure and of the judgment.
Consideration of the questions referred
The first two questions
25 By its first two questions, which should be examined together, the national court asks in essence whether Directive 2000/78, in particular Article 6(1) thereof, precludes national legislation, such as that at issue in the main proceedings, under which university professors who have reached the age of 68 are compulsorily retired and may continue working beyond the age of 65 only by means of fixed’term contracts concluded for a period of one year and renewable at most twice. If so, the national court asks whether such national legislation must be disregarded.
26 It must be pointed out at the outset, as is apparent both from its title and the preamble and from its content and purpose, that Directive 2000/78 seeks to lay down a general framework in order to guarantee equal treatment ‘in employment and occupation’ to all persons, by offering them effective protection against discrimination on one of the grounds covered by Article 1 of the directive, which include age.
27 In order to provide an answer to the first two questions, it should be examined whether national legislation such as that at issue in the main proceedings falls within the scope of Directive 2000/78, whether it introduces a difference of treatment on grounds of age and, if so, whether that directive precludes such a difference of treatment.
28 As regards, first, the question whether national legislation such as that at issue in the main proceedings falls within the scope of Directive 2000/78, it follows from Article 3(1)(c) thereof that the directive applies, within the framework of the areas of competence conferred on the European Union, to all persons in relation to employment and working conditions, including dismissals and pay.
29 The national provision which provides for the compulsory retirement of university professors at the age of 68 affects employment and working conditions within the meaning of Article 3(1)(c) of Directive 2000/78 by prohibiting the persons concerned from working beyond that age.
30 The provision relating to the conclusion of fixed-term contracts affects employment and working conditions within the meaning of Article 3(1)(c) of Directive 2000/78 as it precludes university professors over 65 from working under a contract of indefinite duration.
31 Secondly, as regards whether the national legislation at issue in the main proceedings contains a difference of treatment on grounds of age for the purposes of Article 2(1) of Directive 2000/78, it should be recalled that, under that provision, ‘the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1’ of that directive. Article 2(2)(a) of that directive states that, for the purposes of applying Article 2(1), direct discrimination is to be taken to occur where one person is treated less favourably than another person in a comparable situation, on any of the grounds referred to in Article 1.
32 The application of a law which provides for the compulsory retirement of university professors who have reached the age of 68 has the consequence that those persons are being treated less favourably than other persons practising the same profession on the ground that they are over the age of 68. Such a provision introduces a difference of treatment directly on grounds of age for the purposes of Article 2(2)(a) of Directive 2000/78 (see, to that effect, Case C-411/05 Palacios de la Villa [2007] ECR I-8531, paragraph 51).
33 As regards the national provision relating to the application of fixed-term contracts to professors who have reached the age of 65, it must be pointed out that, in imposing that type of employment contract on them and preventing them from continuing working under contracts of indefinite duration, the national legislation at issue in the main proceedings also involves a difference of treatment with regard to them as opposed to younger professors who are not subject to such a prohibition.
34 The argument of the University and the Bulgarian Government, that such legislation is not unfavourable to the professors concerned because it makes it possible for them, where appropriate, to work for another three years after reaching the age at which they may be made to take retirement with a pension, is not capable of undermining the finding in the preceding paragraph. Such a situation does not prevent the employment conditions of those professors, since they no longer have an employment of indefinite duration, from becoming more precarious than those of professors under 65.
35 Thirdly, it must be examined whether the difference of treatment resulting from the application of the provisions of national law at issue in the main proceedings may be justified under Article 6 of Directive 2000/78.
36 In that regard, it is important to bear in mind that the first subparagraph of Article 6(1) of Directive 2000/78 states that differences of treatment on grounds of age are not to 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. The second subparagraph of Article 6(1) lists a number of examples of differences of treatment of the kind referred to in the first subparagraph of Article 6(1).
37 It must, in that regard, be pointed out that the example in point (c) of the second subparagraph of Article 6(1) of Directive 2000/78, which was transposed into Bulgarian national law by Article 7(1)(6) of the Law on Protection against Discrimination to which the national court expressly refers in its first question, does not appear to be relevant in the present case. The dispute in the main proceedings relates to the application of fixed-term contracts as from the age of 65 and therefore to employment conditions after a certain age, and not to a maximum age for recruitment referred to in that law.
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40 That situation does not however mean that that legislation does not pursue a legitimate aim. As the Court has previously held, where the national legislation in question does not specify the aim pursued, it is important that other elements, taken from the general context of the measure concerned, enable the underlying aim of that measure to be identified for the purposes of review by the courts of whether it is legitimate and whether the means put in place to achieve it are appropriate and necessary (see Palacios de la Villa, paragraph 57; Case C-388/07 Age Concern England [2009] ECR I-1569, paragraph 45; and Case C-341/08 Petersen [2010] ECR I-0000, paragraph 40).
41 The University and the Bulgarian Government submit that the national legislation at issue in the main proceedings pursues a social policy aim linked to the training and employment of teaching staff and to the application of a specific labour market policy which takes account of the specific situation of the staff in the discipline concerned, the needs of the university establishment under consideration and the professional abilities of the person covered.
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42 The other Governments which submitted observations to the Court, namely the German and Slovak Governments, and the Commission of the European Communities take the view that the legitimate aim of national legislation such as that at issue in the main proceedings may be the concern to ensure the quality of teaching and research by renewing the teaching staff through the employment of younger professors and to allocate the posts in the best possible way by establishing a balance between the generations.
43 The University and the Bulgarian Government do not clearly specify the aim of that national legislation and, in essence, merely state that it pursues the type of aim referred to in Article 6(1) of Directive 2000/78. It is nevertheless important, in order to assess the compatibility of such legislation with that directive, to identify precisely the aim which it pursues, a task which it is for the national court to carry out.
44 In order to furnish the national court with a helpful reply, account should be taken of the observations submitted by the University and the Bulgarian Government as regards the aim of the national legislation at issue in the main proceedings and also of the observations submitted on that point by the German Government, the Slovak Government and the Commission.
45 In that regard, the training and employment of teaching staff and the application of a specific labour market policy which takes account of the specific situation of the staff in the discipline concerned, put forward by the University and the Bulgarian Government, may be consonant with the intention of allocating the posts for professors in the best possible way between the generations, in particular by appointing young professors. As regards the latter aim, the Court has already held that encouragement of recruitment undoubtedly constitutes a legitimate aim of Member States’ social or employment policy (Palacios de la Villa, paragraph 65), in particular when the promotion of access of young people to a profession is involved (see, to that effect, Petersen, paragraph 68). Consequently, encouragement of recruitment in higher education by means of the offer of posts as professors to younger people may constitute such a legitimate aim.
46 Furthermore, as the Advocate General pointed out in point 34 of his Opinion, the mix of different generations of teaching staff and researchers is such as to promote an exchange of experiences and innovation, and thereby the development of the quality of teaching and research at universities.
47 However, the case-file does not permit the finding that the aims mentioned by the German and Slovak Governments and the Commission correspond to those of the Bulgarian legislature. A doubt exists in particular in the light of Mr Georgiev’s remarks in his written observations. Mr Georgiev submits that the University and the Bulgarian Government merely make assertions and maintains that the legislation at issue in the main proceedings is not aligned to the reality of the labour market concerned. He submits that the average age of university professors is 58 and that there are not more than 1 000 of them, a situation which is explained by the absence of interest on the part of young people in a career as a professor. The legislation at issue in the main proceedings does not, in his view, therefore encourage the recruitment of young people.
48 In that regard it is for the national court to examine the facts and determine whether the aims asserted by the University and the Bulgarian Government correspond to the facts.
49 It still remains to be examined whether the means implemented to achieve such aims are ‘appropriate and necessary’ within the meaning of the first subparagraph of Article 6(1) of Directive 2000/78.
50 In that regard, it must be borne in mind that the Member States enjoy broad discretion in their choice, not only to pursue a particular aim in the field of social and employment policy, but also in the definition of measures capable of achieving it (see Case C-144/04 Mangold [2005] ECR I-9981, paragraph 63, and Palacios de la Villa, paragraph 68).
51 As regards, first, the setting of an age limit of 68, the Court has held, in paragraph 70 of Petersen, that, in view of developments in the employment situation in the sector concerned, it does not appear unreasonable for the authorities of a Member State to consider that the application of an age limit, leading to the withdrawal from the labour market of older practitioners, may make it possible to promote the employment of younger ones and that that age is sufficiently high to serve as the endpoint of admission to practise as a panel dentist.
52 Those findings are also relevant as regards engaging in employment such as that of a university professor. In so far as the posts for university professors are, in general, of a limited number and open only to people who have attained the highest qualifications in the field concerned, and since a vacant post has to be available for a professor to be appointed, the Court takes the view that a Member State may consider it appropriate to set an age limit to achieve aims of employment policy such as those mentioned in paragraphs 45 and 46 of this judgment.
53 It is however for the national court to determine, having regard to the objections submitted by Mr Georgiev and referred to in paragraph 47 of this judgment, whether the situation of university professors in Bulgaria corresponds to the general situation of university professors as described in the preceding paragraph.
54 As for the age limit applied by the national legislation at issue in the main proceedings, namely 68, it is apparent from the case-file that it is five years higher than the statutory age at which men may normally acquire the right to a pension and be made to take retirement in the Member State concerned. It therefore allows university professors, who are offered the opportunity to work until 68, to pursue their careers for a relatively long period. Such a measure cannot be regarded as unduly prejudicing the legitimate claims of workers subject to compulsory retirement because they have reached the age limit provided for; the relevant legislation is not based only on a specific age, but also takes account of the fact that the persons concerned are entitled to financial compensation by way of a retirement pension at the end of their working life, such as that provided for by the national legislation at issue in the main proceedings (see, to that effect, Palacios de la Villa, paragraph 73).
55 It follows that the setting of an age limit for the termination of a contract of employment does not exceed what is necessary to attain employment policy aims such as those mentioned in paragraphs 45 and 46 of this judgment, provided that that national legislation reflects those aims in a consistent and systematic manner.
56 It is for the national court to ascertain whether such an age limit genuinely reflects a concern to attain the aims pursued in a consistent and systematic manner (see Case C-169/07 Hartlauer [2009] ECR I-1721, paragraph 55, and Petersen, paragraph 53). In particular, it is for that court to examine whether the legislation at issue in the main proceedings distinguishes between, on the one hand, lecturers and university professors and, on the other hand, other university teaching staff by not providing for the compulsory retirement of the latter, as Mr Georgiev claims. It would thus be necessary to ascertain whether such a distinction corresponds to a necessity in the light of the aims pursued and the particular characteristics of the teaching staff at issue or whether, on the contrary, it indicates an inconsistency in the legislation, which does not therefore satisfy the conditions set out in Article 6(1) of Directive 2000/78.
57 Secondly, as regards the appropriate and necessary nature of the conclusion of fixed-term contracts as from the age of 65, the Court has already had occasion to examine the compatibility with Directive 2000/78 of national provisions providing for the application of such contracts as from a certain age.
58 In Mangold the Court thus examined national legislation which allows the employers concerned to conclude fixed-term contracts of employment with workers who have reached the age of 52, without distinction, whether or not they were unemployed before the conclusion of the contract, in the light of the objective pursued, namely to promote the integration of unemployed older workers.
59 In that judgment the Court, first, pointed out that such legislation leads to a situation in which the workers concerned may be offered fixed-term contracts which may be renewed an indefinite number of times until the age at which they may claim their entitlement to a retirement pension and are thus in danger, during a substantial part of their working life, of being excluded from the benefit of stable employment which constitutes, according to the Court, a major element in the protection of workers (see Mangold, paragraph 64). Secondly, it held that in so far as such legislation takes the age of the worker concerned as the only criterion for the application of a fixed-term contract of employment, when it has not been shown that fixing an age threshold, as such, regardless of any other consideration linked to the structure of the labour market in question or the personal situation of the person concerned, is objectively necessary to the attainment of the objective which is the vocational integration of unemployed older workers, it must be considered to go beyond what is appropriate and necessary in order to attain the objective pursued (Mangold, paragraph 65).
60 It must be pointed out that national legislation such as that at issue in the main proceedings is clearly different from that examined in Mangold and appears to be capable of being justified within the meaning of Directive 2000/78.
61 First, the application of fixed-term one-year contracts, which are renewable at most twice, may, like the age limit of 68, be capable of reflecting an employment policy which seeks inter alia to encourage the promotion of younger teaching staff to posts as university professors. In so far as the number of those posts is limited, the application to those professors, as from the age of 65, of fixed-term contracts, makes it possible to secure their departure after a relatively brief period and thus to appoint younger professors in their stead. It is however for the national court to ascertain whether that is the position of the university professors covered by the legislation at issue in the main proceedings.
62 Secondly, the application of those contracts is not solely linked to the condition that the worker has reached a certain age.
63 On the contrary, as is apparent from the national legislation referred to in paragraphs 11 and 12 of this judgment, the decisive factor is that the professor has acquired a right to a retirement pension, in addition to the fact that he has reached a certain age, which is moreover much higher than that at issue in Mangold, namely 65 instead of 52.
64 It follows from such legislation that the professors to whom a fixed-term contract is offered may choose either to retire with a pension or to continue to work beyond the age of 65.
65 In addition, the fixed-term contracts at issue in the main proceedings are limited to a period of one year and renewable at most twice and thus meet the requirements set out in clause 5, point 1, of the framework agreement on fixed-term work with a view to preventing abuse arising from the use of successive fixed-term contracts.
66 In those circumstances, national legislation which provides for the conclusion of fixed-term contracts, such as that at issue in the main proceedings, is capable of reconciling both the needs of the professors concerned and those of universities and may constitute an appropriate and necessary means for the purposes of achieving the aims referred to in paragraphs 45 and 46 of this judgment if that legislation reflects those aims in a consistent and systematic manner.
67 In any event, as was stated in paragraph 56 of this judgment, it is for the national court to determine whether the national legislation at issue in the main proceedings distinguishes between, on the one hand, lecturers and university professors and, on the other hand, the other university teaching staff as regards the application of fixed-term contracts or contracts of indefinite duration as from the time when the person concerned has reached retirement age. It is also for the national court to ascertain, in particular, whether such a distinction corresponds to a necessity in the light of the aims pursued and the particular characteristics of the teaching staff at issue or whether, on the contrary, it indicates an inconsistency in the legislation, which does not therefore satisfy the conditions set out in Article 6(1) of Directive 2000/78.
68 Consequently, the answer to the first two questions is that Directive 2000/78, in particular Article 6(1), must be interpreted as meaning that it does not preclude national legislation, such as that at issue in the main proceedings, under which university professors are compulsorily retired when they reach the age of 68 and may continue working beyond the age of 65 only by means of fixed-term one-year contracts renewable at most twice, provided that that legislation pursues a legitimate aim linked inter alia to employment and labour market policy, such as the delivery of quality teaching and the best possible allocation of posts for professors between the generations, and that it makes it possible to achieve that aim by appropriate and necessary means. It is for the national court to determine whether those conditions are satisfied.
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On those grounds, the Court (Second Chamber) hereby rules:
Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, in particular Article 6(1), must be interpreted as meaning that it does not preclude national legislation, such as that at issue in the main proceedings, under which university professors are compulsorily retired when they reach the age of 68 and may continue working beyond the age of 65 only by means of fixed’term one-year contracts renewable at most twice, provided that that legislation pursues a legitimate aim linked inter alia to employment and labour market policy, such as the delivery of quality teaching and the best possible allocation of posts for professors between the generations, and that it makes it possible to achieve that aim by appropriate and necessary means. It is for the national court to determine whether those conditions are satisfied.
Since this is a dispute between a public institution and an individual, if national legislation such as that at issue in the main proceedings does not satisfy the conditions set out in Article 6(1) of Directive 2000/78, the national court must decline to apply that legislation.”
Fuchs
[2011] RLR 1043, [2012] All ER (EC) 863, [2012] ICR 93, [2011] 3 CMLR 47
“The disputes in the main proceedings and the questions referred for a preliminary ruling
17 The facts of the disputes in the main proceedings are virtually identical and the questions referred by the national court are the same.
18 The applicants in each of the main proceedings, Mr Fuchs and Mr Köhler, both born in 1944, worked as State prosecutors until they reached the age of 65 in 2009, the age at which they should normally have retired pursuant to Paragraph 50(1) of the HBG.
19 The applicants each applied to continue to work for a further year, pursuant to Paragraph 50(3) of the HBG.
20 The Ministry of Justice of the Land Hessen having rejected their applications on the grounds that it was not in the interests of the service for them to remain in post; the applicants in the main proceedings lodged an objection at the Ministry of Justice and also made an application for interim measures to the Verwaltungsgericht Frankfurt am Main (Frankfurt am Main Administrative Court).
21 That court granted the applications for interim measures thus submitted, and ordered the Land Hessen to continue to employ Mr Fuchs and Mr Köhler. The decisions handed down by the Verwaltungsgericht Frankfurt am Main were, however, the subject of an appeal to the Hessischer Verwaltungsgerichtshof (Hessen Administrative Court), which set aside the decisions and dismissed the applications for interim measures submitted by the applicants. Since 1 October 2009, the applicants have no longer been able to perform their duties as State prosecutors and have been paid a retirement pension.
22 As their objections were also dismissed by decisions of the Ministry of Justice of the Land Hessen, Mr Fuchs and Mr Köhler brought an action before the Verwaltungsgericht Frankfurt am Main against those decisions.
23 The Verwaltungsgericht Frankfurt am Main has doubts as to the compatibility of the retirement age set in respect of the duties of prosecutor with, in particular, Article 6 of Directive 2000/78. In its view, the compulsory retirement at the age of 65 of persons performing those duties constitutes discrimination on grounds of age, contrary to the provisions of Directive 2000/78.
24 The national court explains that the provision at issue was introduced at a time when the view was taken that fitness for work declines after that age. Current research shows that such fitness varies from one person to another. Furthermore, the increase in life expectancy had led the legislature to raise to 67 – for federal civil servants and private-sector employees – the general age limit for retirement and entitlement to a pension. The HBG provides, moreover, that civil servants appointed following an election may perform their duties until the age of 71.
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28 In those circumstances the national court decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘1. Are the rules laid down in the [HBG] on the compulsory retirement age for civil servants based on an aim in the public interest in accordance with standards of [EU] law?
The following main questions arise in this respect:
– What specific requirements in [EU] law should such an aim prescribed in the public interest satisfy? What additional issues relating to the clarification of the facts of the case should the referring court consider?
– Does an interest in saving budgetary resources and labour costs, in the present context by avoiding the recruitment of new staff and so reducing expenditure on personnel, represent a legitimate aim within the meaning of Article 6(1) of Directive 2000/78…?
– Can an employer’s aim of enjoying a degree of planning certainty as regards the retirement of civil servants be recognised as a legitimate aim in the public interest, even if every employer governed by the [HBG] or the [Federal Law on the status of civil servants of the Länder] may develop and implement staff management ideas of his own?
– Can an interest in a “favourable age stratification” or “favourable age structure” be recognised as an aim in the public interest, despite the absence of general standards or statutory rules on what constitutes a correct age stratification or age structure?
– Can an interest in creating opportunities for the promotion of civil servants already in place be regarded as a legitimate aim in the public interest within the meaning of Article 6(1) of Directive 2000/78…?
– Does the adoption of rules on retirement ages to preclude individual legal disputes with older employees over their continued fitness for service constitute the pursuit of a legitimate aim in the public interest?
– Does the reference to the public interest within the meaning of Article 6(1) of Directive 2000/78… presuppose a labour market policy concept extending beyond individual employers in the area of employment, and if so, how uniform and binding must it be?
– Is it in fact possible for individual employers to pursue aims in the public interest for groups of employees, limited here to civil servants governed by the [HBG], with retirement age rules of such limited scope?
– Under what conditions can the aim, which can be pursued by individual employers, but is not mandatory, of occupying posts vacated by retired employees with new recruits, where necessary after existing employees have been promoted, be regarded as being in the public interest within the meaning of Article 6(1) of Directive 2000/78…? Must the reference to the public interest be backed not only by general claims that the rules serve that purpose, but also by statistics or other findings from which it can be inferred that such an aim is sufficiently serious and can actually be achieved?
2. (a) What specific requirements should be satisfied by the reasonableness and suitability of a retirement age arrangement within the meaning of the rules laid down in the [HBG]?
(b) Are more thorough investigations needed to determine the ratio of the – probable – number of civil servants remaining in service voluntarily after retirement age to the number who wish to receive a full pension on reaching retirement age, if not earlier, and therefore certainly want to leave the service? Would it not be appropriate in this respect to give voluntary retirement preference over compulsory retirement, provided that arrangements are made for pensions to be reduced where they are taken before the set retirement age is reached so as to preclude unreasonable pension budget spending and associated labour costs (voluntary departure rather than compulsion as the more appropriate and, in effect, hardly less suitable arrangement)?
(c) Can it be deemed reasonable and necessary to assume it to be irrefutable that all civil servants cease to be fit for service on reaching a given higher age, such as 65 years in this case, and so automatically to terminate their employment as civil servants at that age?
(d) Is it reasonable for the possibility of remaining employed in the civil service at least until the age of 68 years to be entirely dependent on the employer having special interests, but for employment in the civil service to be terminated with no legal possibility of securing reappointment where no such interests exist?
(e) Does a retirement age arrangement which leads to compulsory retirement, rather than being confined to specifying the conditions for entitlement to a full pension, as permitted under Article 6(2) of Directive 2000/78…, result in an unreasonable devaluation of the interests of older people relative to the fundamentally no more valuable interests of younger people?
(f) If the aim of facilitating recruitment and/or promotion is deemed to be legitimate, what more precise requirements must actually be satisfied to demonstrate the extent to which such opportunities are actually seized by each employer taking advantage of the retirement age arrangement or by all employers, in and outside the general labour market, to whom the statutory arrangement applies?
(g) In view of the gaps already to be seen in the labour market owing to demographic trends and of the impending need for skilled staff of all kinds, including staff for the public service of the Federal German and Land governments, is it reasonable and necessary to force civil servants able and willing to continue working to retire from the civil service at a time when there will soon be a major demand for personnel which the labour market will hardly be able to meet? Will it possibly be necessary in the future to collect sectoral labour market data?
3. (a) What requirements need to be met as regards the coherence of Hessen’s and possibly Federal German legislation on retirement ages?
(b) Can the relationship between Paragraph 50(1) und Paragraph 50(3) of the [HBG] be regarded as consistent if the possibility in principle of remaining in employment beyond retirement age depends entirely on the employer’s interests?
(c) Should Paragraph 50(3) of the [HBG] possibly be interpreted to mean, in compliance with … Directive [2000/78], that, to preclude unreasonable discrimination on the grounds of age, employment must always continue unless service factors prevent this? What requirements should then be satisfied to prove the existence of any such factors? Must it be assumed in this respect that the interests of the service require continued employment if only because unjustifiable discrimination on the grounds of age would otherwise occur?
(d) How might advantage be taken of such an interpretation of Paragraph 50(3) of the [HBG] for a continuation or resumption of the applicant’s employment as a civil servant, even though that employment has meanwhile been terminated? Should, in that case, Paragraph 50(1) of the [HBG] remain inapplicable at least until the age of 68 years?
(e) Is it reasonable and necessary, on the one hand, to impede the taking of voluntary retirement at the age of 60 or 63 years, with a permanent reduction in pension, and, on the other hand, to rule out the voluntary continuation of employment after the age of 65 years unless the employer has, by way of exception, a special interest in its continuation?
(f) Do the rules on retirement ages laid down in Paragraph 50(1) of the [HBG] cease to be reasonable and necessary as a result of the more favourable rules on part-time work on the grounds of age on the one hand and fixed-term civil servants on the other?
(g) What significance for coherence can be attributed to the various rules laid down in employment (public and private sector) and social insurance law which, first, are seeking permanently to raise the age at which a full pension can be drawn, second, prohibit the termination of employment on the grounds that the age specified for the standard retirement pension has been reached and, third, make it compulsory for employment to terminate when that precise age is reached?
(h) Is it relevant to coherence that the gradual raising of retirement ages in the social insurance and civil service law relating to the Federal German authorities and some Länder primarily serves the interests of employees in delaying as long as possible the need to meet the more stringent requirements for a full retirement pension? Are these questions insignificant because retirement ages have not yet been raised for civil servants governed by the [HBG], although this is due to become effective in the near future in the case of employees in employment relationships?’
29 By order of the President of the Court of 6 May 2010, Cases C-159/10 and C-160/10 were joined for the purposes of the written and oral procedures and of the judgment.
Consideration of the questions referred
30 The national court raises numerous queries, essentially grouped together into three questions, some of which relate to the interpretation of national law. In this regard, it must be borne in mind that the Court has no power, within the framework of Article 267 TFEU, to give preliminary rulings on the interpretation of rules pertaining to national law. The jurisdiction of the Court is confined to considering provisions of EU law only (see, in particular, Case C-222/04 Cassa di Risparmio di Firenze and Others [2006] ECR I-289, paragraph 63).
31 The questions raised must therefore be answered in the light of that limitation.
The first question
32 By its first question the national court asks, in essence, whether Directive 2000/78 precludes a law, such as the HBG, which provides for the compulsory retirement of permanent civil servants – in this instance prosecutors – at the age of 65, subject to the possibility that they may continue to work, if it is in the interests of the service, until the maximum age of 68, if that law has one or more of the following aims: the creation of a ‘favourable age structure’, planning of staff departures, promotion of civil servants, prevention of disputes or achieving budgetary savings.
33 It is common ground that the termination of contracts of employment of civil servants of the Land Hessen, in particular of prosecutors, when they reach the age at which they are entitled to a full pension, namely at the age of 65, constitutes a difference of treatment on grounds of age for the purposes of Article 6(1)(a) of Directive 2000/78.
34 A provision such as Paragraph 50(1) of the HBG affects employment and working conditions, within the meaning of Article 3(1)(c) of Directive 2000/78, by preventing the prosecutors concerned from continuing to work beyond the age of 65. Furthermore, by ensuring that they are treated less favourably than persons who have not reached that age, Paragraph 50(1) of the HBG introduces a difference of treatment directly on grounds of age for the purposes of Article 2(1) of Directive 2000/78.
35 Article 6(1) of Directive 2000/78 states that a difference of treatment on grounds of age does not constitute discrimination if, within the context of national law, it is 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.
36 In order to answer the question raised, it is necessary, therefore, to determine whether that provision is justified by a legitimate aim and whether the means put in place to achieve it are appropriate and necessary.
Whether there is a legitimate aim
37 The Court must begin by considering the consequences of the absence of any specific mention in the HBG of the aim pursued, the consequences arising from an alteration of that aim and its context, and also whether or not it is possible to rely on several aims.
38 It is apparent from the order for reference, first of all, that the HBG does not clearly state the aim pursued by Paragraph 50(1) of the HBG, which sets the retirement age of civil servants at 65.
39 In that regard, the Court has repeatedly held that it cannot be inferred from Article 6(1) of Directive 2000/78 that the lack of precision in the legislation at issue as regards the aim pursued automatically excludes the possibility that it may be justified under that provision. In the absence of such precision, it is important that other elements, taken from the general context of the measure concerned, enable the underlying aim of that measure to be identified for the purposes of review by the courts of whether it is legitimate and whether the means put in place to achieve it are appropriate and necessary (Case C-411/05 Palacios de la Villa [2007] ECR I-8531, paragraphs 56 and 57; Case C-341/08 Petersen [2010] ECR I-0000, paragraph 40; and Case C-45/09 Rosenbladt [2010] ECR I-0000, paragraph 58).
40 With regard to the modification of the aim pursued, it is apparent from the order for reference that, originally, Paragraph 50 of the HBG was based on the irrebuttable presumption that a person is unfit to work beyond the age of 65. At the hearing, however, the representatives of the Land Hessen and the German Government emphasised that that presumption should no longer be regarded as underpinning the retirement age, and that the legislature had accepted that people can be fit to work beyond that age.
41 It must be concluded, in that regard, that a change in the context of a law leading to an alteration of the aim of that law does not, by itself, preclude that law from pursuing a legitimate aim within the meaning of Article 6(1) of Directive 2000/78.
42 Circumstances can change and the law may nevertheless be preserved for other reasons.
43 Thus, in the main proceedings in this instance, in addition to the change regarding the perception of fitness to work beyond the age of 65, the aspect referred to by the national court – that the age limit was introduced during a period of full employment and then maintained during a period of unemployment – could indeed have led to an alteration of the aim pursued, without thereby preventing that aim from being legitimate.
44 As regards reliance on several aims at the same time, it may be seen from the case-law that the coexistence of a number of aims does not preclude the existence of a legitimate aim within the meaning of Article 6(1) of Directive 2000/78.
45 That was the case in Rosenbladt, in which the Court held, in paragraphs 43 and 45 of its judgment, that aims such as those relied on by the German Government could be regarded as being among the aims referred to in Article 6(1) of Directive 2000/78.
46 The aims relied on may be linked to one other (see, to that effect, Joined Cases C-250/09 and C-268/09 Georgiev [2010] ECR I-0000, paragraphs 45, 46 and 68) or classed in order of importance as in Petersen, in which, as can be seen from paragraphs 41 and 65 of that judgment, the German Government relied principally on one aim and, in the alternative, on another.
The aims relied on by the national court
47 According to the national court, the aim of Paragraph 50(1) of the HBG is, inter alia, the creation of a ‘favourable age structure’, which is achieved by the simultaneous presence within the profession at issue – that of prosecutors – of young employees at the start of their careers and older employees at a more advanced stage of theirs. The Land Hessen and the German Government submit that that is the principal aim of that provision. The obligation to retire at the age of 65 is, in their submission, designed to establish a balance between the generations, in addition to which the national court refers to three further aims: efficient planning of the departure and recruitment of staff, encouraging the recruitment and promotion of young people, and avoiding disputes relating to employees’ ability to perform their duties beyond the age of 65.
48 The Land Hessen and the German Government maintain that the presence within the relevant civil service of staff of different ages also helps to ensure that the experience of older staff is passed on to younger colleagues and that younger staff share recently acquired knowledge, thus contributing to the provision of a high-quality public justice service.
49 It must be noted that, according to the case-law, encouragement of recruitment undoubtedly constitutes a legitimate aim of Member States’ social or employment policy, in particular when the promotion of access of young people to a profession is involved (Georgiev, paragraph 45). The Court has, moreover, held that the mix of different generations of employees can also contribute to the quality of the activities carried out, inter alia by promoting the exchange of experience (see, to that effect, in relation to teaching staff and researchers, Georgiev, paragraph 46).
50 In the same way, it must be concluded that the aim of establishing an age structure that balances young and older civil servants in order to encourage the recruitment and promotion of young people, to improve personnel management and thereby to prevent possible disputes concerning employees’ fitness to work beyond a certain age, while at the same time seeking to provide a high-quality justice service, can constitute a legitimate aim of employment and labour market policy.
51 The national court is, however, uncertain whether a measure such as Paragraph 50(1) of the HBG does not meet the interests of the employer rather than the public interest. In particular, it raises the issue whether the measures adopted by a single Land in respect of some of its staff, in this instance permanent civil servants, including prosecutors, do not cover too limited a group to constitute a measure pursuing an aim in the public interest.
52 The Court has held that the aims that may be considered ‘legitimate’ within the meaning of Article 6(1) of Directive 2000/78 are aims having a public interest nature distinguishable from purely individual reasons particular to the employer’s situation, such as cost reduction or improving competitiveness, although it cannot be ruled out that a national rule may recognise, in the pursuit of those legitimate aims, a certain degree of flexibility for employers (see, to that effect, Case C-388/07 Age Concern England [2009] ECR I-1569, paragraph 46).
53 It must be observed that aims such as those referred to in paragraph 50 of the present judgment, which take into account the interests of all civil servants concerned, in the context of concerns relating to employment and labour market policy, in order to ensure a high-quality public service – in this instance that of justice – may be regarded as aims of public interest.
54 The Court has held, moreover, that it must be possible for the competent authorities at national, regional or sectoral level to alter the means used to attain a legitimate aim of public interest, for example by adapting them to changing circumstances in the employment situation in the Member State concerned (Palacios de la Villa, paragraph 70).
55 Thus, the fact that a provision is adopted at regional level does not prevent its pursuing a legitimate aim within the meaning of Article 6(1) of Directive 2000/78. In a State such as the Federal Republic of Germany, the legislature may take the view that, in the interests of all the persons concerned, it is for the Länder rather than the Federal authorities to adopt certain legislative measures covered by that provision, such as the retirement age of permanent civil servants.
56 Retirement that is, in principle, compulsory at the age of 65, as laid down in Paragraph 50(1) of the HBG, must nevertheless also be appropriate and necessary.
57 As regards the appropriateness of such a measure, the Land Hessen and the German Government submit that the number of posts, particularly prosecutors’ posts, available in the civil service is limited, particularly at the most senior levels. In the face of budgetary constraints, the opportunity of creating new posts is limited. They explain that prosecutors, like all civil servants, are appointed permanently and only rarely resign from their posts voluntarily and prematurely. Thus, the setting of a compulsory retirement age for prosecutors is the only means of ensuring that employment is distributed fairly among the generations.
58 The Court has already accepted in connection with professions in which the number of posts available was limited that retirement at an age laid down by law facilitated access to employment by younger people (see to that effect, in relation to panel dentists, Petersen, paragraph 70, and, in relation to university professors, Georgiev, paragraph 52).
59 As regards the profession of prosecutor in Germany, it is apparent that access to that profession is limited by the requirement that members should have obtained a special qualification entailing the successful completion of a course of study and a traineeship. In addition, the entry of young people into the profession could be restricted owing to the fact that the civil servants concerned are appointed permanently.
60 That being the case, it does not appear unreasonable for the competent authorities of a Member State to take the view that a measure such as Paragraph 50(1) of the HBG can secure the aim of putting in place a balanced age structure in order to facilitate planning of staff departures, ensure the promotion of civil servants, particularly the younger ones among them, and prevent disputes that might arise on retirement.
61 It must be borne in mind that the Member States enjoy broad discretion in the definition of measures capable of achieving that aim (see, to that effect, Palacios de la Villa, paragraph 68).
62 However, the Member States may not frustrate the prohibition of discrimination on grounds of age set out in Directive 2000/78. That prohibition must be read in the light of the right to engage in work recognised in Article 15(1) of the Charter of Fundamental Rights of the European Union.
63 It follows that particular attention must be paid to the participation of older workers in the labour force and thus in economic, cultural and social life. Keeping older workers in the labour force promotes diversity in the workforce, which is an aim recognised in recital 25 in Directive 2000/78; moreover, it contributes to the realising of their potential and to the quality of life of the workers concerned, in accordance with the concerns of the European Union legislature set out in recitals 8, 9 and 11 in that directive.
64 However, the interest represented by the continued employment of those persons must be taken into account in respecting other, potentially divergent interests. Those who have reached the age at which they are entitled to a retirement pension may wish to avail themselves of it and to leave work with the benefit of that pension, instead of continuing to work. Furthermore, clauses on automatic termination of the employment contracts of employees who reach retirement age could, in the interests of sharing work among the generations, promote the entry of young workers into the labour force.
65 Therefore, in defining their social policy on the basis of political, economic, social, demographic and/or budgetary considerations, the national authorities concerned may be led to choose to prolong people’s working life or, conversely, to provide for early retirement (see Palacios de la Villa, paragraphs 68 and 69). The Court has held that it is for those authorities to find the right balance between the different interests involved, while ensuring that they do not go beyond what is appropriate and necessary to achieve the legitimate aim pursued (see, to that effect, Palacios de la Villa, paragraphs 69 and 71, and also Rosenbladt, paragraph 44).
66 In that regard, the Court has accepted that a measure that allows for the compulsory retirement of workers when they reach the age of 65 can meet the aim of encouraging recruitment and be regarded as not unduly prejudicing the legitimate claims of the workers concerned, if those workers are entitled to a pension the level of which cannot be regarded as unreasonable (see, to that effect, Palacios de la Villa, paragraph 73). 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.
68 Taking those matters into account, it must be held that a measure which provides for prosecutors to retire when they reach the age of 65, as laid down under Paragraph 50(1) of the HBG, does not go beyond what is necessary to achieve the aim of establishing a balanced age structure in order to encourage the recruitment and promotion of young people, to improve personnel management and thereby to prevent possible disputes concerning employees’ fitness to work beyond a certain age.
69 It must further be noted that the national court also asks the Court of Justice about the legitimacy, in the light of Article 6(1) of Directive 2000/78, of the aim of achieving budgetary savings.
70 The Land Hessen and the German Government have stated, however, that in their view Paragraph 50(1) of the HBG does not pursue such an aim. According to the Land Hessen, the fact that certain permanent civil servants – in this instance prosecutors – were not replaced is accounted for by the fact that they were appointed in response to an exceptional increase in particular litigation at a particular time. The Land Hessen comments that, leaving those cuts aside, the number of prosecutors has increased since 2006.
71 It is for the national court to ascertain whether the aim of achieving budgetary savings is one that is pursued by the HBG.
72 It should be borne in mind that questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance (see, in particular, Joined Cases C-188/10 and C-189/10 Melki and Abdeli [2010] ECR I-0000, paragraph 27 and the case-law cited). In the present case, since it is not altogether obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, or that the problem is hypothetical, the Court must answer the question put forward.
73 As is apparent from paragraph 65 of the present judgment, in the context of the adoption of measures relating to retirement, EU law does not preclude the Member States from taking account of budgetary considerations at the same time as political, social or demographic considerations, provided that in so doing they observe, in particular, the general principle of the prohibition of age discrimination.
74 In that regard, while budgetary considerations can underpin the chosen social policy of a Member State and influence the nature or extent of the measures that the Member State wishes to adopt, such considerations cannot in themselves constitute a legitimate aim within the meaning of Article 6(1) of Directive 2000/78.
75 In the light of the foregoing, the answer to the first question is that Directive 2000/78 does not preclude a law, such as the HBG, which provides for the compulsory retirement of permanent civil servants – in this instance prosecutors – at the age of 65, while allowing them to continue to work, if it is in the interests of the service that they should do so, until the maximum age of 68, provided that that law has the aim of establishing a balanced age structure in order to encourage the recruitment and promotion of young people, to improve personnel management and thereby to prevent possible disputes concerning employees’ fitness to work beyond a certain age, and that it allows that aim to be achieved by appropriate and necessary means.
The second question
76 By its second question the national court asks, in essence, what information must be produced by the Member State in order to demonstrate the appropriateness and necessity of the measure at issue in the main proceedings and, in particular, whether statistics or precise data with figures must be supplied.
77 It is clear from paragraph 51 of Age Concern England that mere generalisations indicating that a measure is likely to contribute to employment policy, labour market or vocational training objectives are not enough to show that the aim of that measure is capable of derogating from the prohibition of age discrimination and do not constitute evidence on the basis of which it could reasonably be considered that the means chosen are likely to achieve that aim.
78 The Court has also pointed out, in paragraph 67 of that judgment, that Article 6(1) of Directive 2000/78 imposes on Member States the burden of establishing to a high standard of proof the legitimacy of the aim relied on as a justification.
79 According to recital 15 in Directive 2000/78, the appreciation of the facts from which it may be inferred that there has been discrimination is a matter for national judicial or other competent bodies, in accordance with rules of national law or practice. Such rules may provide in particular for indirect discrimination to be established by any means, including on the basis of statistical evidence.
80 In order to assess the degree of accuracy of the evidence required, it must be borne in mind that the Member States enjoy broad discretion in the choice of measure they consider appropriate.
81 That choice may, therefore, be based on economic, social, demographic and/or budgetary considerations, which include existing and verifiable data but also forecasts which, by their nature, may prove to be inaccurate and are thus to some extent inherently uncertain. The measure in question may, moreover, be based on political considerations, which will often involve a compromise between a number of possible solutions and, again, cannot with certainty lead to the expected result.
82 It is for the national court to assess, according to the rules of national law, the probative value of the evidence adduced, which may, inter alia, include statistical evidence.
83 Consequently, the answer to the second question is that, in order for it to be demonstrated that the measure concerned is appropriate and necessary, the measure must not appear unreasonable in the light of the aim pursued and must be supported by evidence the probative value of which it is for the national court to assess.
The third question
84 By its third question the national court queries the coherence of a law such as the HBG. Specifically, it raises the question, in essence, whether that law is inconsistent in compelling prosecutors to retire on reaching the age of 65, when (i) it allows them to continue to work until the age of 68 if it is in the interests of the service for them to do so; (ii) it seeks to restrict voluntary retirement at the age of 60 or 63 by a reduction in that case of pension rights; and (iii) the laws applicable to the civil service at Federal level and in a number of other Länder and also the Code of social law applicable to private sector employees provide for the age at which a person may retire on a full pension to be gradually raised from 65 to 67 years.
85 It must be observed, in accordance with settled case-law, that legislation is appropriate for ensuring attainment of the objective pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner (Case C-169/07 Hartlauer [2009] ECR I-0000, paragraph 55, and Petersen, paragraph 53).
86 Exceptions to the provisions of a law can, in certain cases, undermine the consistency of that law, in particular where their scope is such that they lead to a result contrary to the objective pursued by that law (see, to that effect, Petersen, paragraph 61).
87 With regard to the exception relating to the continued employment of a prosecutor until the age of 68, contained in Paragraph 50(3) of the HBG, it must be noted that this applies only if it is in the interests of the service and if the person concerned makes a request to that effect.
88 At the hearing, the Land Hessen indicated that that exception is intended to cover cases where a prosecutor reaches the age of 65 but has been allocated a criminal case in which proceedings have not yet been concluded. In order to avoid possible complications arising as a result of the replacement of the person concerned, the HBG provides, by way of exception, for him to be able to continue to perform his duties. The relevant administration might therefore regard it as preferable, in the interests of the service, to keep that prosecutor in post instead of appointing a replacement who would have to take on a case with which he was unfamiliar.
89 It must be held that such an exception is unlikely to undermine the aim pursued, namely that of guaranteeing a balanced age structure for the purposes of ensuring a high-quality service.
90 An exception of this kind can, on the other hand, mitigate the rigidity of a law, such as the HBG, in the interests of the civil service concerned. While departure and recruitment planning, owing to the automatic retirement of prosecutors when they reach the age of 65, contributes to the proper working of that service, the introduction, in that law, of the exception mentioned in paragraph 88 of the present judgment deals with specific situations in which the prosecutor’s departure could be detrimental to the best possible accomplishment of the task conferred on him. In those circumstances, this exception is not incoherent in the light of the law in question.
91 It must be added that other exceptions in the HBG referred to by the national court, such as the continued employment of certain teaching staff for some additional months beyond the age of 65 so as to tie in with the end of a teaching period, or of certain elected persons to tie in with the end of their term of office, are similarly intended to ensure the accomplishment of tasks conferred on the persons concerned and appear no more likely to undermine the aim pursued.
92 According to the national court, another problem in terms of coherence arises from the fact that the HBG seeks to restrict the voluntary retirement of prosecutors who have reached the age of 60 or 63 by means of a provision reducing the amount of the pension granted in such cases, while Paragraph 50(1) of the HBG prevents them from continuing to work beyond the age of 65.
93 It must be observed that the problem of coherence raised by the national court has not been clearly established. A provision such as that referred to by the national court seems, on the contrary, to be the logical consequence of Paragraph 50(1) of the HBG. The implementation of such a provision, which involves planning for staff to retire at the age of 65, actually requires that exceptions to such departures should be limited. A provision reducing the amount of the pension is likely to deter or at least to restrict the early departures of prosecutors. Such a provision thus contributes to the attainment of the aim pursued and does not support the conclusion that the HBG lacks coherence.
94 The national court also refers to the gradual raising from 65 to 67 of the age at which a person may retire on a full pension, both under the law applicable to the civil service at Federal level and under laws adopted by a number of other Länder and also the Code of social law applicable to private sector employees. A similar increase was envisaged by the Land Hessen at the material time, but had not yet been adopted.
95 In that regard, the mere fact that, at a given point in time, the legislature envisages changing the law to raise the age at which a person may retire on a full pension does not mean that, from that point on, the existing law is unlawful. It must be acknowledged that any transition from one law to another will not be immediate but will take a certain amount of time.
96 As is apparent from recital 25 in Directive 2000/78, the pace of change can vary from one Member State to another to take account of the particular situation in those States. It can also differ from one region to another, in this instance from one Land to another, to take account of particular regional features and to enable the competent authorities to make the necessary adjustments.
97 It follows that the mere fact that a certain period of time may elapse between changes made to the law of one Member State or one Land and those made in another State or Land for the purpose of raising the age at which a person is entitled to retire on a full pension does not, by itself, mean that the legislation at issue lacks coherence.
98 Consequently, the answer to the third question is that a law such as the HBG, which provides for the compulsory retirement of prosecutors when they reach the age of 65, does not lack coherence merely because it allows them to work until the age of 68 in certain cases or also contains provisions intended to restrict retirement before the age of 65, and other legislation of the Member State concerned provides for certain – particularly elected – civil servants to remain in post beyond that age and also the gradual raising of the retirement age from 65 to 67 years.
Costs
99 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Second Chamber) hereby rules:
1. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation does not preclude a law, such as the Law on the civil service of the Land Hessen (Hessisches Beamtengesetz), as amended by the Law of 14 December 2009, which provides for the compulsory retirement of permanent civil servants – in this instance prosecutors – at the age of 65, while allowing them to continue to work, if it is in the interests of the service that they should do so, until the maximum age of 68, provided that that law has the aim of establishing a balanced age structure in order to encourage the recruitment and promotion of young people, to improve personnel management and thereby to prevent possible disputes concerning employees’ fitness to work beyond a certain age, and that it allows that aim to be achieved by appropriate and necessary means.
2. In order for it to be demonstrated that the measure concerned is appropriate and necessary, the measure must not appear unreasonable in the light of the aim pursued and must be supported by evidence the probative value of which it is for the national court to assess.
3. A law such as the Law on the civil service of the Land Hessen, as amended by the Law of 14 December 2009, which provides for the compulsory retirement of prosecutors when they reach the age of 65, does not lack coherence merely because it allows them to work until the age of 68 in certain cases or also contains provisions intended to restrict retirement before the age of 65, and other legislation of the Member State concerned provides for certain – particularly elected – civil servants to remain in post beyond that age and also the gradual raising of the retirement age from 65 to 67 years.”
Wolf
[2010] 2 CMLR 32, [2010] IRLR 244 [2010] All ER (EC) 939
“The questions referred for a preliminary ruling
By its first to ninth questions, which should be taken together, the referring court raises the question of the discretion open to the national legislature to provide that differences of treatment on grounds of age do not constitute discrimination prohibited by Community law. It asks in particular whether aims such as the concern to ensure a long career for officials, to limit the amount of social benefits paid, to set up a balanced age structure within an occupation, or to ensure a minimum period of service before retirement are legitimate within the meaning of Article 6(1) of the Directive, and whether setting the maximum recruitment age for intermediate career posts in the fire service at 30 years is an appropriate and necessary means of achieving such aims.
To answer those questions, it must be examined whether the legislation at issue in the main proceedings falls within the scope of the Directive, whether it contains a difference of treatment within the meaning of the Directive, and, if so, whether or not the difference in treatment is justified.
In the first place, as regards the question whether the legislation at issue in the main proceedings falls within the scope of the Directive, it must be noted that it follows from Article 3(1)(a) of the Directive that it applies, within the framework of the areas of competence conferred on the Community, ‘to all persons, as regards both the public and private sectors, including public bodies, in relation to … conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy’ (see Case C-88/08 Hütter [2009] ECR I-0000, paragraph 34).
It follows from Paragraph 3 of the FeuerwLVO that only persons not more than 30 years of age can be recruited to intermediate career posts in the professional fire service. That provision thus affects the conditions of recruitment to that career. Such legislation must therefore be regarded as laying down rules relating to recruitment conditions within the meaning of Article 3(1)(a) of the Directive.
In the second place, as regards the question whether the legislation at issue in the main proceedings contains a difference of treatment on grounds of age in relation to employment and occupation, it must be noted that, under Article 2(1) of the Directive, for the purposes of the Directive, the ‘principle of equal treatment’ is to mean that there must be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1 of the Directive. Article 2(2)(a) states that, for the purposes of the application of Article 2(1), direct discrimination is to be taken to occur where one person is treated less favourably than another person in a comparable situation, on any of the grounds referred to in Article 1 of the Directive (see Case C-411/05 Palacios de la Villa [2007] ECR I-8531, paragraph 50, and Case C-388/07 Age Concern England [2009] ECR I-0000, paragraph 33).
The application of Paragraph 3 of the FeuerwLVO has the consequence that persons are treated less favourably than other persons in comparable situations on the ground that they have exceeded the age of 30 years. Such a provision introduces a difference of treatment on grounds of age for the purposes of Article 2(2)(a) of the Directive.
In the third place, it must be examined whether, as the referring court asks, the difference of treatment consequent on the application of Paragraph 3 of the FeuerwLVO is justified with reference to the Directive.
On this point, the referring court considered that it should be ascertained whether the difference of treatment on grounds of age could be justified by reference to Paragraph 10 of the AGG, which essentially repeats the principles in Article 6(1) of the Directive. It therefore aligned its questions to that provision of the Directive, dismissing from the outset the possibility that the difference of treatment might, pursuant to Article 4(1) of the Directive, not constitute discrimination. According to the referring court, the physical fitness of an applicant for an intermediate career post in the fire service is assessed in a separate selection procedure, to which Mr Wolf was not admitted because of his age. Consequently, the statutory age limit for access to that career could not be regarded as a genuine and determining occupational requirement within the meaning of Article 4(1).
It should be recalled here that, according to settled case-law, even if, formally, the referring court has limited its question to the interpretation of Article 6(1) of the Directive in relation to a possible justification of the difference of treatment resulting from the application of the national legislation at issue in the main proceedings, that does not prevent the Court from providing that court with all the elements of interpretation of Community law which may be of assistance in adjudicating in the case pending before it, whether or not it has referred to them in the wording of its question (see, inter alia, Case C-321/03 Dyson [2007] ECR I-687, paragraph 24; Case C-392/05 Alevizos [2007] ECR I-3505, paragraph 64 and the case-law cited; and Case C-532/06 Lianakis and Others [2008] ECR I-251, paragraph 23). It is for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision to make the reference, the points of Community law which require interpretation in view of the subject-matter of the dispute (see Case C-115/08 CEZ [2009] ECR I-0000, paragraph 81 and the case-law cited).
According to the German Government’s replies to the questions put by the Court under Article 24 of the Statute of the Court of Justice, and also to that government’s observations at the hearing, the aim of setting the age limit for recruitment to intermediate career posts in the fire service in the Land of Hesse at 30 years is to ensure the operational capacity and proper functioning of the professional fire service.
According to the German Government, the intermediate career in the fire service makes exceptionally high physical demands in respect of certain operations, which can only be satisfied by younger officials. In view of the medically proven ageing process, officials past the age of 45 to 50 years no longer possess those greater physical abilities and those operations have to be carried out by younger officials. The maximum recruitment age is thus intended to ensure that officials in the intermediate career of the fire service can perform the tasks which present particularly high physical requirements for a comparatively long period of their career.
It must be observed in this respect that, according to the very wording of Article 4(1) of the Directive, ‘a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 [of the Directive] shall not constitute discrimination where, by reason of the 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’. It follows that it is not the ground on which the difference of treatment is based but a characteristic related to that ground which must constitute a genuine and determining occupational requirement.
To examine whether the difference of treatment based on age in the national legislation at issue in the main proceedings is justified, it must be ascertained whether physical fitness is a characteristic related to age and whether it constitutes a genuine and determining occupational requirement for the occupational activities in question or for carrying them out, provided that the objective pursued by the legislation is legitimate and the requirement is proportionate.
As regards, first, the objective pursued by that national legislation, the German Government’s statements show that the aim pursued is to guarantee the operational capacity and proper functioning of the professional fire service.
In this respect, it must be pointed out that the professional fire service forms part of the emergency services. Recital 18 in the preamble to the Directive states that the Directive does not require those services to recruit 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.
It is thus apparent that the concern to ensure the operational capacity and proper functioning of the professional fire service constitutes a legitimate objective within the meaning of Article 4(1) of the Directive.
As regards, second, the genuine and determining occupational requirement for the activities of the fire service or for carrying them out, it follows from the uncontradicted information provided by the German Government that persons in the intermediate career of the fire service perform tasks of professional firefighters on the ground. In contrast to the management duties of persons in the higher careers of the fire service, the activities of persons in the intermediate career are characterised by their physical nature. Those persons take part in fighting fires, rescuing persons, environment protection tasks, helping animals and dealing with dangerous animals, as well as supporting tasks such as the maintenance and control of protective equipment and vehicles. It follows that the possession of especially high physical capacities may be regarded as a genuine and determining occupational requirement within the meaning of Article 4(1) of the Directive for carrying on the occupation of a person in the intermediate career of the fire service.
As regards, third, the question whether the need to possess high physical capacities is related to age, it should be noted that the German Government submits, without being contradicted, that some of the tasks of persons in the intermediate career of the fire service, such as fighting fires or rescuing persons, require exceptionally high physical capacities and can be performed only by young officials. The German Government produces scientific data deriving from studies in the field of industrial and sports medicine which show that respiratory capacity, musculature and endurance diminish with age. Thus very few officials over 45 years of age have sufficient physical capacity to perform the fire-fighting part of their activities. As for rescuing persons, at the age of 50 the officials concerned no longer have that capacity. Officials who have passed those ages work in the other branches of activities mentioned above. It follows that the need to possess full physical capacity to carry on the occupation of a person in the intermediate career of the fire services is related to the age of the persons in that career.
As regards, fourth and finally, the question whether national legislation such as that at issue in the main proceedings, which sets at 30 years the maximum recruitment age for officials having the high physical capacity to carry on an occupation in the intermediate career in the fire service, is proportionate, it must be examined whether that limit is appropriate for achieving the objective pursued and does not go beyond what is necessary to achieve it.
As has just been stated, the fire-fighting and rescue duties which are part of the intermediate career in the fire service can only be performed by younger officials. Officials older than 45 or 50 carry out other duties. To ensure the efficient functioning of the intermediate career in the fire service, it may be considered necessary for the majority of officials in that career to be able to perform physically demanding tasks, and hence for them to be younger than 45 or 50. Moreover, the assignment of officials older than 45 or 50 to duties which are less physically demanding requires them to be replaced by young officials. The age at which an official is recruited determines the time during which he will be able to perform physically demanding tasks. An official recruited before the age of 30, who will have to follow a training programme lasting two years, can be assigned to those duties for a minimum of 15 to 20 years. By contrast, if he is recruited at the age of 40, that period will be a maximum of 5 to 10 years only. Recruitment at an older age would have the consequence that too large a number of officials could not be assigned to the most physically demanding duties. Similarly, such recruitment would not allow the officials thus recruited to be assigned to those duties for a sufficiently long period. Finally, as the German Government submits, the rational organisation of the professional fire service requires, for the intermediate career, a correlation between the physically demanding posts not suitable for older officials and the less physically demanding posts suitable for those officials.
Consequently, it is apparent that national legislation such as that at issue in the main proceedings which sets the maximum age for recruitment to intermediate career posts in the fire service at 30 years may be regarded, first, as appropriate to the objective of ensuring the operational capacity and proper functioning of the professional fire service and, second, as not going beyond what is necessary to achieve that objective.
Since the difference of treatment on grounds of age is justified with regard to Article 4(1) of the Directive, there is no need to examine whether it could be justified under Article 6(1) of the Directive.
It follows from all the foregoing that the answer to the first to ninth questions is that Article 4(1) of the Directive must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which sets the maximum age for recruitment to intermediate career posts in the fire service at 30 years.
In view of the answer to the first to ninth questions, there is no need to answer the tenth question.
Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Grand Chamber) hereby rules:
Article 4(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which sets the maximum age for recruitment to intermediate career posts in the fire service at 30 years.”
Donnellan -v- MJELR & Ors
[2008] IEHC 467
McKechnie J.
“Issue No. 2: The Directive Challenge:
60. The second major issue in this case arises from Council Directive 2000/78/EC of the 27th November 2000, ‘establishing a general framework for equal treatment in employment and occupation’. This Directive was incorporated into domestic law by the Equality Act 2004. In short, it is submitted on behalf of the plaintiff that the 1996 Regulations are inherently incompatible with the Directive, a form of “per se” inconsistency, and accordingly cannot be relied upon to terminate his employment on his 60th birthday. In this context, though in precisely what way remains unclear, reference has also been made to the said Act of 2004 as being in itself an Act against which the Regulation should be measured. I will return to the point later in this judgment.
61. This Directive, adopted on the basis of Article 13 of the EC Treaty, contains the following recitals which should be outlined:-
“(4) The right of all persons to equality before the law and protection against discrimination constitutes a [recognised] universal right …
(6) The Community Charter of the Fundamental Social Rights of Workers recognises the importance of combating every form of discrimination…
(9) Employment and occupation are key elements in guaranteeing equal opportunities for all and contribute strongly to the full participation of citizens in economic, cultural and social life and to realising their potential. …
(11) Discrimination based on religion or belief, disability, age or sexual orientation may undermine the achievement of the objectives of the EC Treaty, in particular the attainment of a high level of employment and social protection, raising the standard of living and the quality of life, economic and social cohesion and solidarity, and the free movement of persons.
(12) To this end, any direct or indirect discrimination based on religion or belief, disability, age or sexual orientation as regards the areas covered by this Directive should be prohibited throughout the Community…
(14) This Directive shall be without prejudice to national provisions laying down retirement ages. …
(18) 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. …
(23) In very limited circumstances, a difference of treatment may be justified where a characteristic related to religion or belief, disability, age or sexual orientation constitutes a genuine and determining occupational requirement, when the objective is legitimate and the requirement is proportionate…
(25) 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.” (Emphasis added)
62. The following Articles of the Directive must also be referred to:
i) Article 1 of the Directive states that its purpose is “to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.”
ii) Article 2, headed “Concept of Discrimination”, provides:
“1. For the purposes of this Directive, the ‘principle of equal treatment’ shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.
2. For the purposes of paragraph 1:
(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;
(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless… that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary…” (Emphasis added)
iii) Article 3, delineating the scope of the Directive, states that it “shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to… (c) employment and working conditions, including dismissals and pay…”
iv) Article 6, which is headed “Justification of differences of treatment on grounds of age”, at sub-article (1), reads:
“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.” (Emphasis added)
63. The Directive, by virtue of Article 20, became directly applicable in this jurisdiction on 2nd December 2003.
64. Before dealing substantively with the instrument, a preliminary issue which arises thereunder, must be resolved. As will be considered more thoroughly in the next part of the judgment, Recital 14 of the Directive reads “this Directive shall be without prejudice to national provisions laying down retirement ages”. It is the plaintiff’s case that, notwithstanding this recital, any relevant provision of national law must still be compatible with the Directive. On the other hand the defendants argue that by its plain meaning, once there is in existence such a national measure, it is immune from Directive compatibility.
65. In Félix Palacios de la Villa v. Cortefiel Servicios SA, (Case C-411/05) [2007] ECR I-08531 (16th October 2007), the European Court of Justice expressed a view on this Recital. In that case Spanish law, under certain conditions, permitted freely negotiated collective agreements between workers and employers to contain provisos dealing with compulsory retiring ages. On a challenge to the provisions contained within one such agreement, the Court at para. 44 of its judgment had this to say on Recital 14:
“It is true that, according to recital 14 in its preamble, Directive 2000/78 is to be without prejudice to national provisions laying down retirement ages. However, that Recital merely states that the Directive does not affect the competence of the member states to determine retiring age and does not in any way preclude the application of that Directive to national measures governing the conditions for termination of employment contracts where the retirement age, thus established, has been reached.”
66. The defendants seek to distinguish that decision by pointing out that the retirement age was not “laid down” by any domestic law, and therefore there was no direct establishment on the part of the national authority. In addition, a lengthy passage from the opinion of Advocate General Mazak, delivered on 15th February 2007, was opened in which, at paras. 64 and 65, he opines that Recital 14 should be read in a manner which immunised from Directive scrutiny national measures containing retirement ages. It was thus urged upon this Court that effect should be given to the primacy of the plain and unambiguous language of Recital 14.
67. I am afraid that I cannot agree with this submission; even, if uninfluenced by case law, I would hold, relying upon first principles, that such a construction would be inherently incompatible with the whole purpose, thrust and tenor of the Directive. Given the significance of furthering the principle of equality and noting the steps taken at community level to implement this, it would seem almost self-defeating, to allow member states to disregard the Directive, by such simple means as fixing compulsory retiring ages. It would matter not at what particular age the threshold was set, or whether there was any or any legitimate justification therefor. Once on the statute books the effect would be to bypass the Directive. I could not hold that this was either the intention of the Directive or indeed its effect.
68. In addition, I entirely disagree that the Palacios decision can be distinguished in such a manner so as to neutralise the effect of para. 44 of the Court’s judgment. In my view the real challenge in the case was to a compulsory retiring age which was both recognised and enforceable in the domestic laws of that state. The fact that its foundation lay directly within the collective agreement does not in any way take from the primacy of the point. I therefore believe that Palacios is a direct authority on Recital 14 and, since it accords with my own interpretation as to the placement of that Recital, I would respectfully follow it. Therefore, having regard also to the next succeeding paragraph, I am satisfied that the Directive applies to the Regulations under review in this action.
69. There can be no doubt in my view but that members of An Garda Síochána serving within that force are covered by the Directive (and the 2004 Act). That the Directive applies is, in my opinion, self-evident from the Employment Equality Act 1998, as amended by the 2004 Act; this because of the definitions given to “employee”, and “contract of service”, and because of the express provisions of s. 2(3) which specifically deem a member of An Garda Síochána to be an employee of the State under a contract of service. In addition it is significant to note that in its original form s. 37(4) of the 1998 Act applied its provisions to members of the Defence Forces, An Garda Síochána and the Prison Service. In its amended form, by virtue of s. 25 thereof, application of the Act is continued only in respect of members of the Defence Forces. These circumstances, as well as the provisions of s. 37(3) and (4), as amended, make it inescapably clear that the provisions of the Directive apply to the plaintiff in this case.
70. That being so, it inevitably must follow that the provision of the 1996 Regulations, which had the effect of terminating the plaintiff’s employment at age 60, constitutes direct discrimination within the meaning of Article 2 of the Directive; in that the plaintiff is treated less favourably than another Assistant Commissioner who has not reached the age of 60. Therefore it falls squarely within the prohibition on direct discrimination. This conclusion of course equally applies to the Equality Act 2004. Consequently it is incumbent upon the member state to justify this difference of treatment on the grounds of age. It can do so under the provisions of Article 6 if it can establish that, within the context of national law, the differences in such treatment 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” (see paras. 61 – 62 supra. for the relevant Directive provisions).
71. The effect of the Directive, in these circumstances, can thus be summarised:-
i) In pursuit of its purpose to implement the principle of equal treatment in employment and occupation, it prohibits direct and indirect discrimination on any of the discriminatory grounds which include age.
ii) “Direct discrimination” for this purpose occurs where by reason of age one person is treated less favourably than another in a comparable situation (Article 2).
iii) If a national law provides for differences in treatment between comparable persons on the grounds of age, such inequality will not necessarily be prohibited if the differences are objectively and reasonably justified, by reference to a legitimate aim such as legitimate employment policy, labour markets and vocational training objectives, and if the means used are appropriate and necessary (article 6).
iv) Member States have a broad discretion in their choice of identifying the aim(s) to be pursued and the means or measures to implement such (Recital 25). These can be identified by reference to political, economic, social, demographic and budgetary considerations, provided overall the effect of the Directive is not put in peril: Mangold [2005] ECR I-9981.
v) Member States shall, without prejudice to the Directive, have the power to fix retiring ages (Recital 14).
vi) Member States are not obliged under the provisions of the Directive to recruit, or maintain in employment, persons in the police, prison or emergency services who lack the capacity to perform the required service: this derogation supports the legitimate objective which a Member State may have in preserving the operational capacity of these services (Recital 18).
72. Having come to the conclusion that the Directive is applicable to the current situation, it must still be determined if and how the national laws relating to the compulsory retirement of Assistant Commissioners at age 60, fall foul of the Directive.
73. It is settled in the case law that in order to avail of the Directive’s protection the complainant must show that he is being treated differently to someone who is in the same position as him, or that someone who is in a different position is being treated the same as him (see Article 2(2)(a)). This person, hypothetical or otherwise, is referred to as the “comparator”.
74. In the context of age, it has been recognised that this comparator requirement may be difficult to define with specificity. Unlike other areas such as sex discrimination, where it can be readily apparent that two comparable people are being treated differently on that basis (as in Lindorfer v. Council of the European Union Case C-277/04: re: Community pension regulations, where in calculating pension amounts, account was taken of a person’s sex on the basis that women lived longer: this was illegally discriminatory), age presents a particular problem. The European Commission paper on Employment & Social Affairs entitled “Age Discrimination and European Law”, (Colm O’Cinneide, 2005), (hereinafter “the Commission paper”) notes that the fluid nature of a person’s age, and the uncertain and shifting nature of “age groups”, as well as the changing expectations which accompany changes in age, even between persons of similar ages, made the application of the comparator test difficult in this context.
75. Reference was made to the decision of the Irish Equality Tribunal in Perry v. Garda Commissioner DEC-E2001-029. In that case the Equality Officer found that provisions governing voluntary retirement were discriminatory, since if the retirement scheme was considered by reference to two hypothetical employees, one aged 60 plus 1 day old, and another aged 60 minus 1 day, the result leads to a disparity between the resulting gratuity payments. This could not be explained with reference to “clear actuarial or other evidence … presented by the respondent which would make such discrimination permissible in the context of the [Employment Equality Act 1998].” However, the applicant ultimately lost because of transitional measures allowing for age-related pay to continue for three years after the entry into force of the Employment Equality Act 1998.
76. The difficulty of finding a suitable comparator in relation to age discrimination was also highlighted in the Opinion of the Advocate General in Palacios, where Advocate General Mazák felt that:
“So far as non-discrimination on grounds of age, especially, is concerned, it should be borne in mind that that prohibition is of a specific nature in that age as a criterion is a point on a scale and that, therefore, age discrimination may be graduated. It is therefore a much more difficult task to determine the existence of discrimination on grounds of age than for example in the case of discrimination on grounds of sex, where the comparators are more clearly defined.”
77. Once a difference in treatment is shown to exist with a relevant comparator, it is then necessary to show that such is due to age; or put another way, that age is a “material factor”. Such discrimination may be obvious on its face, as was seemingly the case in Perry, or else it may be more covert; referring to factors that are essentially “age proxies”, for example if an employee was dismissed for “being around too long” or was denied a promotion for being “overqualified”, when the decision was essentially based on age. As the Commission paper states, such “age proxies” constitute direct discrimination “as age will actually be a ‘material factor’ in the decision-making process.”
78. It is worth noting that under Article 10(1) of the Directive, if a claimant can establish a prima facie case that age was a material causal factor in the decision, then the burden of proof shifts to the respondent to show that age was not such a factor, or else that it was justified. The fact that one candidate is preferred over another of a different age will clearly not be enough to shift the burden. However, if, for example, a job was granted to a younger person who was less qualified than an older applicant then this could indicate the presence of age bias. The Commission Paper, p. 24, refers to a Slovakian District Court case (2003 No. 7C 190/02-309) where the court found discrimination on the basis that a research worker with more than 20 years experience, had been excluded from the position of coordinator (even though she had been involved in developing, and had been mentioned in, an initial project proposal), in favour of a younger less qualified researcher, where no justification could be established.
79. Nonetheless, as I have previously said, it is clear that the imposition of mandatory retirement age is discriminatory, per se, under the Directive, in that it places one person at a disadvantage to another, who would otherwise be in the same situation, on the grounds of age alone.
80. It must thus be determined whether such discrimination is saved by one or more of the justifications under the Directive. As enunciated, these justifications include:
i) That the measure is a “genuine and determining occupational requirement” (“GOR”);
ii) That the measure is aimed at “preserving the operational capacity” of the Gardaí;
iii) That the measure is justified by a legitimate aim, in this case employment policy; or,
iv) That the measure is “objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary” – the proportionality requirement.
81. Turning to the first potential justification, namely that of a GOR, Article 4 permits discrimination where age is “a genuine and determining occupational requirement for the position in question, and it is proportionate to apply this requirement in the particular circumstances.” This Article only applies where the characteristic of age itself, goes towards an applicant’s ability to perform a particular job. The Commission paper states that “it is difficult to see many circumstances where such a blunt characteristic such as age would be required as a ‘genuine occupational requirement’” and notes that the UK government’s consultation paper on implementation of the Directive suggests that there will be “very few cases where age is genuinely a requirement.” But there will be some, however few, such as acting, or modelling clothes aimed at a particular age group. As stated earlier, there may be cases where characteristics acting as proxies to age might be employed in relation to a genuine occupational requirement. The Commission however has serious reservations about the practical application of the saver, noting that age should not be used as a proxy for characteristics such as incapacity, ill-health or immaturity, since:
“[A]ge is not a sufficiently precise indicator for any of these characteristics for it to be possible to normally use it as a substitute for a ‘real’ GOR…”
This would be so even if age could be statistically linked to trends in those characteristics. Nonetheless there may be circumstances where the assessment of individual work is impossible or excessively onerous, and where age can in some way be linked to the possession of a GOR. In those circumstances age discrimination may be a “necessary shorthand” to differentiate between different groups of works. However, in the opinion of the Commission:
“[T]he use of such age limits will have to be shown clearly necessary: even a pressing legitimate aim such as public safety cannot justify the sweeping use of age limits where individual assessment is possible.”
82. From the Canadian case of Law v. Canada (Minister of Employment and Immigration) [1989] 1 SCR 143 and the Australian case of Qantas v. Christie (1998) 152 ALR 1295 two questions can generally be asked in this context:
“a) are the characteristics that are cited to justify the act of discrimination legitimate and justifiable grounds for distinguishing between two people, b) is age an effective and reliable proxy for the relevant characteristics or a necessary differentiating tool for determining whether an individual possesses those characteristics.”
83. This test, which was applied in another Canadian case of MacDonald v. Regional Administrative School Unit No. 1 (1992) 16 CHRR D/409, lead to the conclusion that a state-wide mandatory retirement age of 65 for school bus drivers was justifiable, given the number of drivers involved. In relation to protecting public safety, the Commission paper cites “the US Supreme Court case decision in Western Airlines v. Criswell No.83-1545, where the Court emphasised that employers would have to demonstrate that the use of an age limit was ‘necessary’ and individual assessment was not possible, even where public safety was an issue.”
84. Recital 18 of the Directive which allows, in relation to the armed forces and the police, prison or emergency services, discrimination “with regard to the legitimate objective of preserving the operational capacity of that service” should be read in light of the exemption for genuine occupational requirements. Age in the context of such services would seem to be a form of genuine occupational requirement, since it is obvious that such services require a great degree of physicality and that the age of the people “on the ground”, so to speak, would indeed inhibit their efficiency. However, where such a restriction is in place in relation to the armed forces or police services, there would still be a requirement that such is for the purpose of preserving the operational capacity of the force, and/or, as a genuine occupational requirement; any such measure should also be proportionate. Although in this regard the perils of using age as a proxy for other characteristics should of course be borne in mind.
85. What constitutes “preserving the operational capacity” of the Gardaí? One can readily understand why such a saver was placed in the Directive. Were this provision not in place, it would be open to a member of a police force, army or other such service, to claim that it was an illegitimate discrimination to have different retirement ages as between what one might call the “troops on the ground”, or “bobbies on the beat”, and those members of a force who have a more administrative, managerial or operational role. In the case of the Gardaí this was the situation until the most recent regulations which now bring in line the retirement ages of all members (excluding the Garda Reserves), irrespective of rank to aged 60. Prior to this there was a difference as between the lower ranks, who could be seen to be doing the more physical work, and the higher ranks, including the Commissioner ranks, who had a more operational role. That such a distinction should be allowed may well be justified, since it is obvious that a Garda on the beat will need to be more physically able than one behind a desk. Nevertheless, were the aforementioned saver not included, such discrimination might be open to challenge given that the correlation between age and physical fitness for duty is not a given, and will inevitably vary as between individual members.
86. In any event I am satisfied that the Regulations under consideration herein, could not be said to be aimed at “preserving the operational capacity” of the force. Nor could it be said that the age of the Assistant Commissioner formed part of the “occupational requirement”, of that position as it could be of a job like child modelling. There is nothing inherent about the age used in the Regulations which would mean that a person of a certain age was required for the job.
87. The above two potential justifications thus seem aimed at very specific circumstances which would otherwise be discriminatory. The following two are wider in their potential application and seek to regulate the use of age discrimination where it is required for broader social purposes and where it is proportionate.
88. An issue which arose during the trial was the question of whether, in looking at the reasons and justification offered, one should do so by reference to the context in which the Regulation was made, or in the context of changed circumstances since that time. Given my conclusions on this particular matter, it should be noted that the following comments strictly speaking are obiter. If I was deciding this matter solely on administrative law grounds I would feel bound, in general, only to consider the justification question in light of the situation at that time. It is at this time when the “reasonableness” of a decision should be tested. To otherwise review such matters would be to look towards the merits of the decision in light of changing circumstances; in the presenting situation this is not the purpose of judicial review. The question in judicial review is whether there was an error in the way in which a decision was arrived at. This question is fixed in time; either the matter was properly decided at the time, or it was not. Changing circumstances do not render a prior decision improper merely because, under new conditions, the legitimate justifications of the decision-maker no longer hold true.
89. However, in circumstances where the Court is reviewing a matter not purely as to the “reasonableness” of a decision, but in relation to whether its continued existence is in compliance with a Directive (especially in circumstances where the Directive post-dates the Regulation), I am satisfied that the Court may also inquire as to whether at the current date the Regulations in questions can be justified. This makes sense given that some measures may be temporally or circumstantially justified, but once the reason for their original inception has passed, they would clearly no longer be so. For example if movement restrictions were put in place to curb the spread of an infectious disease which had long since ceased, or if restrictions were placed on certain organisations because of their composition or aims, which had long since changed. In both situations the justifying purpose no longer exists and so the once legitimate aims were now moot, thereby no longer justifying their purported compliance with the Directive.
90. Much evidence was led by the Defendants in attempting to justify the 1996 Regulations. Such justifications, as outlined herein, it was contended, were as relevant today as when the Regulations were introduced. I would agree with this proposition, insofar as I agree that the particular justifications advanced by the Defendants, if they were legitimate at all, would be so regardless of whether they were judged at the time of the making of the 1996 Regulations or today. It is therefore unnecessary, and I do not propose, to distinguish between whether the justifications were or still are relevant. That is not to say that justifications may not cease to be legitimate with the passage of time, but in the present circumstances I can see no real difference as between then and now with regards to their legitimacy.
91. The next proposition to deal with is thus whether the justifications advanced by the Defendants relate to a “legitimate aim”, in particular a “legitimate employment policy” or like aim; the list of examples given in the Directive is not an exhaustive one, given the use of the word “including”; nor should it be taken that where a justification falls under one of the headings in Article 6(1) that it will not be scrutinised as to whether the distinction in question is objectively justified. Such an interpretation is supported by the Opinion of Advocate General Sharpton in Birgit Bartsch v. Bosch und Siemens Hausgeräte (BSH) Altersfürsorge GmbH (delivered on 22nd May 2008), para. 110. She states at para. 112 of her Opinion that:
“The only logical conclusion to be drawn is that Directive 2000/78 expressly permits particular kinds of differential treatment based directly on grounds of age, provided that they are ‘objectively and reasonably justified by a legitimate aim … and if the means of achieving that aim are appropriate and necessary’. This analysis of the text is borne out by the Court’s judgment in Palacios de la Villa…”
92. In Palacios the ECJ considered whether the national law in that case had a “legitimate aim”. The Court held, at para. 62, that:
“[P]laced in its context, the … provision was aimed at regulating the national labour market, in particular, for the purposes of checking unemployment.”
The respondents argued in the circumstances that the legislation, which allowed for compulsory retirement ages in accordance with collective agreements, had the legitimate aim of “regulating the national labour market, in particular, for the purposes of checking unemployment”. The court accepted this as a legitimate aim, stating that:
“64. The legitimacy of such an aim of public interest cannot reasonably be called into question, since unemployment policy and labour market trends are among the objectives expressly laid down in the first subparagraph of Article 6(1) of Directive 2000/78 and, in accordance with the first indent of the first paragraph of Article 2 EU and Article 2 EC, the promotion of a high level of employment is one of the ends pursued both by the European Union and the European Community.
65. Furthermore, the Court has already held that encouragement of recruitment undoubtedly constitutes a legitimate aim of social policy (see, in particular, Case C-208/05 [2007] ECR I-181, paragraph 39) and that assessment must evidently apply to instruments of national employment policy designed to improve opportunities for entering the labour market for certain categories of workers.”
93. The Commission paper, in considering what constitute legitimate aims, noted that concern had been expressed by Eurolink Age and other NGOs that the very broad and vague wording of the examples might encourage a loose approach. However, the Commission paper states that the examples should only be seen as broad guidelines; it then cites examples of legitimate aims considered in a UK Department of Trade and Industry Consultation Paper, “Equality and Diversity: Age Matters” (London: DTI, 2003). These included:
“a. health, welfare and safety – for example, for the protection of younger workers;
b. facilitation of employment planning – for example, where a business has a number of people approaching retirement age at the same time;
c. the particular training requirements of the post in question – for example, air traffic controllers…
d. encouraging and rewarding loyalty;
e. the need for a reasonable period of employment before retirement – for example, an employer who has exceptionally justified a retirement age of 65 might decline to employ someone a few months short of 65 if … the applicant would not be sufficiently productive in that time.”
94. In the context of considering the legitimate aims advanced, the paper further notes that it is obviously necessary for the person advancing that aim to have a subjective belief as to its validity. Furthermore:
“[T]he less pressing and immediate the legitimate aim concerned, the greater may be the degree of scrutiny of the objective justification of an age distinction: a discriminatory scheme justified on public safety grounds will generally require less clear-cut justification than one based on economic reasons.”
95. In this case the relevant justifications would be that the alteration in the retirement ages was required to:
i) maintain motivation within the force and senior ranks, by preventing the blocking of the Commissioner ranks;
ii) bring the retirement age of the Assistant / Deputy Commissioners in line with that of the Commissioner and the Superintendents ranks;
iii) create a competitive pool of candidates from which the Commissioner
might be chosen;
iv) implement the new regional command structure, with a greater operational focus.
96. Before continuing I would note that it is firmly established that where justification is sought, and multiple reasons are given, it will be enough that one or more of the justifications advanced, amount to a legitimate aim.
97. The efficient and effective running of the Gardaí is certainly an “aim of public interest”, as put in Palacios. It is likely that such an aim would fall under the heading of “employment policy”. However the required extent that such a policy would need to become one of the inclusive examples under Article 6(1) is unclear. Nonetheless, I am content to conclude that the justifications advanced in this case constitute a prima facie legitimate aim, namely “employment policy” within the Gardaí.
98. As noted above, even where a measure is shown to have been enacted with a legitimate aim it must still show itself to be appropriate and necessary. This is the test of proportionality; the measure must go no further than is required to reach the legitimate aim and must do so in the least restrictive way.
99. The ECJ considered Article 6(1) in Werner Mangold v. Rüdiger Helm [2005] ECR I-9981. That case concerned a German law which permitted employers to conclude, without restriction, fixed-term contracts of employment with workers over the age of 52. The Court noted the purpose of the legislation as being to promote the vocational integration of unemployed older workers, insofar as they encounter considerable difficulty in finding work. Such public interest objectives could not be doubted; it was an objective and reasonable justification for different treatment on the ground of age. Nonetheless, it still fell to be considered whether the means to achieve that legitimate objective were appropriate and necessary, noting that Member States enjoy a broad discretion in this regard. The Court, taking a pragmatic view, stated that in reality the provision had lead to a situation in which all workers who had reached the age of 52, “without distinction, whether they were employed before the contract concluded and whatever the duration of any period of unemployment” would be offered fixed-term contracts, which could be renewed indefinitely. This meant that a significant body of workers, determined solely on the basis of age, were in danger of being excluded from the benefit of stable employment. The Court thus concluded that:
“In so far as such legislation takes the age of the worker concerned as the only criterion for the application of a fixed-term contract of employment, when it has not been shown that fixing an age threshold, as such, regardless of any other consideration linked to the structure of the labour market in question or the personal situation of the person concerned, is objectively necessary to the attainment of the objective … it must be considered to go beyond what is appropriate and necessary in order to attain the objective pursued. Observance of the principle of proportionality requires every derogation from an individual right to reconcile, so far as is possible, the requirements of the principle of equal treatment with those of the aim pursued (see, to that effect, Case C-476/99 Lommers [2002] ECR I-2891, paragraph 39). Such national legislation cannot, therefore, be justified under Article 6(1) of Directive 2000/78.”
100. The question of whether a measure which was objectively justified was nevertheless implemented by means which were appropriate and necessary, that is proportionate, under Article 6(1), was also considered in a decision of the U.K. Employment Tribunal: Hampton v. Lord Chancellor and Ministry of Justice (Case No.: 2300835/2007). It that case the claimant held the judicial office of Recorder. Service as a Recorder is generally regarded as a prerequisite for appointment to a salaried position on the Circuit or High Court bench. In 1998 the retirement age for Recorders was reduced from 70 to 65. In 2000 a standard retirement age was introduced for all new judicial appointments, however in 2002 this was reversed and the age was increased back to 70 for all fee paid judicial office holders, except for Recorders and Deputy District and High Court Judges, since the lower retirement age had affected the operational viability of certain Tribunals. The applicant complained that the different retirement ages between Recorders and other judicial office holders was discriminatory, although he accepted that some retirement age needed to be set so as to ensure judicial independence. The Ministry having conceded that the applicant had been subjected to less favourable treatment on the ground of age, the sole issue was thus whether the policy of retiring all Recorders at 65 could be objectively justified.
101. The Ministry argued that the retention of Recorders from age 65 to 70, who would not be in the pool for appointment to full-time judicial office, prevented the recruitment of younger recorder who would be in such a pool. Furthermore it argued that the presence of Recorders over the age of 65 would reduce the availability of more challenging cases, and thus necessary experience, for those who would be in the pool for next appointment. The Tribunal, however, rejected these arguments. It found that there was no evidence to support the assumption that all Recorders over the age of 65 would remain in the post until 70. Nor did it consider that the reduction in the number of younger Recorders, which would result from increasing the retirement age to 70, would have any effect on the production of suitable candidates for judicial appointment. It also felt that, contrary to the submissions of the Ministry, a reduction in the number of vacancies would increase competition and in fact lead to an increase in the quality of those appointed. Further, it noted that steps could be taken to ensure that those who had the potential to be promoted to a judicial post were allocated the right types of cases so as to gain the appropriate experience. For these reasons, the Tribunal did not accept that the policy of retiring Records at 65 was a proportionate means of achieving the admittedly legitimate aim of ensuring a reasonable flow of new appointments into the judiciary.
102. Both Mangold and Hampton in my view are clearly distinguishable from the present case. In Mangold the provisions in question had a wide ranging reach, affecting every person over the age of 52. It was clear that in practice this was causing indirect discrimination against this age group. In contrast the provisions here are of a specific and defined character. Hampton, similarly, is distinguishable. It was clear in Hampton that there was a very large pool of Recorders, well over a thousand, from whom Judges could be appointed. The Tribunal thus felt that there was no real evidence that keeping the age at 65 could be justified on this ground. Nor could it be proportionate where, in the circumstances, all of the problems identified by the State could have been overcome by much less invasive methods than having a compulsory retirement age. Again in the instant case there are but a dozen persons in the Assistant and Deputy Commissioner ranks from whom a Commissioner might be chosen. Even if it was to be accepted, as was advanced by the Plaintiff, that a Commissioner could be appointed from the Chief Superintendent ranks, the pool would still not be anywhere near the size of the one considered in Hampton. These two cases are therefore readily distinguishable from the present situation. Finally I should say that the possibility of an appointment from the Chief Superintendent rank does not in any way diminish the importance of having a quota available at the higher rank. It is having a choice from the most senior group that is the point.
103. The means in this case were the introduction of a Regulation which reduced the age of retirement for Assistant Commissioners from 65 to 60. However this reduction is still subject to regulation 6(b) of the 1951 Regulations which allows the extension of a member’s service for a period of up to five years where the Commissioner is satisfied that, because of some special qualification or experience, it is in the interests of the efficiency of An Garda Síochána to do so. Mr. Donnellan did in fact make such a request to the Commissioner for such an extension, but this in fact was refused.
104. The fact that individual assessment is possible is an important consideration. Where there are a large number of people involved and it would be impractical to test every person then it may be proportional to use some form of age-proxy. Conversely, where there are few people to assess and such could be done relatively easily it would not be proportionate to use blanket proxies so as to determine personal characteristics. As stated in the Commission paper:
“A person’s health, maturity, ability to learn, experience, skill, willingness to work may often be ascertained by normal vetting procedures, individual assessments and good job specifications. A 50-year old secretary, for example, could be assumed to have certain types of experience not held by a 20-year old, but this alone should not justify automatic selection for the older applicant without an assessment of the merit of the 20-year old. The use of maximum entry ages for the police in many member states may for example be very questionable. In a Dutch case, a number of referees successfully challenged the age limits of 47 and 49 used by the Royal Dutch Football Association (KNVB) on the basis that individual assessment of each referee’s capability for the job of referee was entirely possible, and it was a breach of proportionality to set a fixed age limit.
[Further,] [a]ge limits may be necessary in particular industries to ensure a ‘turnover’ of workers and to encourage recruits into a profession: the Dutch Supreme Court has upheld the imposition of a compulsory retirement age upon airline pilots for this reason… [H]owever, the use of age limits that intended to simply shift the age profile of the company or which unreasonably narrow the age spread of new recruits may face great difficulties in showing objective justification.”
105. The Dutch Supreme Court case referred to as 16 pilots v. Martinaur Holland NV and the Association of Dutch Pilots, Hoge Raad [Dutch Supreme Court] (8th October 2004 – Nr. C03/077HR) should be noted. That case was taken by 16 pilots against Martinair Holland NV and the VNV (Dutch Airlines Association). A compulsory retirement age of 56 had been set for pilots. The court noted that in the 1970s the original justification for this would have related to traffic safety and health, since in the past flying could take a high physical toll on pilots. However, nowadays the primary purpose of the measure was to facilitate and to enhance a regular and predictable flow of pilots within the corps. Both the Cantonal and Supreme Court ruled that this rationale formed an objective justification. It should be observed that this conclusion was influenced by the fact that a pilot’s career was structured in such a manner that it was possible to reach the highest seniority before retirement.
International Jurisprudence:
106. Some flavour of the international jurisprudence relative to the special position of age as a ground for discrimination was also offered.
107. Attention was drawn by the Supreme Court of the U.S. in Massachusetts Board of Retirement et al. v. Murgia 427 U.S. 307 (1975) to the fact that:
“While the treatment of the aged in this Nation has not been wholly free of discrimination, such persons, unlike, say, those who have been discriminated against on the basis of race or national origin, have not experienced a ‘history of unequal treatment’ or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.”
Thus the U.S. Supreme Court felt that the aged did not constitute a “suspect class” for the purposes of equal protection. Nor did they constitute a:
“‘discrete and insular’ group… in need of ‘extraordinary protection from the majoritarian political process.’ Instead, it marks a stage that each of us will reach if we live out our normal span.”
108. The court, in that case, went on to consider the rational-basis of a mandatory retirement age of 50 for uniformed state police officers, whose functions were to protect persons and property and to maintain law and order. They were in effect the operational face of the force. The court felt that the mandatory retirement of officers rationally sought to protect the public by assuring “physical preparedness” of its uniformed officers. However, Marshall J. dissented from this position strongly criticising the “two-tier” test for equal protection which looked at law with “strict scrutiny and mere rationality” since it did not realistically represent the way the court did or should go about the consideration of equal protection. He contended that the use of “strict scrutiny” in relation to “suspect classes” results in almost all statutes subject to such scrutiny being struck down, and thus leads to a great reluctance on the part of the court to extend the categories of “suspect classes”. However, he says, this results in too much legislation being dropped to the bottom tier and being measured by mere rationality, which leads to the opposite result of almost all legislation being upheld. He strongly dissented to the court’s conclusion in the above case stating:
“There is simply no reason why a statute that tells able-bodied police officers, ready and willing to work, that they no longer have the right to earn a living in their chosen profession merely because they are 50 years old should be judged on the same minimal standards of rationality that we use to test economic legislation that discriminates against business interests.”
109. The U.S. jurisprudence on issues of equality is, I feel, of limited persuasiveness. The courts in the U.S. are very slow to interfere with legislative intent. Further, their considerations are based on far broader, amorphous considerations of a general right to equality before the law, whereas in this case we are looking at a positive piece of law, Directive 2000/78/EC, which lays out specifically what is required of legislation which purports to treat specific groups of people in different ways; it must be objectively justified and proportionate. Such a proportionality argument is peculiarly European; no such consideration is given to the idea that legislation might achieve a similar objective in a different and less restrictive way in the U.S. case law.
110. In the more recent case of Kimel et al. v. Florida Board of Regents et al. 528 U.S. 62 (2000) the court held that:
“States may discriminate on the basis of age without offending the Federal Constitution’s Fourteenth Amendment if the age classification in question is rationally related to a legitimate state interest; the rationality commanded by the Amendment’s equal protection clause does not require states to match age distinctions and the legitimate interests they serve with razorlike precision; under the Amendment, a state may rely on age as a proxy for other qualities, abilities, or characteristics that are relevant to the state’s legitimate interest, as (1) the Constitution does not preclude reliance on such generalisations, and (2) that age proves to be an inaccurate proxy in any individual case is irrelevant…”
111. As discussed above, this is wholly inconsistent with the line taken by the ECJ. Reliance on age-proxies must be proportionate, and even where there are legitimate aims for differences in treatment, such aims must still be necessary and appropriate.
112. The U.S. treatment of legitimate aims would also not be sufficient under the Directive. The Court in Kimel also held that:
“When conducting rational basis review under the equal protection clause the Federal Constitution’s Fourteenth Amendment, the United States Supreme Court will not overturn government actions unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that the court can only conclude that the actions were irrational; in contrast, when a state discriminates on the basis of race or gender, the court requires a tighter fit between the discriminatory means and the legitimate ends they serve; because an age classification is presumptively rational, the individual challenging its constitutionality bears the burden of proving that the facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decision-maker.”
113. Under the Directive, the burden of proof, once a prima facie case of direct discrimination is made out, is borne by the respondent who must justify the distinction. This burden equally applies to age discrimination as it does to race, gender and disability. Although there is a difference between different types of discrimination, such will go towards the justifiability of the discrimination; where it will be easier to justify differences in treatment on grounds of age, since these are inherently more likely to have a rational basis, compared, for example, to race. The Directive in no way states that discrimination on the ground of age is presumptively rational.
114. Although not as extreme as the U.S. case law, the jurisprudence from Canada and Australia are equally distinguishable on the ground that they are considering constitutional rights, rather than specific legislative protection, and thus the question of discrimination on the grounds of age is considered in a more generalised way.
115. Notwithstanding this however, it is worth noting in the Canadian context that s. 32(1) of the Canadian Charter of Rights and Freedoms confines the Charter’s operation to government actions. The Canadian Supreme Court in McKinney v. University of Guelph [1990] 3 SCR 229 found that it is deliberately so confined, and its purpose is as a check against government powers over the individual, and not as a tool to be used against private individuals. This is not the case with equal treatment under the Directive; the private sector is specifically included under Article 3(1).
116. There are two decisions from the U.K. which should also be mentioned: R (Carson) v. Work and Pensions Secretary and R (Reynolds) v. Work and Pensions Secretary, both reported at [2006] 1 AC 173. The facts of Carson were that the applicant was a pensioner living in South Africa. She had paid all the necessary contributions, continuing to make voluntary payments after emigration. When she turned sixty, she started to receive the same pension she would have received if she had been living in the United Kingdom. On 9th April 2001 the basic pension for United Kingdom pensioners was increased to reflect the rise in the United Kingdom cost of living. However pensioners ordinarily resident abroad are not entitled to these annual increases. The applicant thus continued to receive the basic pension. Nonetheless, despite acknowledging that she was being treated in a different way to those ordinarily resident, the Court found that she was in a “materially and relevantly” different position to a person resident in the UK. Once such a difference was apparent Parliament were entitled to treat such a person differently; indeed the Court noted it could have legitimately refused to pay her any pension at all. This particular case is, however, of limited relevance. It is clear that Ms. Carson was not being discriminated against on the ground of age, rather because of her status as a non-resident, or expatriate.
117. The Second case is more on point. The applicant, Ms. Reynolds, complained that because she was under the age of 25, she was paid jobseeker’s allowance and then income support at the reduced rate of £41.35 a week instead of the full rate of £52.20. She argued that Article 14 of the ECHR entitles her to be treated equally with people over the age of 25. Once again the Court found that since there were material differences between older and younger persons, in particular the expenses of older people were necessarily higher, that was sufficient to justify the difference in treatment.
118. In any event, the cases in Carson and Reynolds were not considered under the Directive, but under the UK Human Rights Act 1998. They are thus of limited persuasiveness. Before leaving them, however, I would like to comment on the following passages from the speech of Lord Walker. At p. 193 of the report he said:
“Age is a personal characteristic, but it is different in kind from other personal characteristics. Every human being starts life as a tiny infant, and none of us can do anything to stop the passage of the years. As the High Court of Australia said (in a different context) in Stingel v. The Queen (1990) 171 CLR 312, 330: ‘the process of development from childhood to maturity is something which, being common to us all, is an aspect of ordinariness.’”
This continues;
“There is nothing intrinsically demeaning about age. It may be disheartening for a man to be told that he cannot continue in his chosen job after 50 and it is certainly demeaning for a woman, air hostess, to be told that she cannot continue as a cabin crew member after the age of 40.”
119. There is no doubt but that age has been treated in a way different from other discriminatory grounds. This has been acknowledged in several Commission papers, as it has been in many judicial decisions. However I would be hesitant to come to the view that age, as a matter of policy or common acceptability, should be relegated to a form of doubtful importance within the overall family of discriminatory grounds. Whilst I acknowledge that the contrary view has strong support, nonetheless I think that context is critical when evaluating this issue. By context I mean the type of discrimination involved, the broad and historical societal background in which it takes place, the cultural and ethnic history of the relevant area, the protective provisions of, and access to, the legal system etc. As appears from para. 7 of the Massachusetts case, the reasons why certain discriminatory grounds have been elevated into a suspect class are because they were:
“Saddled with such disabilities or subjected to such a history of purposeful, unequal treatment or relegated to such a position of political powerlessness as to command extraordinary protection from the political process.”
If one was asked to provide a comparable context in this jurisdiction, I firmly believe that in respect of most if not all of the recognised discriminatory grounds, the resulting product in its composition would be very different to that which I have just quoted. So for my part, I would not be an enthusiast of compartmentalising grounds of discrimination, some of which may attract greater scrutiny than others. For all individuals who suffer discrimination, a thorough evaluation and, if necessary, a clear vindication, by appropriate measures is required.
120. Thus, for the above reasons, the international case law on age discrimination is of limited persuasiveness or application in the context of age discrimination in employment under the Directive.
Conclusions: The Directive:
121. With regards to compliance with Directive 2000/78/EC, firstly although the Regulation, by setting up a system of mandatory retirement, is prima facie direct discrimination, it can be said that the overall aim of the scheme is a legitimate one. In particular, given the peculiar structure of An Garda Síochána (paras. 34, 50 and others supra.), the aims of ensuring motivation and dynamism through increased prospect of promotion, the creation of the most useful pool of candidates possible for appointment to the position of Commissioner, are both rational and legitimate. These rationales were considered and outlined in more detail in relation to reasonableness, but my comments in relation thereto apply equally to this aspect of the challenge, being whether or not they are rational and legitimate in the context of the Directive. I thus note that the justifications advanced are sufficient to overcome the rationality challenge.
122. Secondly, nonetheless, in the context of the Directive these aims must be proportionate. As stated an important consideration in considering whether a measure will be proportionate is whether individual assessment would be possible in a given case, such that using an age-proxy would not be legitimate. In this regard I would place particular emphasis on the ability of, inter alia, the Assistant Commissioner to request an extension of his tenure in office. Such a request under Regulation 6(b) of the 1951 Regulations must I feel be viewed as a form of individual assessment. It must be presumed that when considering such a request the Minister will take into account the individual circumstances of the petitioner, for example his/her service record and skill set, as well as the needs of the force as a whole. The retirement age of 60, set by the 1996 Regulations, may therefore be seen as an activator for such a request, and consequently this type of individual assessment; at age 60, a person may apply to the Commissioner for a continuance, and the Commissioner should consider each application on an individual and case-by-case basis. In effect, despite the Plaintiff’s accumulated skill, his desire to continue and his grievance at the force losing his 40 years experience, the Commissioner did not consider these to be sufficient to ground an extension. Although a continuation was refused in this case, the procedure under Regulation 6(b) of the 1951 regulation serves to temper the severity of what would otherwise be an absolute retirement age; thereby rendering it, in my opinion, proportionate. It cannot therefore be entirely equated with a blanket policy type position.
123. Furthermore the structure of a Garda’s career is such that he can attain the highest office within his term of service and hold that position for a reasonable period. Moreover, and I know of no other employment position where this is possible, a member can retire after 30 years of service with a full pension at age 50. Thus, in addition to the financial package, which in this case is significant (see para. 9 supra.), a member’s age of retirement is such that the prospect of a second career is very much open.
124. Counsel for the Plaintiff put forward the suggestion that a fixed term contract might serve better for the rank of Assistant Commissioner, and that this would alleviate the problem of “blocking”, caused by Assistant Commissioners holding their position for upwards of ten years. Although this might be a more preferable option it is not for this Court to determine the employment policy of the Government in this regard, and as such it is a matter for the Minister and An Garda Síochána to decide. I thus do not propose to otherwise comment in this regard. I have thus come to the conclusion that the 1996 Regulations are proportionate.
125. I should also say that although much reference was made to the position of the Equality Act 2004 and it was suggested, albeit somewhat indirectly or even opaquely, that that Act in itself should be a yardstick against which the Regulation should be measured, this point was never fully explored and its correct place in contextual terms was never finalised. I therefore do not intend to deal with this matter individually. Instead I would merely note that any conclusions in relation to the Directive apply mutatis mutandis to any question of whether the 1996 Regulations are also compatible with the 2004 Act.
126. Before finishing, I must say that comments as to the legitimacy of the measures utilised in this case, as is usual, turn wholly on the specific facts of the case and such comments should not be taken as supporting the general legitimacy of all mandatory retirement or appointment ages. As noted, national measures relating to compulsory retirement ages are not excluded from consideration under Directive 2000/78/EC. Any discrimination with regards to age must, as put by that Directive, serve a legitimate aim or purpose, and the means taken to achieve that purpose must be appropriate and should go no further than is necessary, i.e. they should be proportionate.
127. For the above-cited reasons I therefore dismiss the Plaintiff’s case.”
Mc Carthy -v- H. S. E.
[2010] IEHC 75
Hedigan J.
“The Applicant’s Submissions
6. The applicant’s primary complaints in respect of the impugned decision are as follows. Firstly, the applicant submits that under section 19 of the Health Act 1970, the mandatory retirement age of 65 is solely stated as applicable to permanent officers. As the applicant was, at no time, a permanent officer, nor was any contract stating such in existence, the applicant was under the impression that this retirement age was not applicable to her circumstances. In support of this contention, the applicant noted that she had previously worked with fellow radiographers who she knew to be above the age of 65. Further to this, the applicant submits that a legitimate expectation existed on the basis of Ms Fitzpatrick’s assurances that she would assist in the matter.
7. Further to this point, the applicant noted the Public Services Superannuation (Miscellaneous Provisions) Act, 2004. One of the effects of this act was to abolish the compulsory retirement age for new entrants to the public service. Under Part 1 of Schedule 2 of the 2004 Act, section 19 of the Health Act 1974 was amended such that appointees subsequent to April 2004 would not be subject to the mandatory retirement age. Referring again to her status as a non-permanent officer, the applicant contends that this further supports her stance that the retirement age of 65 was not applicable to her, nor was she aware of same. Moreover, as it created the apparently irrational situation that one might have to retire at a younger age than a recent appointee, the effect of the old section 19 would be disproportionate and unfair in its effect.
8. The applicant further maintains that at all times she was unaware that 65 years of age was an applicable mandatory age of retirement in her circumstances. The applicant submits that it was not until August 2009 that she was made aware of this in communications from the respondent. Furthermore, the applicant highlights that in the “Terms and Conditions of Employment, Version: May 2009” on the respondent’s website that at no point in the 84 pages is reference made to the compulsory/normal retirement age. The applicant therefore argues that at no point could she be deemed to have been aware of the retirement age as a result of communications from the respondent.
9. The applicant lastly claims that under Council Directive 2000/78/EC, any discrimination based on age is prohibited. Although the directive notes that this is “without prejudice to national provisions” and that “treatment in connection with age may be justified” there must be a proportionate method utilised to achieve this justification. The applicant cites the case of Age Concern, England v Secretary of State for Business, Enterprise and Regulatory Reform C-388/07 and the judgment of the ECJ in March 2009 in which it stated that the option to derogate operates “only in respect of measures justified by legitimate social policy objectives”. There exists a “high standard of proof [to show that] the legitimacy of the aim relied on [is suitable] justification”. Counsel for the applicant submits that these criteria have not been fulfilled nor has the standard of proof been discharged. It is on these grounds that the applicant submits that the decision of the respondent be quashed and the orders granted.
The Respondent’s Submissions
10. The respondents reject the applicant’s contention that she was unaware of the retirement age and maintain that the termination of the applicant’s employment was lawful. The initial objection raised by the respondent was that there had been delay on behalf of the applicant in seeking judicial review, and that under Order 84 rule 21 of the Rules of the Superior Courts no relief could therefore be granted. In support of this contention, the respondent argues that the applicant commenced employment in June 2002. In her affidavit, the applicant remembers speaking with Ms Fitzpatrick in May 2009 in relation to the matter of retirement at age 65. Moreover correspondence confirming October 28th as the date of retirement was received in July 2009. The respondent first submits that the applicant was aware in 2002 that 65 was the applicable retirement age. In the alternative, the applicant was aware by May 2009 at the latest.
11. The respondent acknowledges that while this would technically fall within the maximum allowable 6 months, there is an onus to act promptly which it is claimed the applicant failed to do in the circumstances of the case. The respondent noted the dicta of McCracken J in de Roiste v Minister for Defence (High Court 28th June 1999) wherein the judge commented that “an application…must be made promptly, and it is only a secondary provision that…the application be made [within six months]”. The respondent concluded this argument claiming no mitigating factors had been proffered to invoke the Court’s discretion under Order 84.
12. The respondent’s second submission focused on the lawful nature of the termination of employment. The respondent conceded that the applicant was not furnished with written terms and conditions of employment upon commencing work in 2002, however Mr Hogan for the respondent argued that the applicant was employed on foot of an oral agreement between the parties, the terms of which are enumerated in the written contract of employment given to the applicant in August 2009.
13. The respondent submits on this basis that there was an implied contractual term in the applicant’s contract of employment that the retirement age of 65 was applicable to the applicant’s position. The respondent contends that this term can be implied as a matter of fact and/or on the basis of custom and practice. On the contention that this term is implied by fact, the respondent highlights the ubiquity of the retirement age of 65 throughout the public service (in June 2002) and asserted that the applicant must have been aware of this fact. The respondent cited the “officious bystander test” enunciated in Shirlaw v Southern Foundaries Ltd. [1939] 2 KB 206 in support of this point:
“Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying that if, while the parties were making the bargain, an officious bystander were to suggest some express provision for it in the agreement they would testily suppress him with a comment “Oh of course”.”
14. The respondent further noted the adoption of the officious bystander test in this jurisdiction in Carna Foods Limited v Eagle Star Insurance [1997] 2 ILRM 99. In the circumstances of this case, the respondent insisted that the retirement age of 65 be implied into the contract of employment as a matter of fact.
15. Further, and in the alternative, the applicant’s contract of employment was subject to the terms concerning retirement as implied by custom and practise. Such terms shall be implied where “practice [is] so well defined and recognised that the contracting parties must be assumed to have had it in their minds when they contracted”. In the context of employment, Mr Hogan referred the Court to O’Reilly v Irish Press [1937] 71 I.L.T.R 194 wherein Maguire P formulated the test that the practice must be:
“…so notorious, well known and acquiesced in that in the absence of agreement in writing it is to be taken as one of the terms of the contract between the parties…it is necessary in order to establish a custom of the kind claimed that it be shown that it was so generally known that anyone concerned should have known of it or easily become aware of it.”
16. The respondent concluded, therefore, that the retirement age of 65, virtually universal in the public sector, could readily be implied on the basis of custom and practice.
17. The respondent further stated that the retirement age of 65 was consistent with the applicant’s superannuation scheme. The relevant scheme provides that benefits be paid to members having attained the normal retirement age of 65. In the absence of an awareness that 65 was the applicable retirement age, the respondent stressed that the applicant must surely have been aware that a retirement age was in situ at the very least. Furthermore, the respondent drew the Court’s attention to a circular for employees of the respondent issued in 2005 wherein reference is made to the pensionable age of 65.
18. In response to the claim that a legitimate expectation was created by Ms Fitzpatrick’s assurance to “do her best” the respondent cited Fennelly J. in Glencar Exploration Plc v Mayo County Council (No.2) [2002] IR 84:
“Firstly, the public authority must have made a statement or adopted a position amounting to a promise or representation, express or implied, as to how it will act in respect of an identifiable area of its activity. I will call this the representation. Secondly, the representation must be addressed or conveyed either directly or indirectly to an identifiable person or group of persons, affected actually or potentially, in such a way that it forms part of a transaction definitively entered into or a relationship between that person and group and the public authority or that the person or group has acted on the faith of the representation. Thirdly, it must be such as to create an expectation reasonably entertained by the person or group that the public authority will abide by the representation to the extent that it would be unjust to permit the public authority to resile from it.
19. The respondent claimed that no factual evidence supported that a representation had been made; indeed the applicant acknowledged in her second affidavit that Ms Fitzpatrick told her there was nothing more she could do. Moreover, Ms Fitzpatrick would not be the relevant decision maker per the above criteria.
20. The respondent concluded by rejecting that there had been a breach of Directive 2000/78. The Court was referred to the case of Palacios de la Villa v Cortefiel Servicios SA [2007] ECR I-8531, in which the ECJ held that it is “not unreasonable for the authorities of a Member state to take the view that a measure such as that at issue in the main proceedings may be appropriate and necessary in order to achieve a legitimate aim in the context of national employment policy”. This case specifically dealt with the legality of terminating one’s employment at 65 with an entitlement to a retirement pension. The Court further noted that although such persons may be inhibited in the further pursuit of their employment, the financial compensation (pensions) available as a consequence of retirement contradicted any claim that the legislation could be deemed unreasonable.
DECISION OF THE COURT
21. Dealing first with the delay ground raised by the respondent, Order84, rule 21(1) provides that any application for judicial review must be made promptly, and within either three or six months. An order for certiorari must be sought within six months from the event in question or upon gaining awareness that an issue arose, and must also be made promptly. In my view there was not sufficient delay to refuse the applicant’s case. Whilst Order 84 does indeed require an applicant to act promptly in seeking judicial review, such promptness (or acquiescence as the case may be) must be viewed in light of the prevailing circumstances.
22. The applicant began employment in June 2002 and was not, nor has she ever been, furnished with a written memorandum of the terms and conditions of her employment. The issue of retirement was first raised with an agent of the respondent in April 2009. Despite the best efforts and intentions of Ms Fitzpatrick to accommodate the applicant, no further information was forthcoming until August 2009 when the applicant received a letter advising of her approaching retirement. Having regard to the applicant’s subsequent actions in engaging legal advice and the respondent’s relative failure to address the applicant’s concerns promptly, I find there to have been no unreasonable delay on the applicant’s part. I consider she acted with reasonable promptitude in all the circumstances.
23. In addressing the substantive issues raised, the crux of the application lies in whether the retirement age of 65 could be viewed as having been implied into the contract as submitted by the respondent. Two alternative approaches were suggested utilising the “officious bystander test” on the one hand and implication by custom on the other. It is my opinion that in the circumstances of the case, the former provides a more suitable formula to determine whether such a term has been implied, although there is necessarily a large degree of overlap.
24. The court is of the opinion that such a term should indeed be implied into the applicant’s conditions of employment. The applicant is a highly intelligent woman who is legally qualified. It is difficult to accept that she had no knowledge of the retirement age applicable in that part of the public service in which she worked. Furthermore, irrespective of any actual knowledge of this fact, I would consider the dicta of Maguire P. in O’Reilly that anyone concerned “should have known of it or could easily have become aware of it” to be particularly apt in this case. Moreover in addition to the broad awareness of the retirement age among most working adults, the applicant may be deemed as “on notice” that there was an applicable retirement age by virtue of the superannuation scheme. The superannuation scheme, of which she was a member, made reference to the existence of a retirement age, and more specifically, a cut off for contributions at age 65. I therefore find that such a term can be implied into the terms and conditions of employment.
25. It is appropriate, lastly, to deal with two further issues raised by the applicant. I do not believe any legitimate expectation arises on the evidence adduced. As mentioned by the respondent, Ms Fitzpatrick was not in a position to make a representation which could give rise to a legitimate expectation. Moreover, no representation appears to have been given on the facts, and it would appear that Ms Fitzpatrick endeavoured as best she could to assist the applicant and was forthright in her praise for the applicant’s standard of work. As to the Council Directive 2000/78, the case referred to the Court of Pallacio de la Villa adequately affirms that a law providing for a retirement age of 65 could not be seen as discriminatory or unreasonable in its effect. Indeed such provision is almost universal throughout the European Union.
Conclusion
26. I am satisfied that in all the circumstances the applicant acted with reasonable promptitude in bringing these proceedings and I reject the respondent’s argument in that regard. I am however satisfied that the applicant is not entitled to the reliefs sought. In my judgment a term providing for the applicability of the retirement age to the applicant’s tenure as a term of her employment with the respondent may be implied for the reasons set out above. The test in O’Reilly permits the court to find that even were there an absence of direct knowledge of the retirement age, the applicant should have been aware of this information and could easily have obtained it had she looked. Consequently, the termination of the applicant’s employment is lawful by reason of her having reached the retirement age relevant to her. I also find there was no representation made to the applicant which could give rise to a legitimate expectation that she would be kept on after her retirement. Finally, Council Directive 2000/78 does not prohibit the state from maintaining a retirement age of 65. I must refuse the reliefs sought.”
Elizabeth Sweeny v Aer Lingus Teo
DEC-E2012-135
“1. DISPUTE
1.1 This dispute concerns a claim by Ms Elizabethe Sweeny that she was subjected to discriminatory treatment by the respondent on the grounds of age in terms of section 6(2) of the Employment Equality Acts (hereafter referred to as ‘the Acts’), and contrary to section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 11 March 2008 under the Acts. On 22 March 2011, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes – an Equality Officer – for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 26 May and 24 June 2011. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT’S SUBMISSION
2.1 The complainant submitted that she has been employed by the respondent from 25 September 1961 until 1 January 2008.
2.2 The complainant submitted that in September 2007, she was advised that her retirement would commence on 1 January 2008. She immediately challenged this intention and pointed out that there was no retirement date in her contract, that any date ever mentioned was for the purposes of her pension benefits, and that this is separate to her employment contract.
2.3 The complainant submitted that on 20 December 2007, in spite of her challenge which was ignored, the respondent informed her that on the grounds of age she had to remove herself from the workplace within four working days. The complainant further submitted that she had no choice but to comply with that instruction.
2.4 By way of background the complainant submitted that the age of 65 is used as a reference point for the definitions of ‘early’ ‘normal’ and ‘late’ retirements and is not contained in the contract of employment. The complainant submitted that the rules for the occupational pension scheme are independent of the employment contract but that the respondent is using this as a reason for ceasing her employment.
2.5 The complainant submitted that at no stage during her employment was mandatory retirement clearly communicated to her and that at no stage did she expect or believe that she would be facing compulsory retirement.
2.6 The complainant submitted that she left employment from 2 January 2008 as directed by her employer.
3. SUMMARY OF THE RESPONDENT’S SUBMISSION
3.1 The respondent submitted that the claimant is entirely wrong and misconceived when she asserts that there is no specified condition of here employment relating to the date of retirement, in that every employees contract of employment has been subject to an express or implied term that it ran until the normal retirement date, that is after attaining the age of 65.
3.2 The respondent submitted that the contractual document in existence dated from the early 1960’s and makes no reference to a retirement date. However, the absence of an express reference does not mean that there was not an implied termination date.
3.3 The respondent submitted that from an examination of its records, only one person in the preceding 10 years remained in employment after normal retirement age and that, in that case a senior technical specialist was asked to remain to allow for the orderly handover of duties and knowledge to his successor. It was also noted that the vast majority of the respondent’s employment have left employment in advance of their normal retirement age.
3.4 The respondent submitted that it does not rely on the normal retirement date provided for in its pension scheme as determining the date of termination but rather it relies on the facts of its operations and referred to the EAT decision of Delaney v Electrical Contractors Safety and Standard Association Limited (UD1322/2003). In that decision, the EAT explicitly dealt with the question of establishing a normal retirement date for the purposes of the Unfair Dismissals Acts, 1977 and determined, inter alia, that “. . . it is clear that the term normal retiring age means a definite or particular retiring age in the relevant employment”. The respondent further submitted that its normal retirement age is well known to all staff, including the complainant.
3.5 The respondent submitted that Section 34(4) of the acts provides for the imposition of a normal retirement date and that this is not discriminatory. The respondent submitted that the validity of this section is beyond doubt having regard to the decision of the Court of justice of the European Union in Palacios de la Villa v Cortefiel Servicios SA (Case C-411/05). In this case the Court of Justice determined that the national legislation in question was objectively and reasonably justified by a legitimate aim relating to employment policy and the labour market.
3.5 The respondent also cited the case of Donnellan v Minister for Justice, Equality and Law Reform (High Court [2008] IHEC 467) wherein McKechnie, J held that whilst national Governments could impose a retirement age by means of domestic legislation, that legislation must be “compatible and comfortable” with the Directive. Mr. Justice McKechnie went on to hold that the compulsory retirement age of Assistant Garda Commissioners imposed by statutory instrument was objectively justified by reference to a legitimate aim and the means used were appropriate and reasonable.
3.6 The respondent submitted that it is clear that in each case where the European Court of Justice and the Irish High Court have each expressly addressed the issue of mandatory retirement ages, they have upheld the validity of. It further submitted that if the complainant’s contentions were successful, it would be perverse that the independent trustee of the pension scheme could pay pension benefits from a normal retirement date (under the scheme) while an employee continued to draw his or her salary from the respondent.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent discriminated against the complainant on grounds of age, in terms of section 6 of the Acts and contrary to section 8 of those Acts.
4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, stated that “… the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent …”.
4.4 Having heard the evidence from both parties, I am satisfied that the respondent has established that the retirement age for relating to its non-flying staff as being 65. I note that prior to the enactment of the Employment Equality legislation, this limit was set at 60 for women but that this was amended to 65 for both men and women to reflect the provisions of the legislation. I also note that no age was explicitly set out in the complainant’s contract of employment, but that it was common practice for those employees who reached the age of 65 to retire. I further note that the complainant was an employee was a trustee of the pension scheme. I appreciate that the majority of staff leaving the respondent’s employment in recent years have done so by way of early retirement. However, I am satisfied that the complainant was aware, or reasonably ought to have been aware, that 65 was the retirement age for non-flying staff in the respondent’s employ. Although the complainant suggested that she had not been informed of this change, I am satisfied that, amongst other things, her time spent as a trustee of the pension scheme would have made her aware of those changes. Therefore, although her contract of service does not contain an express provision stating a retirement age, I find that 65 was the implied retirement age for all of the respondent’s non-flying staff and that an appropriate provision can be inferred into the complainant’s contract.
4.5 There can be no doubt that the decision to retire someone at a particular age is a decision that is influenced by that person’s age. The Court of Justice of the European Union has identified such decision as amounting to direct discrimination on a number of occasions (e.g. Domnica Petersen v Berufungsausschuss fur Zahnärzte fur den Bezirk Westfalen-Lippe Case C-341/08; Deutche Lufthansa AG v Gertraud Kumpan Case C-109/09 and others).
4.6 The respondent relies on the provisions of Section 34(4) of the Acts as a defence for its position in imposing a mandatory retirement age upon the Complainant. Section 34(4) of the Acts states that
(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.
4.7 The respondent submitted that the validity of Section 34(4) is beyond doubt having regard to the two cases cited, Palacios de la Villa v Cortefiel Servicios SA (Case C-411/05) and Donnellan v Minister for Justice, Equality and Law Reform (High Court [2008] IHEC 467). No arguments to the contrary were put forward at the hearing and I am satisfied that, having considered both judgements, this is the case.
4.8 However, in regard to the context of both of these cases, I note that both refer to situations where national legislation has imposed a specific retirement age. In the instant case, no argument was put forward as to what legislation is in place imposing a specific retirement age upon the complainant.
4.9 In considering the impact of Section 34(4), I note that McKechnie, J stated in the Donnellan judgement that “Any discrimination with regards to age must, as put by that Directive, serve a legitimate aim or purpose, and the means taken to achieve that purpose must be appropriate and should go no further than is necessary, i.e. the should be proportionate”.
4.10 In the case to hand, the only argument that has been put to me as regards justification in terms of a “legitimate aim or purpose” is that “it would be perverse that the independent trustee of the pension scheme could pay pension benefits from a normal retirement date (under the scheme) while an employee continued to draw his or her salary from the respondent.”
4.11 However, it is well established in both Community and Irish law that a pension entitlement does not necessitate retirement (Case 262/84 Vera Mia Beets-Proper v Van Lanschot Bankiers NV [1986] ECR 773; Case 152/84 Marshall v. Southampton and South West Hampshire Area Health Authority [1986] ECR 723) & (Howell v JJ. McCreery (Case No. UDA654/2007) January 3, 2008; Donegal County Council v Porter (1993) E.L.R 101; Bannon v Two Way International Freight Services Limited (Case No. UD127/2003). Accordingly, I find that, in this case, no legitimate aim or purpose to justify discrimination has been put forward.
4.11 Therefore, I find that the complainant has established facts from which discrimination may be inferred and that the onus to rebut that presumption falls upon the respondent. In the circumstances of the extant case where there is an absence of a justification, along the lines noted by McKechnie, J above, I find that the complainant is entitled to succeed.
4.12 When considering the amount of redress, I have had due regard to the fact that the complainant has been in receipt of a full pension from the date of her retirement.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the age ground has been established, and that the respondent has failed to rebut that presumption. In the circumstances outlined above, this complaint succeeds.
5.2 In accordance with section 82 of the Acts I award the complainant €5,000 in compensation for the effects of the discrimination suffered. As this does not include any element of remuneration, it is not subject to income tax.”
Paul Doyle v ESB International Limited
DEC-E2012-086
“1. Dispute and delegation
1.1 This dispute concerns a claim by Mr. Paul Doyle (hereafter “the complainant”) that he was subjected to discriminatory treatment in relation to a compulsory retirement age in ESBI (hereafter “the respondent”) on the grounds of his age. The complainant was compulsorily retired on 22 February 2008 two weeks after his sixty-fifth birthday.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 11 June 2008 under the Employment Equality Acts. On 6 December 2011, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- an Equality Officer – for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 27 January 2012. Final materials relevant to the investigation were received by me on 18 February 2012.
2. Case for the complainant
2.1. The complainant is a graphic designer. He worked with the respondent from 1995 to 2008. The complainant, having reached the age of 65, was retired from his role. Shortly before his birthday, on 23 January 2008, an email from a facilities manager was circulated to the complainant’s colleagues announcing his retirement and inviting them to drinks to mark his departure.
2.2. The complainant subsequently wrote to the respondent’s HR manager stating his belief that the provisions of his contract did not require for him to retire on his 65th birthday. In reply, the complainant was informed that he must retire at the age of 65. He was also informed that in order for the complainant to engage in a contract work with the respondent after reaching 65 years of age a “break of employment would be required post retirement”.
2.3. It is the complainant’s case that he was forced to retire and dismissed at the age of 65 in breach of both the Employment Equality Acts 1998-2008 and the provisions of Council Directive 2004/78/EC of November 2000 establishing a general framework for equal treatment in employment and occupation.
2.4. It is the complainant’s case that he was compulsorily retired on the ground of his age. It was submitted that this constitutes direct discrimination and is contrary to the Acts. The entire reason for the retirement was the complainant’s age. The complainant relied on McCarthy v Calor Teoranta in which the Labour Court stated that:
“The Court of Justice appears to have held that a Member State cannot introduce a mandatory retirement age unless there is objective and reasonable justification in so doing. It would appear axiomatic that an individual employer would be similarly circumscribed in applying a contractual retirement age.”
2.5. There is no contractual retirement age in the complainant’s contract of employment. Ireland does not have a mandatory age for retirement in its national legislation. Therefore, the respondent is in breach of the Community law of non-discrimination on the ground of age. It was submitted that the derogation in the Directive from the right to non-discrimination is directed at Member States as opposed to individuals. It was submitted that in the absence of a written retirement policy, it was impossible for such a policy to be properly policed by the Equality Tribunal. The complainant submitted that none of the documents provided by the respondent to the investigation is evidence of a written retirement policy having been generated by the respondent. Therefore, it is impossible for the Tribunal to satisfy itself that the respondent’s retirement policy pursues the aims asserted by the respondent and whether the means adopted to pursue such aims are appropriate and necessary.
2.6. In accordance with section 6(1) of the above Acts, the complainant has clearly suffered less favourable treatment than those of a younger age by being forced to retire at the age of 65.
2.7. The complainant refuted that the respondent had fixed a retirement age in accordance with section 34(4). Instead the respondent is seeking to rely upon the claimant’s right to a pension at 65 under the terms of a pension scheme of which he is member. It was submitted that it is well established in both Community and Irish law that a pension entitlement does not necessitate retirement.
2.8. It was submitted that the decision in Case 144/04 Mangold v Rüdiger Helm held non-discrimination on the ground of age to be general principle of Community law. That is, non-discrimination is mandated by the Treaties. Therefore there can be no doubt as to the principle having direct horizontal effect as between private actors. At paragraph 77 of its judgment, the Court stated:
“it is the responsibility of the national court, hearing a dispute involving the principle of non-discrimination in respect of age, to provide, in a case within its jurisdiction, the legal protection which individuals derive from the rules of the community law and to ensure that those rules are fully effective, setting aside any provision of national law which may conflict with that law (see, to that effect, Case 106/77 Simmenthal [1978] ECR 629, paragraph 21, and Case C-347/96 Solred [1998] ECR I-937, paragraph 30).”
2.9. It was submitted that it is therefore necessary for this Tribunal to ensure individual compliance with the principle and with the Directive.
2.10. The derogation within the Directive is directed only at national measures with legitimate aims. In Case 411/05 Felix Palacious de La Villa v Cortefiel Servicios SA, the then European Court of Justice held that a state could set a mandatory retirement age of 65 as it had the legitimate aim as part of national employment policy to promote employment for under 65s. The mandatory retirement age was used to absorb high unemployment and to promote better distribution of work between generations. The measure was found to be less favourable treatment but was objectively and reasonably justified in the context of national law by a legitimate aim relating to employee policy and the labour market. It was submitted that the less favourable treatment that the complainant has experienced cannot be justified as there is no national legislation in place to facilitate it. The justification provided for in the directive is clearly not directed at the respondent. In the recent opinion of Advocate General Mazak in Case-C388/07 Incorporated Trustees of the National Council on Ageing (Age Concern of Ireland) v. Secretary of State for Business, Enterprise and Regulatory Reform, Unreported 23 September 2008:
“targets national measures, which reflect social and employment policy choices and not individual decisions of employers”
3. Case for the respondent
3.1. The respondent is a wholly owned subsidiary of Ireland’s Electricity Supply Board (ESB), a vertically integrated utility that has a number of ring fenced divisions operating independently in the Single Electricity Market. The respondent employs over 1200 staff across four distinct businesses.
3.2. The respondent rejects the validity of the complainant’s case for the following reasons:
1. It is clear that the respondent has fixed its retirement age. Such a policy has operated since its inception and that the retirement age of 65 is a clear term and condition of the contract of employment of employees and a long-standing custom and practise of the respondent. It was submitted that the complainant by his own actions has demonstrated that he knew of the retirement age of 65. The respondent wishes to rely on McCarthy v HSE that held that an employer can establish that there is a fixed retirement age by reference to custom and practice and to a company pension scheme even in circumstances where a pension age is not set out in a contract of employment. Hedigan J went on to state that Council Directive 2000/78 did not prohibit the State from maintaining a retirement age of 65. A similar conclusion was reached by the EAT in Molloy v Connacht Gold.
2. The complainant had requested the right to remain with the respondent for an additional year. The request was referred to human resources but as there were no exceptional circumstances no offer of a fixed term contract could be made. The complainant was therefore treated in the same manner as any other person seeking to stay on beyond the retirement age.
3. The respondent has never represented to the complainant that he could work past 65 or offered any inducements or warranties to that effect.
4. The respondent operates an award winning pension scheme that allows employees to retire between the ages of 50 and 65. The retirement age is included in the pension scheme of which the complainant is a member.
3.3. As the Employment Equality Acts do not provide for a definition for ‘fix’ the word must be given its ordinary meaning. The exception in the Acts must therefore be interpreted as applying to arrangements, agreements or decisions on retirement ages. There is no requirement that the arrangement be in writing. It can only be interpreted as meaning that the age must be clearly arranged, agreed or decided upon.
3.4. It was further submitted that while section 34(4) does not require the respondent to show that the fixing of the retirement age is objectively justified, the respondent’s reason for fixing a retirement age are justifiable in national and European law. The respondent submitted that it must be able to provide for promotion opportunities and career pathways in order to retain younger employees. It was submitted that the respondent allocates extensive resources (approximately €45000 ) in training its employees. The respondent employees are therefore well trained and very mobile and if these employees cannot progress within the respondent employ they will go elsewhere. Staff retention is therefore a crucial consideration for the viability of the respondent business. Failure to hold to its most valuable resource would deprive the respondent of a valuable skill set and the loss of money spent on training. Such a notion of sharing employment between generations has been found to be objectively justifiable by the Court of Justice .
3.6. Furthermore it was submitted that the majority of the respondent’s staff deal with electricity. It was submitted that increasing the retirement age would necessitate – for health and safety reasons- physical examinations that might cause embarrassment and humiliation to employers. The fixed retirement age has the advantage of not requiring the respondent on dismissing employees on the grounds that they are no longer capable of working.
3.7. It was submitted that this Tribunal does not have jurisdiction to set aside a provision of a statute as has been requested by the complainant. The respondent relied on Minister for Justice, Equality and Law Reform and Commissioner of An Garda Siochana v Director of the Equality Tribunal and Ors to this effect.
4. Conclusion of the equality officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of ‘sufficient significance’ before a prima facie case is established and the burden of proof shifts to the respondent. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA0917 where it stated that section 85A: “places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.
4.2. It is clear that a decision to retire a person at a given is age is a decision that is influenced by that person’s age. A number of Court of Justice decisions have identified such decisions as direct discrimination. Such discrimination however can be rebutted by objectively justifying such treatment and the Court has provided a non-exhaustive list of such justifications. It is clear that direct discrimination is also prohibited under the Acts. However, I find that section 34(4) provides for an exemption in circumstances where retirement on the ground of a person’s age is ‘fixed’.
4.3. Extensive submissions and arguments where put before this Tribunal as to what its jurisdiction is in relation to the interpretation of EU law and whether it is entitled to make decisions concerning European jurisprudence and applicability to Irish law. It was suggested that the case be adjourned to determine whether the Tribunal had jurisdiction to proceed with the complex facts before it. The complainant objected to such an approach on the grounds that the complaint had been with this Tribunal for over three years and that the complainant wished to proceed with this claim without further delay. The complainant was not challenging the provisions of the Employment Equality Acts.
4.4. In relation to my jurisdiction. It is clear that this Tribunal is the court of first instance in matters relating to discrimination in the workplace. I find that this Tribunal must work on a presumption that the legislation governing it has correctly and properly implemented the Council Directives that it purports to give effect to. It is clear that this Tribunal has no jurisdiction to consider whether correct implementation has occurred in the member state. Nor does it have jurisdiction to set aside a provision that is contained in a statute. That said, I am satisfied that I do have an obligation to interpret these Acts in a manner that is harmonious ‘in the light of’ directives in so far as such an approach does not lead to absurdity or to a interpretation that is contra legem. Approval of such an approach was confirmed by the Supreme Court in Nathan v Bailey Gibson Limited.
4.5. I find that much of the national case law cited to for the purposes of this investigation turn on their facts. I note that cases successful cases for the complainants have included circumstances where a respondent has not been able to establish a retirement age whereas I note that the ability to prove facts supporting a custom and practice have not resulted in a finding of unfair dismissal . Other cases have included an employee’s legitimate expectation arising from a contractual situation . None of these cases have considered section 34(4) of the above Acts. Equally, no consideration has been given to Council Directive.
4.6. In McCarthy v Calor Teoranta, the Labour Court went on to hold that the complainant in that case was given a warranty by the respondent that if he took the option of redundancy and re-employment at lower pay he could work until the age of 65. Accordingly, when the respondent terminated the complainant’s employment, it did so on the basis of his age and thus treated him differently than a person in a comparable situation who had not attained the age of 60. I find that facts of the current case are clearly distinguishable from those set out in McCarthy. The Labour Court did, however, make an observation that other facts may have supported a case that may have highlighted an incompatibility between section 34(4) of the Acts and the proper transposition of Article 6 of the Directive. While the court did not elaborate what such an incompatibility in its view may be it, it is clear that the Labour Court was speculating that a reliance on a fixed retirement age, based on contract, may not be compatible with test set out in the Council Directive.
4.7. Retirement ages have also been considered by the High Court. It is clear that McKechnie J. in the Donnellan case carefully examined the facts of that case in relation to the Council Directive only. In doing so, he adopted the objective justification test. In McCarthy v HSE , Hedigan J. in an obiter comment suggested that there is nothing in the Council Directive prohibiting the State from maintaining a retirement age of 65 and was satisfied that such a matter could be determined on implied contract term. Citing Palacios de la Villa the learned judge found that a retirement age of 65, resulting in retirement (that is a situation where a person is in receipt of a pension), could not be discriminatory. Neither case considered section 34(4) of the above Acts or the question whether the directive has been properly transposed into national law. It is clear that the learned judge in Donnellan accepted that the objective justification test was required when the plaintiff was asserting his rights under the Directive.
4.8. It is clear that I have no function to make a legally binding decision as to a party’s retirement age as per contract per se. In order to address the issue of section 34(4) I must make a finding of fact in relation to the complainant’s retirement age. In this case, it a common fact that the respondent has a maximum retirement age of 65 and that the complainant was on notice of this retirement age. While it was argued that the term ‘fixed’ in section 34(4) ought to be given it ordinary meaning, that being arranged or agreed upon, I am not satisfied that a reliance on an arranged or agreed upon retirement age based on contract terms alone is sufficient to rebut the inference of age discrimination. A harmonious interpretation of section 34(4) in conjunction with Article 6(1) implies that for a retirement age to be ‘fixed’ by a respondent evidence of a planned and systematic approach to retirement ages is required. Such evidence is set out in the objective justification test.
4.9. I note that it was argued by the complainant that any reliance of Article 6(1) was only available for state bodies. I find that the Employment Equality Acts clearly extends the principle of the derogation to private actors also.
4.10. I note that The Court of Justice in Case C-388/07 The Queen, on the application of: The Incorporated Trustees of the National Council on Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform stated at paragraph 3:
“Article 6(1) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation gives Member States the option to provide, within the context of national law, for certain kinds of differences in treatment on grounds of age if they are ‘objectively and reasonably’ justified by a legitimate aim, such as employment policy, or labour market or vocational training objectives, and if the means of achieving that aim are appropriate and necessary”.
I am therefore satisfied that any exemption allowing for direct discrimination on the grounds of age must be objectively and reasonably justified by a legitimate aim and that the means of achieving such an aim must be appropriate and necessary. In order to give section 34(4) a harmonious interpretation, it is clear that ‘fixed’ must be understood in a manner that supports the objective justification test set out in Article 6(1). It is clear that such a justification test cannot be directed at the circumstances of the individual complainant – the respondent was not relying on the personal characteristics or any poor performance of the complainant – but must be based on comprehensive policy grounds.
4.11. I note that the respondent does not have a written employment policy per se. I am however satisfied on the full facts of this case that the respondent has a well established practice of compulsorily retiring its employees to a pension when they reach the age of 65 (employees can also elect to retire earlier). There was no evidence to support that this practice has been varied in any circumstances. It is clear that the respondent will, in certain exceptional circumstances, re-engage over 65s on fixed term contracts for project purposes. I am satisfied that the respondent had considered the availability of such an extension for the complainant on his request. The request was turned down because there were no exceptional circumstances that would have justified such an extension. I find that the fact that the respondent has a policy that enables over 65s to remain in certain circumstances clearly tempers the existence of an absolute retirement age.
4.12. I am also satisfied that the respondent has carefully considered the reasons as to why the retirement age is capped at 65 and that there is a clear employment policy supporting such a cap. The logic for such an exemption in my view is that age is different from other protected grounds. Age is not binary in the sense that a person is a man or a woman, a Traveller or a non-Traveller, a heterosexual or a homosexual, etc. Every person has an age, which as a continuum, changes over time. A young person in the respondent organisation will eventually benefit from the protections that an older person has enjoyed and, in turn, an older person will already have benefitted from a provision that has favoured young people.
4.13. I note that the respondent’s main aim is to build and maintain electricity infrastructures domestically and internationally. I accept that work involving electricity is of such nature that legitimate health and safety concerns relating to a genuine occupational requirement with older staff may arise. I also accept that the carrying out of compulsory medical examinations could cause embarrassment to some employees. While I do note that such ‘genuine occupational requirement’ does not apply to the complainant whose occupation was that of a graphic designer I do find that a legitimate employment policy means that a respondent is entitled to maintain a retirement age that ensures cohesion among all of its employees. Having different rules of retirement for different employees may threaten the respondent employees’ cohesion and open up other areas of discrimination that may not be subject to an objective justification test. Furthermore, the size of the respondent organisation also means that carrying out individual assessments may be impractical and I find that a use of an age-proxy (65) in the circumstances of this case is a proportional tool.
4.14. Furthermore, I am satisfied that the respondent spends extensive resources and time in training its new employees. I am satisfied that in order to achieve this aim the respondent must ensure that it can offer career pathways to such employees and ensure vacancies for upward post become available. This is a necessity to ensure retention, motivation and dynamism among the respondent staff. I am satisfied that the respondent wishes to establish an age structure among its younger and older employees in order to encourage the recruitment and promotion of young people and to facilitate good personnel management. I am therefore satisfied that the respondent has an established a legitimate employment policy with a legitimate aim for the reason why, at the latest, employees with the respondent must retire at 65 years of age.
4.15. I find that in the full circumstances of this case that 65 is an appropriate and proportionate measure for the purposes of the legitimate aim of the respondent.
5. Decision
5.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts:
5.2. I find that the complainant has established a prima facie case of discriminatory treatment on the age ground. The respondent has successfully rebutted this inference. Therefore, the complaint fails.”
O’Neill V Fairview Motors Ltd
DEC-E/2012/093
“1. DISPUTE
This dispute involves a claim by Mr. John O’Neill (“the complainant”) that he was (i) discriminated against by Fairview Motors Ltd. (“the respondent”) on grounds of age, in terms of section 6(2) of the Employment Equality Acts 1998 – 2008 and contrary to section 8 of those Acts in relation to training and (ii) dismissed by the respondent in circumstances amounting to discrimination on grounds of age, in terms of section 6(2) of the Employment Equality Acts 1998 – 2008 and contrary to section 8 of those Act when it terminated his employment in July, 2008 when he reached the age of sixty-six years. The respondent rejects the complainant’s assertions in their entirety and states that the termination of his employment was in accordance with the company policy of retirement for operational staff on reaching the age of sixty-six years.
2. BACKGROUND
2.1 The complainant was employed by the respondent as a motor mechanic from November, 1989 until his employment ceased at end July, 2008. He asserts that the respondent denied him access to training opportunities in November, 2006 and again during 2007 because it believed he was due to retire, initially in July, 2007 and then following discussions between the parties, in July, 2008. It is submitted on behalf of the complainant that this constitutes less favourable treatment of him on grounds of age contrary to the Acts. He further asserts that the respondent’s unilateral decision to terminate his employment in July, 2008 solely as a consequence of him reaching the age of sixty-six years amounts to age discrimination contrary to the Acts. The respondent rejects the complainant’s allegation that it discriminated against him on grounds of age as regards access to training. It further states that its decision to terminate his employment on him reaching the age of sixty-six years was based on a compulsory retirement age operated by it and submits that such actions do not constitute age discrimination in accordance with the exemption provided at section 34(3) of the Employment Equality Acts, 1998-2008 and seeks to rely on this provision in that regard.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2008 to the Equality Tribunal on 20 November, 2008. In accordance with his powers under the Acts the Director delegated the complaints to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaint commenced on16 March, 2011, the date the complaints were delegated to me. The parties had filed submissions and a Hearing on the complaint took place on 15 September, 2011.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant states that he commenced employment with the respondent as a mechanic in November, 1989. He adds that he did not receive any written contract of employment during the time he worked for the respondent and that the respondent did not have a Staff Handbook. Consequently, he states that he was never informed he would be required to retire on his sixty-fifth birthday – 23 July, 2007. He states that in May 2007 the owner of the respondent (Mr. G) approached him and informed him (the complainant) that he would have to retire in a few months time on reaching the age of sixty-five years. The complainant states that he informed the respondent he felt fit and well and capable of continuing at work and he did not therefore want to retire. He adds that they discussed matters concerning the complainant’s entitlement to a State Pension – which he would become entitled to at sixty-six years of age- that the respondent offered him two six month contracts to bring him to that age, which he refused and that it was agreed the complainant would continue to work as usual. In the course of the Hearing the complainant stated that he understood this to be an extension of his contract for a further year when the matter would be discussed again. He also rejected the respondent’s assertion that there were issues with his performance in May/June, 2008 and offered explanations for the events which occurred.
3.2 The complainant states that he continued to work for the respondent after the abovementioned events. He adds that he wrote to the respondent in early May, 2008 advising that he did not wish to retire on reaching the age of sixty-six years. He states that he received no response to this letter and he subsequently approached Mr. G on the matter. The complainant states during this conversation – which was somewhat heated – Mr. G stressed that he (the complainant) would be retired at the end of the following July. The complainant states that there was no further communication between the parties on the matter until 29 July, 2009 when Mr. G approached him and told him that he would be taken off the payroll from the following Friday. The complaint submits that this amounts to discrimination of him on grounds of age contrary to the Acts as the only reason his employment was terminated was because he had reached the age of sixty-six years. The complainant states that to his knowledge no other mechanic has retired from the respondent on reaching the age of sixty-five years and he is not aware of any policy or practice generally in the industry of a retirement age. In the course of the Hearing the complainant stated that he expected to have been able to continue working for the respondent indefinitely so long as his health permitted and thought maybe given his particular expertise that he might move to the Stores Area, although nobody else had ever done this.
3.3 The complainant notes the determination of the Employment Appeals Tribunal in Kiernan v Iarnród Éireann1where that Tribunal held where an employer relies on the normal retirement age of the employee as a defence for lawfully terminating that person’s employment, the precise retirement age should be given to the employee in writing and it is submitted on his behalf that this principle applies equally under the employment equality legislation. The complainant also relies on the determination of that Tribunal in Bannon v Two Way International Freight Services Ltd2 where it held that in circumstances where the complainant did not receive a contract of employment or a Staff Handbook, the respondent had failed to establish that a compulsory retirement age of sixty-five years was an integral part of the complainant’s conditions of employment. The complainant also seeks to rely on the judgement of High Court in Donegal County Council v Porter & Others3 where Flood J held that the claimants had a legitimate expectation to continue in employment until the age of sixty years, once they were fit and capable of performing the functions attached to the post. It is submitted on behalf of the complainant that he was fit and capable of performing the tasks associated with his post and no medical assessment was undertaken by the respondent to assess his capability in this regard. It is further submitted on his behalf that no evidence was adduced by the respondent that a custom and practice of a particular retirement age existed at any time, either in the respondent or the sector generally, in respect of mechanics. It is further submitted that the SIMI Pensions Fund is not of particular relevance to the instant case as (a) it is not a mandatory fund and (b) the members of same amount to a small number of personnel in the industry. Finally, it is submitted on behalf of the complainant that the respondent cannot avail of section 34(4) of the Employment Equality Acts, 1998-2008 because the respondent never communicated to the complainant that it operated a mandatory retirement age. Moreover, it is argued that the exemption provided at that section requires objective justification4 and the respondent has failed to do so, noting that objective justification requires that the measure involved must have a legitimate aim and in addition must be proportionate and necessary to achieve that aim.
3.4 In terms of his allegation of less favourable treatment on grounds of age as regards training, the complainant states it was an essential part of his job that he maintained his knowledge of technological and other developments in the industry by attending “Dealer” specific training courses on a regular basis – which occurred on average twice a year. He adds that he attended such a course in November, 2006 at the instruction of Mr. S – the respondent’s Service Manager. The complainant states that during this training course he was informed by the Instructor that he (the complainant) did not need to complete the examination at the end of the course because he was retiring. He adds that when he queried this comment the Instructor advised him that Ms. S had mentioned his (the complainant’s) retirement to him. The complainant states that when he raised this matter with Mr. S he denied he knew anything about the complainant’s retirement. The complainant states that at least one further training course took place between November, 2006 and July, 2008 and he was not sent on this course – although his younger colleagues were. He adds that the content of this training impacted on his capacity to perform his duties and that he obtained the information by liaising with these colleagues or accessing electronic manuals. It is submitted on behalf of the complainant that this treatment of him constitutes discrimination on grounds of age contrary to the Acts.
4. SUMMARY OF RESPONDENT’S CASE
4.1 The respondent rejects the complainant’s assertions in their entirety. It agrees that the complainant commenced employment with it as a motor mechanic in July, 1989. It confirms that the complainant did not receive a written contract of employment, but states that the terms of his employment were well understood, including the condition that he was required to retire on reaching the age of sixty-five years. The respondent states that this was its policy on the matter and that it departed from this policy on compassionate grounds in respect of the complainant by extending his employment until he was sixty-six years old. In the course of the Hearing the respondent stated that the retirement policy was not in written format and consequently, it was never circulated to staff. The respondent (Mr. G) further stated that it had not discussed the policy with the trade union representing the complainant, although the issue in dispute was discussed with the relevant trade union representative, who considered that the respondent had treated the complainant fairly. Mr. G adds that the respondent introduced a new process in 2009 and all employees are aware of its policy as regards retirement. Finally, the respondent contends that sixty-five is the generally accepted retirement age for mechanics employed in the industry adding that it was unable to find a single person of that age in the industry who remained in employment.
4.2 The respondent states that it (Mr. G) spoke with the complainant in May, 2007 about his retirement the following July- when he reached the age of sixty-five. It adds that the complainant indicated he did not want to finish work on that date as his State Pension entitlements did not fall due until he was sixty-six years old. The respondent (Mr. G) adds that in light of these circumstances and in appreciation of the complainant’s long service, he (Mr. G) agreed to permit the complainant work for a further year as an exceptional variation of the mandatory retirement age the respondent operated. Mr. G further states it was his understanding that the complainant was aware he would have to cease employment in July, 2008 and that he (the complainant) was satisfied with this position. In the course of the Hearing Mr. G stated that he never subsequently confirmed this understanding with the complainant in writing.
4.3 The respondent states that the matter did not arise again until May, 2008 when the complainant wrote to Mr. G advising that he did not wish to retire in July of that year. The respondent adds that Mr. G did not formally reply to this letter but merely restated that company’s position in the course of conversation – that the complainant would be removed from the payroll at end July, 2008. The respondent states that the matter had come up in informal conversation between it and the Official of the complainant’s trade union and that he (the official) was of the opinion the respondent had been fair to the complainant in the approach it adopted. In addition, the respondent points to the Pension Scheme organised by the Society of the Irish Motor Industry (SIMI), which indicates that the normal retirement age for members of that scheme is sixty-five years of age and submits that this is indicative of the retirement age in the industry.
4.4 The respondent states that certain difficulties emerged with the complainant’s work and performance for a couple of years before his retirement. It adds that due to the excessive amount of time the complainant spent on a particular task which, it contends, resulted in him taking over five times the average industry recommended time, the respondent could only charge the client with a certain amount of “labour costs” and therefore had to absorb that uncharged costs. It adds that on another occasion the complainant overlooked tightening the bolts on the gearbox of a vehicle and had this oversight not been discovered in time it could have led to a serious accident. The respondent states that it believes these difficulties were related to the complainant’s age and demonstrate that he no longer had the physical capability to perform his job. In the course of the Hearing Mr. G stated that these performance related issues were never formally raised with the complainant at that time. In conclusion on this point, the respondent adds that it must be extremely mindful of health and safety issues, from both an employee and client perspective and submits that the performance related difficulties which the complainant had supports it position that it was appropriate to operate a mandatory retirement age.
4.5 The respondent accepts that it terminated the complainant’s employment on the basis of his age. It is submitted on behalf of the respondent that the manner in which it terminated the complainant’s employment is immune from challenge on grounds of age discrimination pursuant to section 34(4) of the Employment Equality Acts, 1998-2008. It is further submitted that if the Tribunal finds section 34(4) is applicable to the instant case, it should proceed no further with the matter and cites the Determination of the Labour Court in McGovern v Eircom Ltd5 in support of this proposition and states that the Labour Court held in that case, having found that section 34(3) of the Acts (which is very similar to the provision advanced in the instant case) applied, that it had no jurisdiction to investigate the matter further. It is further submitted on behalf of the respondent that in circumstances where a mandatory retirement age operates section 34(4) of the Acts does not require that that retirement age is notified to the employee in writing. It submits that the authorities advanced by the complainant on this point are not relevant as they relate to claims under the unfair dismissals legislation. In addition, the respondent states that the complainant was on notice from the previous year that he would be required to retire in July, 2008 – although this was not in writing. In this regard the respondent seeks to rely on the judgement of Hedigan J in McCarthy v HSE6 as regards knowledge of the requirement to retire.
4.6 It is further submitted on behalf of the respondent (as stated previously) that section 34(4) of the Employment Equality Acts, 1998-2008 provides an absolute defence to the respondent operating a mandatory retirement age and in those circumstances it is not necessary for the respondent to provide objective justification for its actions in terms of Article 6 of the Framework Directive7. The respondent submits that to import such a requirement does violence to the statute and in any event, the Tribunal is not permitted to do so. In this regard it relies on the judgement of Charleton J in Minister for Justice, Equality and Law Reform and the Commissioner of An Garda Síochána v The Equality Tribunal8. In the alternative it is submitted on behalf of the respondent that if the Tribunal holds that its reliance on section 34(4) of the Acts requires objective justification then it has demonstrated objective justification in terms of the public interest as stated by the ECJ (as it then was) in Palcaios de la Villa v Cortefiel Servicios SA9. The respondent notes that McKechnie J made reference to the judgement of the ECJ at paragraph 92 of his judgement in Donnellan v Minister for Justice, Equality and Law Reform & Others10 wherein the learned judge noted that health and safety issues and staff planning may constitute legitimate aims for applying a retirement age.
4.7 As regards the equal treatment element of the complainant’s claim the respondent accepts that it was normal for the complainant and other appropriate personnel to attend specific training courses in order to update and maintain their technical knowledge and developments in the area. It further accepts that during late 2006 the possibility of him not attending these courses was discussed with him as he was retiring in July, 2007. The respondent further accepts that the complainant did not attend some of these courses and states that at the time it was of the view that there was no need to send him. It adds that the other younger mechanics would have gotten more from the courses, that Mr. S would select 2/3 employees to attend and in any event given the information delivered at these courses was available “on-line” and the complainant could access it if necessary. It therefore rejects the assertion that the complainant was treated less favourably on grounds of age contrary to the Acts.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me are whether or not the respondent (i) discriminated against the complainant on grounds of age, in terms of section 6(2) of the Employment Equality Acts 1998 – 2008 and contrary to section 8 of those Acts in relation to training and (ii) dismissed the complainant in circumstances amounting to discrimination on grounds of age, in terms of section 6(2) of the Employment Equality Acts 1998 – 2008 and contrary to section 8 of those Act when it terminated his employment in July, 2008 when he reached the age of sixty-six years. In reaching my decision I have taken into consideration all of the submissions, both written and oral, submitted to the Tribunal as well as evidence advanced at the Hearing.
5.2 Section 85A of the Employment Equality Acts 1998- 2008 sets out the burden of proof which applies in claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove, on balance of probabilities, the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required his case cannot succeed.
5.3 I shall deal with the complainant’s claim that he discriminated against by the respondent on grounds of age contrary to the Acts when from November, 2006 he was prevented from attending certain external training courses connected with the job he was performing. It is common case that the complainant had previously attended these training courses during his period of employment, as did his colleagues and that it was normal for staff to attend these courses in order to update and maintain their technical knowledge and keep abreast of developments in the area. The respondent accepts that during late 2006 the complainant was approached and the possibility of him not attending these courses was discussed with him as he was retiring in July, 2007. The respondent further accepts that the complainant did not attend some of these subsequent courses and states that at the time it was of the view that there was no need to send him. It adds that the other younger mechanics would have gotten more from the courses, that Mr. S would select 2/3 employees to attend and in any event given the information delivered at these courses was available “on-line” and the complainant could access it if necessary. In light of the foregoing it is clear that the complainant was treated differently to his younger colleagues as regards access to these training courses and that his access was restricted because he was approaching retirement age. I am therefore satisfied that the complainant has established a prima facie case of less favourable treatment on grounds of age contrary to the Acts. The respondent has failed to rebut the inference of discrimination raised and consequently, the complainant is entitled to succeed with this element of his complaint.
5.4 I shall now examine the complainant’s assertion that he was dismissed in circumstances amounting to discrimination contrary to the Acts. It is common case that the respondent unilaterally decided to terminate the complainant’s employment with it in July, 2008- on the complainant reaching the age of sixty-six years – after it had attempted to do the same thing one year previously on the complainant’s 65th birthday but had agreed to extend the complainant’s employment for a further year in order to enable him work up to the age where he would be eligible for State old age benefits. In Donnellan v The Minister for Justice, Equality and Law Reform & Others11 McKechnie J held that the termination of an employee’s employment solely on reaching a particular age (in that case sixty years old) constituted direct discrimination on grounds of age contrary to the Acts. It follows therefore, in the instant case, that the complainant has discharged the initial burden of proof required and the respondent must rebut the inference of discrimination raised.
5.5 The first argument advanced on behalf of the respondent is that the compulsory retirement age of sixty-five years which it operated, is governed by section 34(4) of the Employment Equality Acts, 1998-2008 and that provision grants an absolute defence to the respondent. It further submits that this section is not subject to a test of objective justification by reference to Article 6 of the Framework Directive12 and that to import such a requirement does violence to the statute and in any event, the Tribunal is not permitted to do so. In this regard it relies on the judgement of Charleton J in Minister for Justice, Equality and Law Reform and the Commissioner of An Garda Síochána v The Equality Tribunal13. I fully accept the respondent’s arguments that this Tribunal has no jurisdiction to disregard a provision in a statute or to correct a mistake in one. However, I am of the view that there is a significant difference in either of the two aforementioned scenarios and giving a provision a purposive interpretation so as to reflect the presumed intention of the Oireachtas to faithfully transpose a provision of European law. I am satisfied that I have an obligation to interpret these Acts in a manner that is harmonious ‘in the light of’ directives14. The interpretative obligation set out in by the ECJ (as it them was) in Von Colson15 was approved in this jurisdiction by the Supreme Court in Nathan v Bailey Gibson16. Moreover, in Donnellan v The Minister for Justice, Equality and Law Reform & Others.17 McKechnie J stated, in looking at the regulations governing the application of compulsory retirement ages of senior members of An Garda Síochána, that “national measures relating to retirement ages are not excluded from consideration under Directive 2000/78/EC. Any discrimination with regards to age must, as put by that Directive, serve a legitimate aim or purpose and the means taken to achieve that purpose be appropriate.”. I am satisfied that McKechnie J’s comments are authority for the proposition that I can construe section 34(4) of the Acts in light of Article 6(1) Directive 2000/78/EC18. Consequently, it falls to the respondent to satisfy me that the approach it adopted is “objectively and reasonably justified by a legitimate aim … and the means of achieving that aim are appropriate and necessary”.
5.6 It is accepted by the respondent that no written contract of employment existed but that the complainant should have known of the compulsory retirement age it operated. I cannot accept that proposition as the complainant was the first person to cease employment with the company due to retirement. Moreover, the respondent confirmed that (at the relevant time) its retirement policy was not set down in writing and therefore had never been circulated to staff. It is noteworthy that the Employment Appeals Tribunal and the Superior courts have consistently held that an employee must be aware of the retirement age operated by the employer and that the best way for an employer to ensure the employee possesses such knowledge is to set it out in writing. The respondent further submits that it operated a compulsory retirement age of sixty-five years as this was the custom and practice in the industry. However, neither party could identify a single car mechanic that retired from the sector at that age. The evidence was that most appear to leave the sector at a younger age and go into business for themselves. However, as stated by Maguire J in O’Reilly v The Irish Press19 when examining the circumstances where custom and practice might imply a term into a contract of employment “The absence of actual instances of the usage in practice [of a notice period] would no, however, preclude me from holding that the usage existed if I were satisfied that it was well known and universally recognised”. Ms. X, who is Training and HR Manager with SIMI, attended at the Hearing and gave evidence that whilst the Pension Scheme it facilitates contains a retirement age of sixty-five years but that the Scheme is not mandatory and only has a few hundred members. It light of the foregoing I cannot accept that it was the custom and practice that the generally accepted retirement age for car mechanics in the industry was sixty-five years. Finally, I note the respondent states that an Official from the complainant’s union was of the opinion that the respondent had been fair to the complainant in the approach it adopted. However, this is all it is – an informal opinion from a trade union Official and therefore it has no relevance to the instant case.
5.7 The respondent submits that (i) the health and safety of the complainant, (ii) the failing capacity of the complainant to perform the duties attached to the post and (iii) staff rotation or planning constitute legitimate aims in terms of Article 6 of the Framework Directive20 and that the means of achieving those aims – the setting of a mandatory retirement age of sixty-five years – is appropriate and necessary in terms of that Article. In the first instance I have to say that I cannot accept the respondent operated a compulsory retirement age of sixty-five years in circumstances where it was able to ignore it and extend the complainant’s employment for a further year, however laudable the reasons for its actions. It is clear however, that from July, 2007 the complainant was on notice his employment was to cease on his sixty-sixth birthday, whether he agreed with the proposition or not. I shall examine the first legitimate aim advanced by the respondent – the health and safety of the complainant. Whilst on the face of it this may appear to be a legitimate aim I do not accept it as such in the instant case. Firstly, the respondent had previously permitted the complainant to remain in the workshop alone for several hours after normal working hours had ended without any problem. It appears that this practice diminished from late 2006 onwards and it is difficult to see what health and safety issues arise in respect of the complainant at 66 years of age when he is working with colleagues in a workshop which exceed those that could have existed when he was alone in a workshop after working hours when he was only two years younger. Consequently, I am not satisfied that this constitutes a legitimate aim in terms of Article 6 of the Framework Directive.
5.8 The respondent also asserts that the failing capacity of the complainant to perform the tasks associated with his post due to his age and the potential consequences of his incapacity on the safety of customers’ amounts to a legitimate aim. It contends that the complainant was taking longer to perform certain tasks and was also making errors at work which had potentially serious consequences for customers and cites two particular incidents in support of this assertion. The first example refers to a situation where it is alleged the complainant took five times the industry norm to fit a tow bar – and consequently the respondent had to absorb the additional labour costs. The complainant states that this particular job was atypical, complex in nature and had never been attempted before by anyone in the respondent workshop, consequently it took a significant amount of time to complete. He adds that on completion of the job Mr. S stated that the respondent would never take on a similar task again. The second example refers to an incident where it is alleged the complainant failed to tighten bolts on a gear box and only this oversight was detected there could have been serious consequences for the customer. The complainant rejects the respondent’s assertion that he failed to tighten the bolts in question, stating that a number of other employees also worked on the gearbox in question. Having carefully considered the evidence adduced by the parties on these issues I prefer, on balance, the complainant’s version of events. In reaching this conclusion I note that (i) these incidents are alleged to have happened in the months immediately before the complainant’s retirement and that they were never raised with him at the time and (ii) that they occurred after the complaint had raised considerable resistance to the respondent forcing him to retire. I therefore find it difficult to accept that an employee of the complainant’s experience, who prior to that had an unblemished record – indeed the respondent had extended his employment for a further year in July, 2007 – would suffer such a dip in performance. In light of the forgoing I find that the circumstances set out by the respondent do not amount to a legitimate aim in this instance – although I note that such a reason could form the a component of the argument of objective justification in principle21.
5.9 Finally, the respondent asserts that staff rotation/ planning constitute the legitimate aims in terms of Article 6 of the Framework Directive. Such a reason has been accepted, in principle, as amounting to objective justification22. However, in the instant case I note the respondent’s evidence that the complainant was never replaced. Consequently, it cannot rely on this argument. In conclusion, in light of my comments in this and the preceding two paragraphs I find that the respondent has failed to show that its decision to apply the retirement age it did is objectively justified in terms of section 34(4) of the Employment Equality Acts when construed in light of Article 6(1) Directive 2000/78/EC23. I feel it necessary to state that some of the explanations advanced by respondent in terms of the operation of a compulsory retirement age have been previously accepted by the Tribunal as elements of a defence of objective justification24. However, in the instant case I find as a matter of fact that such justification was not made out by the respondent. Consequently, the complainant is entitled to succeed in this element of his complaint.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2011. I find that –
(i) the respondent discriminated against the complainant on grounds of age in terms of section 6(2) of the Employment Equality Acts 1998-2008 and contrary to section 8(7) of those Acts when it denied him access to work related training courses from November, 2006 until the cessation of his employment.
(ii) the respondent dismissed the complainant in circumstances amounting to discrimination on grounds of age in terms of section 6(2) of the Employment Equality Acts 1998-2008 and contrary to section 8 of those Acts when it terminated his employment in July, 2008 upon him reaching the age of sixty-six years.
6.2 Section 82(1) of the Employment Equality Acts, 1998-2011 sets out the redress which an Equality Officer can order when a complaint of discrimination is upheld. The section provides that I can order re-instatement or re-engagement, with or without compensation. At the outset of the Hearing the complainant confirmed that the redress he sought was compensation. In light of this I order, in accordance with my powers under that section, that the respondent pay the complainant the sum of €30,000 by way of compensation for the distress suffered by him as a consequence of the discrimination he was subjected to by the respondent. This award does not contain any element in respect of remuneration and is therefore not subject to PAYE/ PRSI Code.”
Loxley v. BAE Systems Land Systems (Munitions & Ordnance) Ltd
[2008] IRLR 853, [2008] Pens LR 353, [2008] ICR 1348
EAT THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
“Furthermore, whilst the European jurisprudence has emphasised that protection from age discrimination is one of the fundamental rights in EU jurisprudence (see Mangold v Helm [2006] IRLR 143) there has been no suggestion in any of the ECJ cases on age discrimination, nor indeed the opinions of the Advocates General, that there is any different principle to be applied when considering justification in the context of direct age discrimination. However, we await the decision of the ECJ for a definitive ruling.
On the assumption that the traditional test of justification applies, the following principles are, we understand, not in dispute:
(1) The burden of proof is on the respondent to establish justification once a prima facie case of discrimination is established. This is in accordance with general principles and is reflected in regulation 37.
(2) The classic test was set out in Bilka-Kaufhas GmbH v Weber Von Hartz (Case 170/84) [1984] IRLR 317 in the context of indirect sex discrimination. The ECJ said that the court or tribunal must be satisfied that the measures must “correspond to a real need … are appropriate with a view to achieving the objectives pursued and are necessary to that end” (para 36). This involves the application of the proportionality principle, which is the language used in regulation 3 itself. It has subsequently been emphasised that the reference to “necessary” means “reasonably necessary”: see Rainey v Greater Glasgow Health Board (HL) [1987] ICR 129 per Lord Keith of Kinkel at pp 142-143.
(3) The principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the disparate adverse impact, the more cogent must be the justification for it: Hardys & Hansons plc v Lax [2005] IRLR 726 per Pill LJ at paras 19-34, Thomas LJ at 54-55 and Gage LJ at 60.
(4) It is for the employment tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer’s measure and to make its own assessment of whether the former outweigh the latter. There is no ‘range of reasonable response’ test in this context: Hardys & Hansons plc v Lax per Pill LJ para.31.
(5) In analysing the issue of justification, the Tribunal must carry out a critical examination and reflect that analysis in its reasoning: Hardys and Hansons per Pill LJ at para.33.”
The Tribunal’s decision.
The Tribunal set out the material facts, setting out in greater detail what we have summarised above. It emphasised that the agreement reached in December 2006 had been agreed with the trade unions following very full consultation. The Tribunal also rejected a contention by the claimant that he had been subject to some sort of duress when signing the agreement to the terms on offer. In other words, the discrimination about which he complained resulted, as the Tribunal made plain, from the very offer that he himself had accepted. In view of this the Tribunal observed (para 12):
“… He decided to go and there is therefore no detriment because the Claimant received precisely what he agreed to by signing the agreement. It cannot be an act of duress when the Claimant himself said that originally he had wanted to work until 65.”
The Tribunal first considered whether there was a legitimate aim. They held in that respect that the fact that the unions had entered into the agreement went some way to support the contention that the agreement and the scheme adopted in pursuance of it was a legitimate aim. They then added this (para 14):
“Indeed, there appear to be little challenge by the Claimant of the Respondent’s assertion that there was a legitimate aim because the principle of tapering redundancy payments prevents older employees from enjoying a windfall from a redundancy in circumstances where they are shortly to retire and the evidence supports the Respondent’s contentions that the Respondent’s approach had a legitimate aim.”
The Tribunal then looked at the issue of proportionality. They summarised their conclusion on this as follows (para 15):
“As to proportionality the Respondents were at pains to work a number of examples in the negotiations which they had with the trade unions to see how each age group would be affected. The scheme which finally emerged struck a careful balance between employee and employer since some of the other models over-compensated employees with a resulting excessive financial burden to the Respondent. Indeed, the Respondent interestingly submits in paragraph 30 of the document entitled “Respondent’s opening note”, “It is suggested that a scheme proposed by the Claimant if implemented would have resulted in him receiving more for the termination of employment than he had lost. Accordingly the Claimant’s argument does not just fail to satisfy the Respondent’s legitimate aim; it defeats it.”
It is to be noted that the “loss” referred to was not the loss resulting from the termination of the employment itself prior to the age of sixty-five, but simply the very small pension loss resulting from the modification of the pension rules.
In the light of these findings they concluded that there was no age discrimination.
The grounds of appeal.
Mrs Moss submits that the fundamental approach of the Tribunal was entirely misconceived. They have analysed the whole case on the basis that the exclusion of the claimant from the pension scheme would have been justified but for the modest change in his pension entitlement. On that basis the Tribunal assessed the windfall in terms of the extent to which any additional redundancy payment would exceed that small loss.
In substance, the claimant’s real complaint is not the change in the pension provision, which was admittedly minimal, but rather the failure to have regard to the fact that the effect of the change in 1996 was that employees were entitled to remain at work until sixty-five (and any earlier dismissal would now have to be justified under the Regulations). The Tribunal erred in saying that his loss is simply the detriment he suffers as a result of the change in the pension rules. In fact it is the money he would have earned had he worked up until retirement age, together with the fact that his pension will now be smaller than it would have been had he worked until that age.
Mrs Moss submits that in the circumstances it is quite erroneous for the Tribunal to find that the claimant would have benefited from a windfall had he received the redundancy entitlement. The Tribunal made no attempt at all to identify what that windfall would have been, no doubt because they simply focused on the minimal pension reduction.
More specifically, the claimant contended that the Tribunal had erred both in its identification of the legitimate aim, and in the way in which it approached the issue of proportionality. As to the former, she submits that there is no business need to prevent an employee gaining a windfall, and further argued that it could not be legitimate to treat as an aim of the scheme an attempt to secure an equitable distribution of funds amongst the workforce.
32. Mr Laddie conceded that it was not strictly accurate to say that this claimant would have received a windfall if he were to be given a redundancy payment. However, he submitted that it was plainly a legitimate aim for the employers to distribute the necessarily limited financial pot available to meet redundancies so as to ensure an equitable distribution of remuneration amongst the work force. In doing that, the employers were fully entitled to have regard to the fact that employees over the age of sixty would be entitled to take an immediate pension payment. The modification of the agreement made in 2006 was designed to deal with the adverse effect on those employees resulting from the change in the pension rules. However, he submits that all parties, including the trade unions, always accepted that the scheme should exclude those who would in any event receive compensation following redundancy from the pension fund. The Tribunal did not in terms refer to this reason for the exclusion, but that was because everyone understood that this was the position. Their reference to “windfall” was intended to be a loose shorthand to include this reason for the exclusion also.
33. Mrs Moss also challenges the Tribunal’s approach to the issue of proportionality. She submits in particular that there is simply no evidence of the careful balancing assessment that is needed before a tribunal can properly conclude that the principle of proportionality is satisfied.
It is clear from reading paragraph 15 of the judgment that the Tribunal simply did not engage with the principal argument advanced by the claimant. They have provided some explanation why the new agreement was not extended to this claimant and others like him to deal with their pension losses. However, they have not grappled with the question whether it was proportionate to exclude the claimant from any redundancy payment altogether because of his entitlement to a pension. For example, nowhere in the decision is there any assessment of what his pension would be, or how that related to the redundancy payments.
35. Mr Laddie accepts that the reasoning on proportionality is somewhat sparse. He also accepts that in paragraph 15 the Tribunal only had in mind the minor pension loss. He contends that nonetheless there is enough to sustain this decision. Everyone, including the Tribunal, understood that the reason for the claimant’s exclusion was because he had access to pension payments and therefore did not need to be cushioned from the effects of dismissal in the way in which other workers, not able to take a pension, needed to be. He emphasised that the December 2006 agreement had been reached with the trade unions and that in the circumstances the Tribunal was entitled to find that the justification was established.
Conclusions.
36. We are persuaded that the Tribunal’s analysis here is defective. In fairness to the Tribunal, we suspect the arguments addressed to them were not those which were identified before us. They seem to have analysed the whole issue on the premise that the claimant’s case was that the age discrimination resulted solely from the change in the pension entitlement.
We reject the claimant’s submission that preventing a windfall cannot be a legitimate feature of the scheme. One of the purposes of a redundancy scheme of this nature is to cushion workers from the effects of losing their income. This is not required, or at least not to the same extent, where pensions are paid. Indeed, if the position still were that retirement automatically took place at the age of sixty then an employer would in our view manifestly be justified in having a rule which prevented the employee being better off as a consequence of receiving redundancy pay than he would have been if working until retirement age. That is what the tapering provisions originally achieved until the extension of retirement age in 1996. This is a legitimate means of securing the aims of the scheme. Similarly, it is legitimate to seek to ensure that the aims are achieved in an equitable and fair way. Whether these are better described as aims or as proper means of achieving the aims is perhaps a matter of semantics.
However, we do not accept that the basis on which Mr Laddie sought to justify the scheme, namely that it is fair to exclude employees in receipt of a pension, can fairly be described as giving effect to the “windfall” principle. Perhaps more importantly, it is not clear that this is how the Tribunal understood the case.
We recognise that there are many employers who adopt redundancy schemes of this kind. We do not say for one moment that it may not be justified to exclude those who are entitled to immediate benefits from their pension fund from the scope of a redundancy fund. Moreover, in such circumstances tapering provisions of a kind adopted in this case will, we suspect, be very readily justified. They would be necessary to ensure equity as between those close to retirement and those in retirement receiving pensions. However, it is not in our view inevitably and in all cases justified for those entitled to an immediate receipt of a pension to be excluded from the redundancy scheme. Ultimately, it must depend upon the nature of both schemes.”
MacCulloch v. Imperial Chemical Industries Ltd
[2009] UKEAT 0275_09_2511
EMPLOYMENT APPEAL TRIBUNAL SLADE J.
“UNFAIR DISMISSAL: Compensation
In accordance with Employment Rights Act 1996 Section 123(7) the excess of an enhanced redundancy payment over the amount of a basic award reduces the compensatory award arrived at in accordance with Section 123(1).There can surely be no doubt that the fact that an employee is entitled to immediate pension benefits will always be a highly relevant factor which an employer can properly consider when determining what redundancy rights, if any, the employee ought to receive. No doubt in some, perhaps many, cases it will justify excluding such an employee from the redundancy scheme altogether
To answer that question the Tribunal had to ask whether the treatment of the claimant – in this case his exclusion from the scheme – achieves a legitimate objective and is proportional to any disadvantage which he suffers. It may be that his pension entitlement, even if taken earlier than he would otherwise have wished, is far more valuable than any redundancy entitlement. Neither we nor, it seems, the Tribunal are in a position to assess that in this case. They appear to have had a lot of financial information about the various benefits, but they have not analysed that information in their judgment.
42. We should add that we fully recognise, as Mr Laddie has emphasised in his submissions, that the fact that an agreement is made with the trade unions is potentially a relevant consideration when determining whether treatment is proportionate. The decision of the ECJ in the case of Paliacos de la Villa v Cortefiel Services SA [2007] IRLR 989 strongly supports that proposition. The Court recognised that one of the considerations that could properly weigh in the assessment of whether compulsory retirement was justified was that the rules in question had been collectively agreed: see paragraph 53. (Another factor, which in principle lends support to the justification argument in this case, was that the retirement occurred at the point when the employees were entitled to take a pension: see paragraph 73.) Plainly the imprimatur of the trade union does not render an otherwise unlawful scheme lawful, but any tribunal will rightly attach some significance to the fact that the collective parties have agreed a scheme which they consider to be fair.
There is, however, always the risk that the parties will have been influenced, consciously or unconsciously, by traditional assumptions relating to age. Hence the reason why any justification relied upon by the employer, even when the treatment under consideration is supported by the union, must be subject to critical appraisal.”
Smyth -v- The Minister for Justice & Ors
[2013] IEHC 110
Dunne J.
“It goes without saying that a restriction on the recruitment of an individual for a job by reason of age would offend against Council Directive 2000/78/E.C. The respondent s rely on the derogation permitted by the Directive and provided for in s. 37(5) of the 1998 Act in respect of the Defence Forces. However, it is contended on behalf of the applicant that s. 37(5) only affords an exemption to the Defence Forces in respect of those in employment and does not afford an exemption in respect of the applicant as he suffered discrimination in relation to his recruitment to the Defence Forces.
In support of this argument reference was made to a number of authorities commencing with the decision of the High Court in the case of the Minister for Justice, Equality and Law Reform and the Commissioner of An Garda Síochána v. Director of the Equality Tribunal (Unreported, High Court, 17th February, 2009). That case is under appeal to the Supreme Court, but reliance was placed on a passage at para 7 of the judgment of Charleton J. in which he stated:-
“The Equality Act 2004 was specifically passed in order to give effect to Council Directive 2000/78/E.C.. It is beyond the scope of any decision that I am required to make in this judicial review as to whether that national legislation correctly implemented the Directive. In circumstances where an ambiguity arises, both this Court and any administrative body, including the respondent, is obliged to construe national legislation in the light of the obligation under European law in which it had its origin. That obligation, however, does not extend to re-writing the legislation; to implying into it a provision which is not there; or to doing violence to its express language.”
Counsel on behalf of the applicant described this as a correct statement of the position in relation to the 2004 Act which as seen above, amends the provisions of Act of 1998. I see not reason to disagree with the general statement contained in the passage referred to above.
The plaintiff also relied on the Article 26 reference to the Supreme Court in the Employment Equality Bill 1996 [1997] 2 IR 321. One of the issues considered in that case was the provision of s. 37(6) of the Employment Equality Bill 1996, which provided that:-
“In relation to discrimination on the age ground or the disability ground, nothing in this Part or Part II applies to employment-
(a) in the Defence Forces;
. . .
The provisions as to the age ground are challenged as being discriminatory, without rational justification and a violation of Article 40, s. 1 of the Constitution.”
Hamilton C.J. in the court’s judgment stated at p. 344:-
“It was further submitted that s. 37, sub-s. 6 which exempted employment in the Defence Forces, the Garda Síochána and the prison service from the application of the provisions of the Bill outlawing discrimination on the age ground itself constituted an objectively unjustifiable discrimination between employees in the public and private sectors (such as, for example, employees of security firms) which was itself in breach of Article 40, subsection (1).
It was finally submitted in relation to the age ground by counsel assigned by the Court that, considered from the employers’ perspective, these provisions constituted an unjust and disproportionate interference with the rights of citizens to earn their livelihood and with their property rights in preventing them from taking into account in recruiting employees their suitability for the work in question having regard to their age.
Hamilton C.J. continued at p. 349 of the judgment:-
“It might be, at first sight, more difficult to defend on constitutional grounds the wide-ranging exclusion from the Bill’s provisions of employment in the Defence Forces, the Garda Síochána or the prison service. Once, however, it is accepted that discrimination on the grounds of age falls into a different constitutional category from distinction on grounds such as sex or race, the decision of the Oireachtas not to apply the provisions of the Bill to a relatively narrowly defined class of employees in the public service whose duties are of a particular character becomes more understandable. It must be emphasised again at this point that a provision of this nature in this particular Bill does not have as its consequence a shielding from judicial scrutiny on constitutional grounds of legislation fixing age limits for any of the employments in question. The right of persons affected by such legislation to advance a challenge to compulsory retirement at a specified age without any testing to determine individual fitness for the post in question, such as was unsuccessfully advanced in the United States case of Massachusetts Board of Retirement, et al v. Murgia 427 U.S. 307, remains. Given the distinctive requirements associated with these branches of the public service and the particular importance of ensuring a high level of physical and mental fitness, it can hardly be said, in the Court’s view, that the decision of the Oireachtas to remove them from the ambit of this particular measure, whether correct or not, is unrelated to a permissible legislative objective or irrational or unfair.”
Having referred to that decision it was submitted that at no point in the discussion of the provisions of s. 37(5) of the Bill was the suggestion made that the derogation could be availed of in respect of recruitment into the said institutions.
I was also referred to a decisions of the European Court of Justice in the case of Kucukdeveci v. Swedex Gmb H and Company Kg, case C-55/07 in which the ECJ held that:-
“European Union law, more particularly the principle of non-discrimination on grounds of age as given expression by Council Directive 2000/78/EC of 27th November 2000 establishing a general framework for equal treatment in employment and occupation, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides that periods of employment completed by an employee before reaching the age of 25 are not taken into account in calculating the notice period for dismissal.”
And further that:
“It is for the national court, hearing proceedings between individuals, to ensure that the principle of non-discrimination on grounds of age, as given expression in Directive 2000/78, is complied with, disapplying if need be any contrary provision of national legislation, independently of whether it makes use of its entitlement, in the cases referred to in the second paragraph of Article 267 TFEU, to ask the Court of Justice of the European Union for a preliminary ruling on the interpretation of that principle.”
In that case a preliminary ruling was requested in the following terms:-
“By its first question, the referring court asks essentially whether national legislation such as that at issue in the main proceedings, under which periods of employment completed by the employee before reaching the age of 25 are not taken into account in calculating the notice period for dismissal, constitutes a difference of treatment on grounds of age prohibited by European Union law, in particular primary law or Directive 2000/78. It is unsure, in particular, whether such legislation is justified on the ground that only a basic notice period is to be observed in the case of dismissal of younger workers, first, in order to enable employers to manage their personnel flexibly, which would not be possible with longer notice periods, and, second, because it is reasonable to require greater personal and occupational mobility from younger workers than from older ones.”
The court noted at para. 21 as follows:-
“In that context, the Court has acknowledged the existence of a principle of non-discrimination on grounds of age which must be regarded as a general principle of European Union law (see, to that effect, Mangold, para. 75). Directive 2000/78 gives specific expression to that principle (see, by analogy, Case 43/75 Defrenne [1976] ECR 455, para. 54).”
Finally the point was made on behalf of the applicant that regulation 7 of the Defence Force Regulation provides for a date to be determined by the Minister. No such date has been determined. Should the date be taken as the enlistment date? Should it be the date of application or when the AF339 form was initiated? There is no dispute that the applicant was of age when the process commenced. He has now been disqualified because of the application of loose terminology. This is not sufficient to disqualify the applicant and to allow the respondents to rely on the derogation. To avail of the derogation, the scope of the derogation must be clearly defined. It should not be ambiguous. There is simply no clarity as to the date by which one becomes ineligible on reaching 25. Accordingly, it was submitted there is no clear rule entitling the respondents to rely on the derogation provided for in s. 37(5) of the Act of 1988 from the obligations set out in Directive 2000/78/E.C..
Mr. Kerr on behalf of the respondent took issue with the arguments on behalf of the applicant to the effect that s. 37(5) of the Act of 1998 in so far as it was a derogation from the directive applied only to those in employment in the defence forces as opposed to those being recruited to the defence forces. He relied in this context on Recitals 18 and 19 of Directive 2000/78/EC as set out above. He also noted the specific terms of Articles 31 of the Directive which provides that it applies in relation to, inter alia, “access to employment, to self employment or to occupation including selection criteria and recruitment conditions” and “access to all types and to all levels of vocational guidance, vocational training, advance vocational training, including practical work experience” as well as employment and working conditions. Thus he pointed out that the article in using the word “including” applies just as much to access to employment as to conditions of employment.
Mr. Kerr went on to examine the positions of s. 37(5) of the Act of 1998 as amended and accepted that the decision of Charleton J. in the judgment referred to above as to the role of the court in interpretation of the legislation was the appropriate approach. He argued that the derogation provided for in s. 37(5) is expressly committed under the Directive. He made the point that when one looks at the provisions of the Act as a whole and considers the provisions in relation to the description of discrimination as set out in s. 6 of the Act of 1998 and the provisions of s. 8 of the Act that it is clear when one considers those provisions that the Act is addressing the question of discrimination in relation to access to employment as well as in relation to conditions of employment. He urged on the court that one should not consider the words used in s. 37(5) in isolation from the other provisions of the Act. Mr. Kerr finally made the point that the interpretation urged on the court by Mr. Quinn, S.C. on behalf of the applicant would result in an absurdity in the sense that it would be absurd to allow a derogation from the provisions of the Directive in relation to persons in employment in the defence forces but not to provide for such a derogation in relation to access to employment
Decision
A central part of the argument on behalf of the applicant was that the respondents could not rely on the provisions of s. 37(5) of the Act of 1998 as amended on the basis that the provisions of s. 37(5) applied only to “employment in the defence forces” as opposed to a person in the process of being recruited as an employee in the defence forces.
I cannot accept this argument. Looking at the provisions of the Employment Equality Act, 1998 as amended by the Equality Act 2004 implementing Directive 2007/78/E.C., it is, in my view the clear intention of the Oireachtas that the provisions of the legislation refer not just to the employment of an individual but also the recruitment of an individual. That this is so is clear from s. 8 of the Act of 1998. This is also clear from the terms of the Directive and in particular Article 31A of the Directive. Had the legislator intended that the derogation provided for in the Directive was applicable only to those actually employed in the defence forces, one would have expected such a distinction to be expressly and unambiguously provided for in the legislation. I accept that at some points, the legislation refers specifically to access to employment and to conditions of employment but I do not accept that the reference to different aspects of employment has the effect contended for on behalf of the applicant. The phrase “in relation to employment in the defence forces” as used in s. 37(5) includes, in my view, access to employment and conditions of employment and there is nothing therein that would lead me to the conclusion that s.37(5) does not apply to the recruitment of persons to the defence forces.
It follows from the conclusion that use of an age restriction in respect of persons seeking to join the defence forces is not contrary to s. 8 of the Act of 1998 as amended.
A further argument made by Mr. Quinn, on behalf of the applicant, was that if the defence forces are to rely on a derogation from the Directive, this must be done unambiguously and clearly. Recital 19 of the Directive noted that the Member States could choose not to apply the provisions of the Directive concerning disability and age to all or part of their armed forces and went to conclude as follows:-
“The Member States which make that choice must define the scope of that derogation”.
It is clearly the case that the Minister has never determined the date by which a recruit for general service has to be less than twenty five years of age. It does appear to be the case that members of the defence forces such as Comdt. Norton have operated under the assumption that the relevant date to consider is the date of enlistment but this simply has not been determined by the Minister. Comdt. Norton acknowledged that the use of the date of enlistment is to the advantage of recruits at the lower end of the age requirement. There are many practical reasons for choosing the date of enlistment as the relevant dates. For example an applicant may submit an application but if the date of application was the relevant date, there would be no obvious upper age limit in the sense that a person could be entitled to enlist long after they had reached and passed the age of twenty five.
Recital 19 of the Directive requires Member States to define the scope of the derogation. In circumstances where the Minister has failed to determine the relevant date, it could not be said that the scope of the derogation has been defined. Until such time as the date is determined by the Minister, one cannot say what is the relevant date. To that extent, it seems to me that whilst the legislation has appropriately implemented in accordance with the Directive and the Defence Force Regulations have provided for an age requirement, the final step, on evidence before me, to be taken to give effect to the derogation is the determination by the Minister of the relevant date and that step has not been taken. In those circumstances it appears to me that there is a difficulty for the respondents in relation to the derogation and they cannot rely upon the derogation against the applicant. The process by which the State can rely on the derogation is incomplete.
I will therefore hear the parties further in relation to the appropriate form of orders to be made having regard to the findings I have reached. “
Cunningham v BMS Sales Ltd.
DEC-E2007-006
“1. CLAIM
1.1 The case concerns a claim by Mr. Paul Cunningham that BMS Sales Ltd., Dublin directly discriminated against him on the age ground in terms of section 6(2)(f) of the Employment Equality Acts 1998 and 2004 contrary to sections 8 of the Acts.
2. BACKGROUND
2.1 The complainant submits that the respondent provided him with a registration form requesting his age and date of birth. He completed the form and gave an incorrect age but did not give his date of birth. A few days later, the respondent sought to pursue the matter with him and he was told that without the information in relation to his age, the respondent would not progress his application. The responded submits that had the complainant not proved to be evasive and uncooperative in providing the respondent with information followed by deliberately providing incorrect information, it would have had no reservations in representing him. The respondent also submitted that the complainant indicated when it pursued the matter with him that he no longer had an interest in dealing with the respondent.
2.2 The complainant referred a complaint under the Employment Equality Acts 1998 and 2004 to the Director of Equality Investigations on 18 January 2005. On 16 March 2006, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A submission was received from the complainant on 8 May 2006 and from the respondent on 16 June 2006. A joint hearing of the claim was held on 11 January 2007 having previously been adjourned.
“5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainant alleges that the respondent directly discriminated against him on the age ground in relation to access to employment. I will therefore consider whether the respondent directly discriminated against the complainant on the age ground in terms of section 6(2)(f) of the Employment Equality Acts 1998 and 2004 and in contravention of section 8 of the Acts. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
Direct discrimination on the age ground
5.2 Section 6(1) of the Employment Equality Acts 1998 and 2004 provides that:
“Discrimination shall be taken to occur where, on any of the grounds mentioned 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.”
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(f) that they are of different ages, …… (in this Act referred to as “the age ground”),
Caselaw on establishing a prima facie case of direct discrimination
5.3 I will firstly consider the issue of whether the complainant has established a prima facie case of direct discrimination on the age ground. The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell (1) considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated that the claimant must:
“…. “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.”
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that s/he was not discriminated against on grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
5.4 Subsequently, the Labour Court stated in relation to the burden of proof in a discriminatory dismissal case on the age ground:
“It is now established in the jurisprudence of this court that in all cases of alleged discrimination a procedural rule for the shifting of the probative burden similar to that contained in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001) should be applied. The test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v. Southern Health Board [2001] ELR201. This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination. If these two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed.” (2)
More recently, the Labour Court stated in a case concerning discrimination on the age ground in relation to access to employment:
“It is accepted that if the complainants make out a prima facie case of discrimination, the burden of proving the absence of discrimination shifts to the respondent. The appropriate test for determining if that burden has shifted is that formulated by this Court in Teresa Mitchell v Southern Health Board [2001] ELR 201. This test places the initial burden on the complainant to establish, as a matter of probability, the primary facts upon which they rely. If those facts are proved on that standard, and if they are considered as having sufficient significance to raise a presumption of discrimination, the burden of proving that the principle of equal treatment has not been infringed rests on the respondent.” (3)
Direct discrimination
5.5 The respondent in this case stated in its written submission to the Tribunal that “On interviewing the candidate I was more than happy to represent him given his background, however, it was obvious after the interview; that by looking at the Curriculum Vitae provided by Mr. Paul Cunningham; and in particular the number of years he had been in employment, that the details pertaining to his age were misleading (when cross referenced to the information, that he had filled out on his application form)”
The statement continued “Had Mr. Cunningham not proved to be initially evasive and uncooperative in providing BMS with information, followed by deliberately providing incorrect information I would have had no reservations in representing him given his strong sales background.”
The latter paragraph cites two reasons for the respondent not representing the complainant, the first being that the complainant was initially evasive and uncooperative in providing the respondent with information and the second being that the complainant deliberately provided incorrect information. Based on the written statement of the respondent, it is clear that the respondent considered the complainant evasive and uncooperative in relation to providing the information on his age and date of birth.
5.6 Whilst the respondent was legally represented at the hearing, Mr. H did not attend on behalf of the respondent to give evidence. I have therefore made my decision without the benefit of hearing his oral evidence. A copy of the registration form completed by the complainant was provided by the respondent’s solicitor at the hearing and it is the case that the form sought the age, date of birth, marital status, nationality and number of children of applicants. The complainant had a difficulty with providing the information sought and provided an incorrect age. When Mr. H phoned the complainant on Monday 22 November 2004 to pursue the matter of the complainant’s age, a disagreement ensued between the parties. The respondent in its written evidence to the Tribunal stated that the complainant “did not meet the client’s criteria for the role. The applicant was informed of this by telephone and was approached politely concerning this and also to clarify certain areas which remained unclear on a standard form filled out by Mr. Cunningham prior to the interview.” The complainant gave oral evidence at the hearing that on Monday 22 November 2004, Mr. H phoned him and kept insisting that his age was relevant to his application and he insisted that it was not. He also gave oral evidence that he did not state that he did not have an interest in dealing with the respondent. This is contradictory to the respondent’s written statement on the matter and as Mr. H was not present to give evidence on the issue, the evidence of the complainant is to be preferred.
5.7 The Labour Court has stated in relation to age discrimination “Evidence of discrimination on the age ground will generally be found in the surrounding circumstances and facts of the particular case. Evidence of it can be found where job applications from candidates of a particular age are treated less seriously than those from candidates of a different age. It can also be manifest from a conclusion that candidates in a particular age group are unsuitable or might not fit in, where an adequate appraisal or a fair assessment of their attributes has not been undertaken. Discrimination can also be inferred from questions asked at interview which suggest that age is a relevant consideration.” (4) The Labour Court went on to find in that case that “…, the question put to Mr. Flood at interview concerning his age and the data concerning the age profile of those recruited by the respondent since 1992, establishes an evidential nexus between the unfair treatment of he complainants and their age. These are facts of sufficient significance to establish a prima facie case of discrimination and so shift the probative burden to the respondent.”
5.8 The respondent sought the complainant’s date of birth and age on the registration form. He refused to provide his date of birth and gave an incorrect age and the respondent pursued the matter with him a few days later. I note the respondent’s statement that it would have had no reservations in representing the complainant given his strong sales background had he not been evasive and uncooperative in providing the information in relation to his age followed by deliberately providing incorrect information. It therefore appears to be the case that as the complainant was reluctant to provide the information and then provided an incorrect age, his application to register with the respondent was not progressed. In this case, on the basis that the respondent sought the complainant’s age and date of birth on the registration form and subsequently pursued the matter with him, I find that the complainant has established a prima facie case of discrimination on the age ground in relation to the respondent’s refusal to represent him in respect of sales opportunities with clients.
5.9 The respondent made available a copy of its Equal Opportunities Policy and I am not satisfied as to the adequacy of the policy which refers only to UK legislation and does not appear to have been drawn up for this jurisdiction. I shall therefore be referring to this matter in my order for redress.
6. DECISION
6.1 On the basis of the foregoing, I find that the respondent discriminated against the complainant on the age ground in terms of section 6(2)(f) of the Employment Equality Acts 1998 and 2004 contrary to section 8 of the Acts in relation to the respondent’s refusal to represent him in respect of sales opportunities with clients.
6.2 In accordance with section 82 of the Acts, I hereby order that the respondent:
(i) pay to the complainant the sum of €5,000.00 compensation in respect of the act of discrimination (This award relates to compensation for distress and breach of rights under the 1998 Act and does not contain any element of lost income);
(ii) draft an Equal Opportunities Policy relevant to this jurisdiction.”
Quigley -v- Health Service Executive
Calor Teoranta -v- Mc Carthy
[2009] IEHC 139
JUDGMENT of Mr. Justice Clarke delivered the 19th of March 2009
1. Introduction
1.1 These proceedings involve an appeal taken by the applicant (“Calor”) under s. 90(1) of the Employment Equality Act 1998, (“the Act”) against a determination of the Labour Court (Determination No. EDA089) made on the 11th April, 2008. In that determination the Labour Court found that Calor had discriminated against the respondent (“Mr. McCarthy”) on the grounds of age in contravention of s. 8 of the Employment Equality Acts 1998 and 2004 (“the Acts”). The Labour Court, in consequence, awarded Mr. McCarthy the sum of €46,000.
1.2 It is necessary to turn first to the procedural history of the application up to the determination of the Labour Court.
2. The Process Before and at the Labour Court
2.1 On the 23rd December, 2004, Mr. McCarthy made a complaint of discrimination against Calor to the Equality Tribunal under the provisions of the Act. The basis of Mr. McCarthy’s complaint was that the termination of his employment with Calor on reaching the age of sixty constituted discrimination on the basis of age. Mr. McCarthy’s complaint was heard by an Equality Officer on the 18th June, 2007. By decision dated the 12th September, 2007, the Equality Officer concerned found that Mr. McCarthy had not been discriminated against.
2.2. On the 16th October, 2007, Mr. McCarthy appealed the decision of the Equality Officer to the Labour Court in accordance with s. 83 of the Act. The Labour Court heard Mr. McCarthy’s appeal on the 14th March, 2008. It will be necessary to return to one aspect of that hearing in more detail in due course as it gives rise to one of the grounds of appeal with which I am concerned. However, Calor says that it was taken by surprise by one aspect of the evidence given at the hearing. It would appear that some days later a representative of Calor wrote to the Labour Court asking that Calor be permitted to lead additional evidence to counteract the evidence which, it was said, had taken Calor by surprise. Correspondence ensued between the Labour Court and both parties. In substance the Labour Court declined to hear that additional evidence and proceeded to make the determination of the 11th April, 2008, to which I have already referred.
2.3 It is next appropriate to turn to the general legal principles applicable to an appeal such as that with which I am concerned.
3. The Legal Basis of the Appeal
3.1 The appeal provided for from a decision such as that of the Labour Court in this case is confined to an appeal on a point of law. The scope of such an appeal has been considered in a number of cases stemming from Henry Denny and Sons Ireland Limited v. Minister for Social Welfare [1988] 1 I.R. 34. In more recent times the Supreme Court again had to consider the scope of such an appeal in National University of Ireland Cork v. Ahern and Others [2005] 2 ILRM 437, where McCracken J. (speaking for the Supreme Court) indicated that the fact that an appeal is on a point of law does not prevent the court from examining “the basis upon which the Labour Court found certain facts”. McCracken J. went on to note that:-
“The relevance, or indeed the admissibility, of the matters relied on by the Labour Court in determining the facts is a question of law. In particular, the question of whether certain matters ought or ought not to have been considered by the Labour Court and ought or ought not to have been taken into account by it in determining the facts, is clearly a question of law, and can be considered on an appeal under section 8(3).”
3.2 Ahern was a case involving a complaint under the Anti Discrimination (Pay) Act 1974. The reference to s. 8(3) was a reference to the relevant section of that Act. The case is illustrative of the sort of matters which are properly scrutinised by a court hearing an appeal on a point of law. One of the issues in Ahern was as to whether the workers concerned were engaged in “like work” to comparators put forward as the basis for their contention as to discriminatory pay and conditions. Dealing with that aspect of the case McCracken J. noted as follows:-
“I accept that the consideration of whether there was ‘like work’ or not is almost entirely a question of fact. The Labour Court did set out in some detail its considerations of the various aspects of the work performed by the security services officers and the switchboard operators and reached a conclusion of fact. Insofar as this conclusion determines that there was ‘like work’ there were grounds upon which the Labour Court was entitled to make that finding, and indeed as the general duties between the main body of switchboard operators and the comparators did not differ greatly, the Labour Court was also entitled to find that the comparators were engaged in ‘like work’ with the Respondents.”
3.3 Thus, on the “like work” aspect of the case, the Supreme Court determined that the question was one of fact and that the court should not interfere with that finding of fact by the Labour Court provided that there was a basis in the evidence for the relevant determination.
3.4 However, on the question of discrimination, the Supreme Court, having noted that there were different terms as to pay between the workers concerned and the comparators put forward, but that there were established differences in pay between other categories of workers which appeared to be based on objective factors, found that the Labour Court “ought then to have considered the question whether the difference in remuneration between the respondents and the comparators might have the same basis. The Labour Court failed to give any consideration whatever to the fact that the comparators worked shorter hours and lesser duties than their full time colleagues”.
3.5 This latter passage demonstrates that the Supreme Court was happy to scrutinise the manner in which the Labour Court had come to its conclusion in that case concerning discrimination. The failure to carry out an appropriate analysis was identified and resulted in a successful appeal with the matter being remitted back to the Labour Court to carry out the analysis which the Supreme Court determined should originally have been made. The difference between the two issues is, of course, that the “like work” question was a pure question of fact while the discrimination question involved a number of issues which required the Labour Court to address the reasons for any established difference in terms and conditions. The discrimination question was open to scrutiny on the basis of whether all relevant factors had been addressed.
3.6 It is clear, therefore, that this Court can scrutinise the extent to which the Labour Court considered all necessary matters and excluded from its consideration any matters that were not appropriate. However, a legitimate and sustainable judgment of the facts based on a proper consideration of all relevant materials should not be interfered with by this Court. Likewise, particular deference should be paid to the judgment of the Labour Court on matters which are within its own special expertise. See Ashford Castle v. S.I.P.T.U. [2006] IEHC 201.
3.7 Against that general background it is necessary to turn to the central grounds of appeal raised on behalf of Calor.
4. The Grounds of Appeal
4.1 In order to understand the grounds of appeal it is necessary to say something about the issues which arose before the Labour Court. There was no doubt but that Mr. McCarthy was, in fact, required by Calor to retire at sixty. There was a dispute between Mr. McCarthy and Calor as to whether sixty was, in fact, his agreed retirement age. It will be necessary to consider the basis of the findings of the Labour Court in that regard in due course. The Labour Court concluded that, when Mr. McCarthy opted to sever his employment and return as a casual employee, he did so on the understanding that he could work until he attained the age of sixty five. The Labour Court went on to hold that the relevant understanding governed Mr. McCarthy’s terms of employment up to and until he was required by Calor to retire at 60.
4.2 So far as that finding is concerned Calor makes three points:-
(a) Firstly, Calor urges that it is not the function of the Labour Court, in hearing a discrimination claim, to determine the contractual retirement age of a relevant employee;
(b) Secondly, Calor says that the relevant finding is unsustainable on the evidence; and
(c) Thirdly, Calor asserts that the failure of the Labour Court to permit it to call additional evidence in relation to that aspect of the case amounted, in all the circumstances, to an unfair procedure.
4.3 A fourth ground of appeal concerns the proper application of the provisions of s. 34 of the Act which provides for exceptions relating to a variety of grounds. The relevant subsection is subs. (4) which 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.”
4.4 Fifthly, Calor suggests that the manner in which the Labour Court conducted its assessment of compensation fails to display a sufficient analysis to justify the determination.
4.5 In the light of identifying those issues it is next appropriate to turn to the determination of the Labour Court.
5. The Determination of the Labour Court
5.1 The view which the Labour Court took was dependent on the finding of fact to which I have referred concerning Mr. McCarthy’s retirement age. For reasons which it will be necessary to analyse in some greater detail, the Labour Court came to the view that Mr. McCarthy’s retirement age was, in fact, sixty five. On that basis the termination of Mr. McCarthy’s employment at sixty was held to be on the grounds of age, in circumstances where Mr. McCarthy was treated differently than a person in a comparable position who had not attained the age of sixty would have been treated. The Labour Court thus held that Mr. McCarthy had been the subject of discrimination within the meaning of s. 6(1) of the Act, and was entitled to succeed.
5.2 I did not understand counsel for Calor to disagree that, at the level of principle, it would amount to discrimination on the grounds of age to terminate someone’s employment because the person concerned had reached an age which was short of that person’s agreed retirement age.
5.3 It is also important to note that the Labour Court gave detailed consideration to the decision of the European Court of Justice (“ECJ”) in Felix Palacios de La Villa v. Cortefiel Servicios SA [2007] E.C.J. Celex Lexis 6773 (Case C-411/05). In its judgment in Palacios the ECJ determined that a national retirement age was only consistent with EU law where the retirement age concerned was objectively and reasonably justified in the context of national law by a legitimate aim relating to employment policy or the labour market and that the means put in place to achieve that aim of public interest were not inappropriate and unnecessary for purpose.
5.4 On that basis the Labour Court considered that there were serious questions concerning the proper interpretation of s. 34(4) of the Act having regard to the jurisprudence of the ECJ. It is clear that the Labour Court would have given very serious consideration to making a reference to the ECJ if it had come to the conclusion, as a matter of fact, that Mr. McCarthy’s retirement age was sixty rather than sixty five. In that eventuality there would have been no doubt but that Mr. McCarthy had been required to retire at his contractual retirement age. The question which then would have arisen is as to whether s. 34(4), properly interpreted in the light of the Directive which it seeks to implement in Irish law, provides, in all cases, an immunity in respect of a discrimination claim where someone retires at a contractual retirement age. However, because the Labour Court came to the view that, as a matter of fact, Mr. McCarthy’s retirement age was sixty five, the Labour Court did not consider it necessary to deal with s. 34(4) on the basis that Mr. McCarthy had not, in its view, therefore, been required to retire at his contractual retirement age.
5.5 It is next necessary to turn separately to each of the grounds of appeal put forward.
6. The Decision on Retirement Age
6.1 As set out earlier, two separate grounds are relied on under this heading. Firstly it is said that it was outside the proper role of the Labour Court to determine Mr. McCarthy’s retirement age. Secondly it is said that the finding of fact as to retirement age, if it was open to the Labour Court to make such a finding, was not sustainable on the evidence.
6.2 I propose to deal quite shortly with the first point. It is, of course, true to say that it is no function of the Labour Court to make a legally binding decision as to a party’s retirement age per se. However, that is not what the Labour Court, in my view, did in this case. Rather the Labour Court had to consider, as an element in the discrimination claim, the question of what Mr. McCarthy’s true retirement age was. If his true retirement age was sixty then Calor would, prima facie, have an entitlement to rely on s. 34(4) of the Act, subject to the difficult questions of the interpretation of that section in the light of community law to which I have briefly referred. On the other hand if Mr. McCarthy’s true retirement age was sixty five, then causing him to retire at sixty (being on the grounds of age) was undoubtedly discriminatory. In those circumstances it seems to me that the Labour Court was required to make a finding of fact as to Mr. McCarthy’s retirement age, not because that question was, in itself, a matter which the Labour Court had to decide, but rather because a decision on that question was a necessary ingredient in a consideration of the discrimination claim with which the Labour Court was concerned. Bodies charged with reaching legally binding determinations in a whole range of areas have to make findings as to fact which are material to the exercise of their statutory role. Where a determination (such as one in respect of retirement age) is material to the question of whether there has been discrimination then there can, in my view, be no legitimate objection to the Labour Court making any appropriate and sustainable finding of fact on such an issue. On that basis it does not seem to me that that ground had any merit.
6.3 The second question under this heading is as to whether the relevant finding was sustainable on the evidence. I leave aside for the moment the question of whether Calor should have been allowed call further evidence. The history of the retirement age applicable to Mr. McCarthy was somewhat complicated. When Mr. McCarthy first commenced employment with Calor in 1964, it would appear that the relevant retirement age was sixty five. In or about November, 1987 an agreement was reached which allowed employees of Calor to elect between sixty five and sixty as their retirement age. It was common case that, at that time, Mr. McCarthy elected for sixty and signed a form consenting to this change in his conditions of his employment.
6.4 In 1994 Calor introduced a scheme which allowed employees to opt to terminate their employment and return as casual employees on reduced pay and less favourable conditions. Those who opted for this arrangement received an enhanced redundancy lump sum and reduced pension. Mr. McCarty opted for this arrangement. It was Mr. McCarthy’s case that in the course of proposing that package to him, a Mr. Colin Lindsay, a director of Calor, told him that if he opted to accept the proposal he could remain in employment until the age of sixty five. It was said in evidence by Mr. McCarthy that Mr. Lindsay’s statement was made in the presence of a Mr. Michael Kinnefeck who was a manager with Calor. Corroborative evidence in relation to this issue was given by a Mr. Christy Harty, a former colleague of Mr. McCarthy. There was, therefore, ample evidence before the Labour Court, which it was entitled to accept, concerning the arrangements entered into at that time.
6.5 That was not, however, the end of the story. Further negotiations took place in 2002, arising out of an industrial dispute, which resulted in the terms of settlement of that dispute being reduced to writing in a document dated May 2002, which was intended to set out the then terms and conditions of Calor’s employees and which provided that:-
“The normal retirement age will continue to be sixty but the participants in the Defined Contribution Scheme may opt with the company’s agreement to stay on until sixty five.”
There is no doubt but that Mr. McCarthy signed the relevant document. However, the Labour Court had the benefit of the evidence of Mr. Tom O’Carroll, operations director of Calor, who indicated that, at the time that the document concerned was put in place, he was unaware of any separate agreement having been entered into by Mr. McCarthy providing for a retirement age of sixty five. Mr. O’Carroll also gave evidence that it was not intended that the May, 2002 document would alter the terms and conditions of any employees. In those circumstances the Labour Court came to the view that the signing of the 2002 document by Mr. McCarthy did not alter his retirement age.
6.6 In summary, therefore, the Labour Court held that Mr. McCarthy had agreed a retirement age of sixty five in 1994, and that that agreement had not been varied in 2002.
6.7 I am of the view that there was more than sufficient evidence to enable the Labour Court to come to that view. It did not, of course, have to accept Mr. McCarthy’s evidence as to what transpired in 1994. However, it did so. Subject only, therefore, to the next issue which arises as to whether Calor should have been permitted to call further evidence, it seems to me that no legitimate attack can be made on the finding of the Labour Court as to what transpired in 1994.
6.8 In the light of Mr. O’Carroll’s evidence it seems to me that the Labour Court was also entitled to determine that the 2002 documentation was not intended to alter any terms and conditions and that it did not, in fact, do so. Again the Labour Court was not constrained to take that view. It could, for example, have seen the signing by Mr. McCarthy of the 2002 documentation as being further evidence that Mr. McCarthy did not, in fact, have an assurance that sixty five would be his retirement age. However, the Labour Court did not form such a view on the facts and it was, in my view, entitled to come to the conclusions which it did.
6.9 I am, therefore, satisfied that, subject to the procedural point to which I will next turn, the finding of fact in respect of Mr. McCarthy’s retirement age was both an appropriate matter for the Labour Court to consider and was a finding which was open to the Labour Court to make on the evidence before it. I must now turn to the procedural issue which I have identified.
7. The Procedural Issue
7.1 As indicated earlier Mr. McCarthy gave evidence to the Labour Court, which the Labour Court accepted, that the relevant assurances were given to him by a Mr. Colin Lindsay, a director of Calor. It is that fact which Calor says took them by surprise. In that context it is necessary to trace the case as made by Mr. McCarthy. In the submissions in writing made on his behalf to the Labour Court, Mr. McCarthy’s representatives stated the following:-
“At the time he elected for the voluntary redundancy scheme the complainant was advised and given to understand that retirement age would remain at sixty five and that he could continue working to age sixty five. Mr. McCarthy so relied on this promise and inducement.”
7.2 That assertion had been made, in one form or another, in the earlier stages of the process. It was, therefore, clear that Mr. McCarthy was going to assert that he had been given such assurances. It is true that the document concerned (or its predecessors) does not specify the identity of the person whom it would be alleged gave the assurances concerned. Nor, it would appear, was the identity of the person concerned mentioned before the Equality Officer, at least so far as the papers before this Court are concerned. However, there is no doubt but that Calor must have been aware, prior to the hearing at the Labour Court, that it was likely that Mr. McCarthy would assert and seek to establish in evidence that he was given the relevant assurances. Calor was represented by IBEC at the hearing concerned. It is important to note that, in the written submissions filed by IBEC on behalf of Calor at the Labour Court, no mention is made of the assertion to which I have referred as to Mr. McCarthy having been given assurances. Nor, it would appear, did Calor seek, in advance of the hearing, any further details of the nature of the assurances concerned or the identity of the persons by whom such assurances were alleged to have been given. Furthermore, it does not appear that the IBEC representative appearing on behalf of Calor sought an adjournment on the day of the hearing to facilitate calling the relevant additional evidence.
7.3 Rather a letter was written to the Labour Court in the days immediately after the hearing (and before the Labour Court had issued its determination) seeking a facility to call the witness concerned. That letter (of the 18th March) was, quite properly, forwarded by the Labour Court to the representatives of Mr. McCarthy who opposed any re-opening of the case (by a replying letter of the 19th March).
7.4 A Body, such as the Labour Court, must be afforded a significant degree of procedural autonomy as to the manner in which it conducts its proceedings. That is not, of course, to say that in structuring its procedures the Labour Court is not obliged to ensure that those procedures conform with the principles of constitutional justice. There may be cases where the principles of constitutional justice would require that there be an adjournment of proceedings or a facility given to a party taken by surprise to have an opportunity to present further evidence.
7.5 However, I have come to the view that this is not such a case. Firstly, it seems to me, on a reading of the documents which were before the Labour Court, that Calor was on notice, at least in general terms, that Mr. McCarthy’s case involved a contention concerning the giving of assurances in relation to sixty five being the appropriate retirement age for Mr. McCarthy and that such assurances had, in fact, been given in or around 1994. On that basis it ought to have been clear to Calor that that issue was likely to arise.
7.6 While it is true to state that Calor do not appear to have had any information prior to the hearing as to the identity of the person who might be said to have given such assurances, it seems to me that it would have been open to Calor to seek such information in advance of the hearing. I am fully appreciative of the fact that the Labour Court attempts to conduct its proceedings in as informal a way as possible. That does not, however, mean that a party cannot be entitled to request, in advance, any necessary details of its opponent’s case which would be required to give it a fair opportunity to prepare for the hearing. If Calor conceived that it might be in some difficulty in relation to proper preparation for the hearing by virtue of not knowing the identity of the person or persons who might be said to have given the relevant alleged assurances, then Calor could and should have sought to have those matters clarified in advance.
7.7 Likewise, the issue having arisen at the hearing, Calor should have immediately drawn the Labour Court’s attention to the difficulty which had arisen and sought an adjournment of the hearing or some other appropriate accommodation. I can readily envisage that, in circumstances where a party sought additional details in advance of a hearing but was not given them, where the additional details were presented, therefore, for the first time at the hearing, and where the party, in those circumstances, sought an adjournment, the Labour Court might have little option, in order that the proceedings comply with the standard of fairness required by reference to the principles of constitutional justice, but to adjourn the case or otherwise afford the party concerned an opportunity to lead additional evidence. However, in circumstances where the case was allowed to go to hearing without such additional details being sought and where no application was made on the day for an adjournment, I am satisfied that the circumstances of this case placed the Labour Court in a situation where it had a discretion to allow or not allow a re-opening of the evidence by acceding to or refusing the application made on behalf of Calor.
7.8 In a letter of the 1st April, 2008, from the Chairman of the Labour Court to Calor, it was indicated that the court felt that it would be inappropriate to reconvene the hearing in the light of the points made by the representatives of Mr. McCarthy in their written reply of the 19th March to the letter of the 18th March requesting a re-opening. The points made in that responding letter broadly reflect, although expressed in more strident terms, the issues which I have sought to analyse in the immediately preceding part of this judgment.
7.9 Those issues, in my view, brought the case into an area where it was within the discretion of the Labour Court as to whether to allow or refuse the application to reconvene the hearing. I do not believe that the failure of the Labour Court to reconvene the hearing can, therefore, be described as an error of law such as would justify allowing this appeal.
7.10 It is next necessary to turn to the issues raised under section 34.
8. Section 34
8.1 As pointed out earlier it is clear that Calor placed significant reliance on section 34 of the Act. It is also clear that the Labour Court took the view that, in the light of its finding that Mr. McCarthy’s contractual retirement age was sixty five, s. 34 had ceased to be relevant in that, on the basis of its finding as to Mr. McCarthy’s retirement age, Mr. McCarthy had not been, in fact, compulsorily retired at his retirement age but rather five years earlier. It seems to me that the Labour Court was entirely correct in that regard. Had it been satisfied that Mr. McCarthy’s contractual retirement age was sixty then, undoubtedly, the questions which arose as to the proper interpretation of s. 34, if necessary in the light of the jurisprudence of the ECJ, would have become material to the Labour Court’s determination.
8.2 However, the facts as found by the Labour Court did not require those legal issues to be addressed and the Labour Court was, in my view, correct in not addressing same. This ground of appeal must also fail.
8.3 I turn finally to the question of the assessment of compensation.
9. Compensation
9.1 In awarding compensation under the Acts, the Labour Court is entitled to award a sum for discrimination generally and also to award a sum based on any actual loss which may be found to be attributable to the discrimination concerned. However, at an overall level, the jurisdiction of the Labour Court is confined to two years gross salary. In the circumstances the maximum award which the Labour Court could have made on the facts of this case could have slightly exceeded €46,000.
9.2 In the event the Labour Court noted that compensation is required to be effective, proportionate and dissuasive placing reliance on Von Colson and Kamann v. Land Nordhein-Westfalen [1984] ECR 1891. In that case the ECJ noted that:-
“That means that the compensation awarded must, at minimum, reflect the economic loss attributable to the discrimination found to have occurred. It must also provide a dissuasive element against future infractions of the right to equal treatment.”
In that regard it is noted that the complainant was deprived of five years potential employment. It is further noted that, at the time his appointment terminated, his annual salary amounted to €23,313.
9.3 In determining the appropriate compensation in the sum of €46,000, the Labour Court noted that that amount was made up as to €38,000 in respect of past and future pecuniary loss and €8,000 in respect of the effects of the discrimination found to have been suffered.
9.4 Calor makes complaint that there is no analysis as to how the compensation sum was arrived at. Strictly speaking that suggestion is true. However, it must also be noted that Mr. McCarthy retired on the 1st January, 2005, and the Labour Court was dealing with this matter some three years later. It was clear that Mr. McCarthy had not worked during the relevant period. It seems obvious from the determination of the Labour Court (though it would, perhaps, have been preferable if this was set out in terms) that the Labour Court, having determined that €8,000 was an appropriate sum to award for the non pecuniary effects of discrimination, awarded the maximum sum that could, thereafter, be awarded in respect of pecuniary loss. It is difficult to see how there could be any point of law involved in the assessment of non-pecuniary loss in the sum of €8,000 such as would entitle this court to interfere with same.
9.5 On the basis of an award of €8,000 in respect of the non-pecuniary effects of discrimination, it was clear that the maximum award which was open to the Labour Court in respect of pecuniary loss was of the order of €38,000, having regard to the jurisdictional limit placed on such awards at two years gross salary and in the light of the fact that Mr. McCarthy’s relevant salary would appear to have been just over €23,000. Thus, the maximum jurisdiction for the overall award was just over €46,000. The deduction of the €8,000 allowed in respect of non-pecuniary loss left a maximum possible award of the order of €38,000 for pecuniary loss.
9.6 While the award does not, in terms, set out the basis on which the calculation of pecuniary loss was conducted, it seems to me that there is only one inference to be drawn from the fact that the Labour Court awarded a rounded down version of the maximum amount which it was entitled to determine in respect of pecuniary loss. That inference is to the effect that the Labour Court was satisfied that any pecuniary loss would, in fact, have exceeded the maximum which could have been awarded. In those circumstances carrying out a detailed calculation of the amount of the pecuniary loss would, for obvious reasons, be redundant, as the award would be capped at the jurisdictional limit in any event.
9.7 There was, of course, ample basis for concluding that the pecuniary loss suffered by Mr. McCarthy would have exceeded that jurisdictional limit (taking into account the award of €8,000 for non-pecuniary loss) of €38,000. Mr. McCarthy’s gross salary at the relevant time was slightly over €23,000. It does not appear that Mr. McCarthy had any other source of income. In those circumstances the amount of deductions for tax and PRSI would have been very small and would, almost certainly, have left Mr. McCarthy with a net salary in excess of €20,000. Even if relevant welfare payments were to be taken into account (a point on which I express no view), it seems manifestly clear that Mr. McCarthy would have been worse off to a sum in excess of €10,000 per annum, as a result of having been compulsorily retired at the age of 60.
9.8 Given that the assessment was being conducted some three years after the event, and that Mr. McCarthy would not appear to have worked in that period, it is difficult to see how any assessment of the pecuniary loss concerned could have come in at much less than five years net loss for there would be little, if any, justification for making a deduction to reflect the possibility that Mr. McCarthy might obtain alternative employment prior to 65. Furthermore, it is clear that the proper measure of pecuniary loss would have been based on a five year period, having regard to the Labour Court’s finding that Mr. McCarthy’s contractual retirement age was 65. On that basis Mr. McCarthy could not have been the subject of a compulsory retirement, without discrimination, until 65 and thus the consequences of what the Labour Court found to be the discriminatory act in requiring Mr. McCarthy to retire at 60 was that he lost five years employment.
9.9 On the basis of the above rough analysis, it is manifestly clear that the pecuniary loss attributable to the discrimination found in relation to Mr. McCarthy would, on any view, have well exceeded the sum of €38,000 awarded by the Labour Court. The Labour Court was, of course, constrained to limit its award to that sum for the reasons which I have already identified.
9.10 I am not, on the facts of this case, therefore, satisfied that there is any proper basis for the ground of appeal advanced which seeks to challenge the quantum of the award on the basis of a lack of analysis. I would wish to emphasise that what I have just said is dependant on the fact that, in this case, it was manifestly clear that any proper calculation of pecuniary loss would have well exceeded the maximum amount which the Labour Court could have awarded. Very different considerations would apply in a case where pecuniary loss might, even on one view, be less than the maximum available for award by the Labour Court. In those circumstances a precise calculation of pecuniary loss would have a real and significant effect on the ultimate award. It follows that in such cases it is incumbent on the Labour Court to set out the basis on which it approached its calculation of pecuniary loss, including specifying its findings of fact insofar as factual questions relating to pecuniary loss may have been contested. To do otherwise would be to leave both parties without an adequate basis for assessing whether the calculation of pecuniary loss had been properly conducted. However, where, as here, it is manifestly clear that any calculation of pecuniary loss would have well exceeded the maximum jurisdiction available to the Labour Court under the Acts, then the absence of any such analysis cannot prejudice the parties because there could be no basis for suggesting that the Labour Court could have awarded less than the relevant sum given its obligation, as it properly identified in the course of the determination, to allow as part of the compensation, any pecuniary loss which could be established subject only to the overall jurisdictional limitation itself.
9.11 In passing I should comment that it might be preferable for the Labour Court, if adopting a practice such as was adopted in this case of awarding the maximum remaining amount available in respect of pecuniary loss, to make it clear that that is in fact what is being done. However, it seems to me that it is appropriate to infer from the matters which I have sought to analyse that such a practice was in fact what led to the award in this case. On that basis I am not satisfied that any valid ground of appeal on a point of law has been made out in respect of the quantum issue as well.
10. Conclusions
10.1 For the reasons which I have set out it does not seem to me that any of the grounds of appeal, therefore, are sustainable. On that basis, I propose to reject the appeal and affirm the order of the Labour Court.
10.2 I will hear counsel in respect of costs in due course.
Equality Authority v Ryanair
DEC – E/2000/14
Equality Officer
29 December 2000
[2001] 12 E.L.R. 107
The full text of the decision of the Equality Officer:
Background
The complainant pursuant to section 85(1)(d) of the Employment Equality Act 1998, referred a case to the Director against the respondent complaining that ‘a publication or display has been made in contravention of section 10’ of the Act. The complainant states that the advertisement stipulated that the respondent needed ‘a young and dynamic professional …’ and that ‘the ideal candidate will be young dynamic …’ The complainant contends that this amounted to discrimination on the age ground. The respondent states that the Act refers to age in years and not in vague concepts such as young or old. The respondent accepts that the word ‘young’ was used twice in the advertisement. However, the respondent contends that the word should not be taken in isolation and the advertisement should be read as a whole. The respondent states that it was clear, in the context of the advertisement, that it was enthusiasm which was being sought.
Conclusions
The Equality Officer found that the use of the word ‘young’ clearly indicated, or might reasonably be understood as indicating, an intention to exclude applicants who were ‘not young’, i.e. applicants who were ‘middle-aged’ or ‘old’ and that the words ‘young’, ‘middle-aged’ and ‘old’ describe different ages in the context of section 6(2)(f) of the Act. It was the view of the Equality Officer that the use of the word ‘young’ as a requirement in this employment advertisement constitutes discrimination on the age ground.
Decision
The Equality Officer decided, under section 85(3)(b) of the Act combined with section 79 that the publication was made in contravention of section 10. Furthermore the Equality Officer decided that the respondent discriminated on the age ground, in terms of sections 6(1) and 6(2)(f) of the Act, by causing an advertisement to be published in contravention of section 10(1) of that Act. The Equality Officer ordered that the respondent pay the complainant £8,000 as compensation for the effects of discrimination and that the respondent take a specific course of action, including: a comprehensive review of its equal opportunities policies to ensure that the policies are fully compliant with equality legislation, equality proofing of recruitment, promotion and selection guidelines and the publication of a statement making a clear commitment to equal opportunities policies.
Background
On 2 May 2000 the Equality Authority (complainant), pursuant to section 11085(1)(d) of the Employment Equality Act 1998 (the Act), referred a case against Ryanair (respondent) to the Director of Equality Investigations complaining that ‘a publication or display has been made in contravention of section 10’ of the Act. Section 10(1) of the Act provides that:
A person shall not publish or display, or cause to be published or displayed, an advertisement which relates to employment and which
(a) indicates an intention to discriminate, or
(b) might reasonably be understood as indicating such an intention.
In accordance with her power of delegation under section 75 of the Act the Director of Equality Investigations assigned this case to an Equality Officer for investigation and decision.
The advertisement at issue was for the position of Director of Regulatory Affairs at Ryanair and was placed in the appointments section of The Irish Times on 25 February 2000.
Two months prior to the referral of the case (on 8 March 2000) the complainant wrote to the respondent setting out its view that the advertisement was in breach of the Act. The respondent rejected the complainant’s view and stated that ‘young’ was a state of mind and not a factual age.
Summary of complainant’s case
It is the contention of the complainant that the advertisement was in breach of section 10 of the Employment Equality Act 1998.
The complainant states that the advertisement stipulated at the outset that the respondent needed ‘a young and dynamic professional …’ and further on that ‘the ideal candidate will be young dynamic …’. The complainant states that section 6(1) of the Employment Equality Act 1998 provides that ‘discrimination shall be taken to occur where, on any of the discriminatory grounds in subsection (2) …, one person is treated less favourably than another is, has been or would be treated’. The complainant also states that the age ground is set out in section 6(2)(f) as: ‘that they are of different ages …’.
The complainant submits that the respondent’s advertisement in its use of the word ‘young’ in the two phrases cited above, clearly—
(i) indicated an intention to discriminate on the age ground contrary to section 10(1)(a) of the Act, and/or
(ii) might reasonably have been understood as indicating such an intention contrary to section 10(1)(b) of the Act.
The complainant rejects the respondent’s view, expressed in correspondence *111 between them in March 2000, that the advertisement did not breach section 10 of the Act on the grounds that—
(i) ‘young’ is a state of mind and not a factual age, and
(ii) the intention of the advertisement was to attract people who may not have experience to apply for this senior position.
The complainant submits that a common-sense interpretation of the advertisement does not permit the gloss placed on it by the respondent. The complainant contends that a reference to ‘young’ in its natural meaning is a reference to a factual age and that the advertisement went well beyond encouraging people without experience to apply. The complainant states that the advertisement indicated on the part of the respondent a clear intention to take into account, as a relevant criterion, an applicant’s age and to give preference to an applicant from a younger age group rather than from an older age group.
The complainant says that the Act clearly prohibits an employer from using age as a relevant criterion for the purpose of differentiating between applicants for employment who are between the ages of 18 and 65. The complainant also says that section 10 of the Act prohibits the use of advertisements which either indicate such an intention or might reasonably be understood as indicating such an intention.
In support of its case the complainant, also submits—
(a) a copy of the letters exchanged between it and the respondent in March 2000, and
(b) a copy of its correspondence with The Irish Times , in the course of which The Irish Times agreed with the complainant’s view that ‘the reference to “young” in the advertisement is in breach of section 10 of the Act as it discriminates against people who are not young’.
The complainant requests the Equality Officer to make:
1. A recommendation (The Employment Equality Act 1998 provides that an Equality Officer issues a decision which is binding, unless appealed) that the advertisement of the respondent dated 25 February 2000 was in contravention of section 10, in terms of section 6(1) and 6(2)(f) of the Act;
2. A recommendation that the respondent refrain in future from publishing advertisements which are in breach of section 10 of the Act;
3. Such further order as may seem appropriate.
*112
Summary of respondent’s case
The respondent states that it placed an advertisement for the position of Director of Regulatory Affairs in the appointments section of The Irish Times on 25 February 2000. The respondent denies that the advertisement breached section 10 of the Act and that it breached any employment equality legislation.
The respondent states that section 6(2)(f) of the Act defines the age ground as ‘that they are of different ages’, but subject to subsection (3). Subsection (3) provides that ‘where (a) a person has attained the age of 65 years, or (b) a person has not attained the age of 18 years, then subject to section 12(3) (section 12(3) of the Act relates to vocational training only), treating that person more favourably or less favourably than another (whatever that other person’s age) shall not be regarded as discrimination on the age ground’. The respondent asserts that the Act refers to age in years, not in vague concepts such as young or old. On this basis the respondent submits that section 10 of the Act does not apply to this advertisement and this reference of a complaint to the Director was inappropriate and ill-founded.
The respondent accepts that the word ‘young’ was used twice in the advertisement. However, the respondent contends that those words should not be taken in isolation and that the advertisement should be read as a whole. The respondent states that the advertisement did not specify any age limits thereby not indicating any intention to discriminate. The respondent submits that the advertisement could not be reasonably understood as indicating an intention to discriminate.
The respondent further states that—
(a) it was clear, in the context of the advertisement, that it was enthusiasm which was being sought,
(b) the word ‘young’ was never used without the word ‘dynamic’, and
(c) the advertisement stated ‘the key ingredients we are looking for are passion and ambition’.
The respondent submits that these are not age-related criteria.
The respondent also contends—
(a) that the advertisement did not connote an individual having, in terms of age, a relevant characteristic,
(b) that it did not say that applications were invited from, e.g. candidates between the ages of 20 and 25, and
(c) that it was not descriptive of and did not refer to a post or occupation of a kind previously held or carried on only by individuals of a particular age.
The respondent contends, therefore, that the advertisement did not fall within the wording of section 10(2)(a) and/or 10(2)(b) of the Act. The respondent also maintains that section 10(2) qualifies section 10(1) and that it is essential to its interpretation. The respondent says that this section provides that if an advertisement falls into either of the categories at 10(2)(a) or 10(2)(b) then, unless the advertisement indicates a contrary intention, the advertisement shall be taken to indicate an intention to discriminate on whichever discriminatory ground is relevant in the circumstances.
The respondent contends that the advertisement does not fall within section 10(2) and that, therefore, the test set out in section 10(1) does not apply. In these circumstances the respondent maintains that it was not necessary for the advertisement to indicate a contrary intention.
The respondent says that it sought to avoid—
(a) age discrimination in placing this advertisement by seeking to encourage not only candidates with years of experience, but also candidates who might have less experience, and
(b) the common practice of seeking only very experienced and therefore older candidates for such posts.
The respondent states that experience was not the deciding factor in this recruitment process and that it sought to emphasise this in the advertisement.
The respondent states that 30 candidates applied for the position and that the ages of candidates who gave that information ranged between 25 and 38. Five candidates were interviewed and the successful candidate was aged 32. The respondent states that age was not a factor in short-listing or appointment to this position and contends that candidates were not deterred from applying for this position on the grounds of age. The respondent says that two of the candidates gave no information which would disclose their ages and that this information was not sought as it was not relevant to the selection process.
The respondent notes the wording of section 10(1) of the Act which commences ‘A person shall not publish or display, or cause to be published or displayed, an advertisement …’. The respondent points out that the advertisement in question was published by The Irish Times newspaper and not by it. The respondent notes with grave concern that proceedings have been brought against it alone, the secondary party within the wording of the section relied upon. The respondent also notes that many advertisements in The Irish Times and other publications, since the date of publication of the advertisement complained of, have used the word ‘young’ and submits a schedule of sample advertisements from a number of recruitment sources. The respondent said it is unaware of any referrals by the Equality Authority in respect of these advertisements and submits that such referral would be inappropriate for the reasons *114 set out in its submission.
The respondent states that it is committed to equal opportunities and that this is reflected in ‘the Rough Guide to Ryanair’, a document which is given to all its new employees. The respondent submits an extract from this guide (Appendix D attached) and draws specific attention to the paragraph headed — ‘Equal Opportunities — A way of life at Ryanair’, which reads as follows:
The aim of our policy is to ensure that no job applicant or member of staff receives less favourable treatment on the grounds of race, colour, ethnic or national origins, sex, marital status, sexual orientation, age or disability, or is disadvantaged by unjustifiable conditions or requirements. Our selection criteria and procedures are reviewed regularly to ensure that individuals are selected for posts, promoted and treated on the basis of their ability, knowledge and commitment alone. The bottom line ‘at Ryanair we hire the best person for the job’.
The respondent restates its commitment to equal opportunities as set out in the guide for employees.
Summary of hearing
An oral hearing was held on 27 November 2000. The complainant, in response to the points made in the respondent’s written submission, rejected the view that the complaint was unfounded. The complainant maintained that the response of The Irish Times clearly supported the complainant’s view that the advertisement was discriminatory. The complainant rejected the respondent’s contention that the use of the word ‘young’ does not connote a particular characteristic and the view that section (10)(1) of the Act is qualified by section 10(2). The complainant submitted that the phrase ‘young’ connotes young in years and not ‘middle-aged’ or ‘old’. The complainant also question the basis for the respondent’s assumption that no one was discouraged from applying for the position.
The complainant stated that it did not proceed against The Irish Times as publishers of the advertisement because the reaction of The Irish Times , when the issue was brought to its attention, was different to the respondent’s. The complainant said that The Irish Times did something about it. The complainant contended, in response to the respondent’s view that it is being singled out for action, that the fact that others might be guilty is not a defence.
The complainant asserted that section 85 allows it to refer a matter to the Director and that it is not mandatory in every case. The complainant explained that it held a series of meetings with managers of advertising departments and that it recently issued guidelines on this matter. This approach was necessary because it did not have the resources to check out every advertisement. The *115 complainant said that if Ryanair feels it is being singled out it was because in every other case in which the complainant acted, the employer re-advertised at its own cost, whereas in this case the respondent did not respond positively nor re-advertise. The complainant noted that it has the power to seek an injunction to prevent such advertising and that in these circumstances its approach must be judged as modest and moderate.
The complainant stated that it was looking for a declaration that the advertisement is contrary to the Act. It also stated that for any remedy to be effective a financial penalty should be imposed and that, since it was not looking to gain financially, it would be prepared to donate any award to a voluntary agency working in a relevant sector. The complainant contended that this would ensure parity between the respondent and other employers who have had to bear re-advertising costs.
The respondent said that it still had concerns. The respondent noted that the complainant did not ask it to do anything in the first exchange of letters. The respondent stated that at the time the complainant wrote initially to it on 8 March 2000 (12 days after the advertisement was published) the position was already on offer to one of the applicants. The respondent pointed out that the schedule of advertisements using the word ‘young’ included Irish Times advertisements and that as recently as 17 November 2000 a similar advertisement appeared in The Irish Times .
The respondent went on to quote two definitions of the word ‘young’, as follows—
(i) the first from the Concise Oxford Dictionary (9th ed.) which defines ‘young’ as ‘not far advanced in life, development, or existence’ and ‘immature or inexperienced’, and
(ii) the second from a Dictionary of Irish Law (Revised 2nd ed.) which does not define ‘young’ on its own but does define ‘young person’ as follows: ‘for the purposes of employment a young person is a person who has reached the school leaving age (qv) but is less than 18 years of age’.
On this basis the respondent asserted that the word ‘young’ in the context of the advertisement was meaningless, in that it clearly did not want a head of regulatory affairs who would come under the above definitions. The respondent conceded that the word ‘young’ was foolishly used and the word ‘enthusiastic’ should have been used instead.
The respondent stated that the Act was sadly lacking in that the reference to age only refers to years. The respondent offered to issue a statement on equality, while emphasising that it had made a genuine error.
The respondent was asked to explain how the position came about and how *116 the advertisement was drafted. The respondent explained that the need for this new position was identified by the chief executive officer and that the advertisement was drafted by the head of personnel and sent for publication very quickly. The respondent admitted that there was no process to equality proof such advertisements, i.e. to take into account the Act. The respondent gave an assurance that this would not happen now and pointed out that its personnel staff are all IPD (Institute of Personnel Development) qualified. The respondent admitted that it moved too quickly and that it would not now use the word ‘young’ in a similar situation.
In response to further questions the respondent stated that there were no written criteria for the position or selection guidelines other than the advertisement and that only two people were involved in both the short-listing and interviewing, viz. the CEO and head of personnel. Five candidates were shortlisted for interview. Four of them were between 29 and 32 years of age, the fifth did not indicate his/her age. The position was initially offered to a person (age 31) who did not accept the position. The final successful candidate was 32 years of age. In response to a question the respondent agreed that a young person and an old person would not generally be regarded as being of the same age.
The complainant explained that the referral came about because the respondent was dismissive of its initial letter and that there was no point asking it to re-advertise the position if it did not accept that it was wrong.
Conclusion of the Equality Officer
The matter for consideration by me is whether or not the respondent discriminated on the age ground, in terms of sections 6(1) and 6(2)(f) of the Employment Equality Act 1998, by causing an advertisement to be published in The Irish Times in contravention of section 10 of that Act. In making my decision I have taken into account all of the evidence, both written and oral, submitted to me by the parties to the case. Prior to my consideration of the substantive issue, there are two preliminary issues which must be addressed.
In the first instance I must consider whether the word ‘young’ is directly related to the age ground as defined in sections 6(1) and 6(2)(f) of the Act. The complainant submits that a common-sense interpretation is appropriate and that the word ‘young’ in its natural meaning is a reference to a factual age. The respondent argues that the Act defines the age ground as ‘that they are of different ages’ which is qualified by the exclusion of persons 65 years of age or older or under 18 years of age. The respondent describes ‘young’ and ‘old’ as vague concepts and states that the use of the word ‘young’ in the advertisement was meaningless. In support of this contention the respondent submits extracts from two dictionaries, one of which (the Concise Oxford Dictionary (9th ed.)) defines the word ‘young’ as ‘not far advanced in life, development, or existence’ and ‘immature or inexperienced’. The second extract did not have a defi *117 nition of ‘young’ on its own.
Having considered the two positions I reject the respondent’s arguments on this issue on the following grounds—
(a) It is my view that a reasonable person would accept, as common-sense, the interpretation of ‘young’ in the context of a job advertisement as relating to age.
(b) It is my view that a reasonable person would accept that the words ‘young’, ‘middle aged’ and ‘old’ define stages and factual ages in life; the fact that there might not be universal agreement on the specific limits of each of these stages does not affect the issue.
(c) The dictionary extract ( Concise Oxford Dictionary (9th ed.)) which the respondent submitted also defines ‘young’ as ‘not yet old’. I note that the respondent quoted selectively from the definition at oral hearing and omitted this reference.
(d) The respondent accepted at the hearing that ‘young’ and ‘old’ could not be used to describe people who are the same age, thus, in my view, accepting that ‘young’ and ‘old’ mean ‘different ages’. I find, therefore, that the words ‘young’, ‘middle aged’ and ‘old’ describe different ages in the context of section 6(2)(f) of the Act.
The second issue to be considered is whether section 10(1) of the Act is always qualified by section 10(2) as argued by the respondent. Section 10(1) of the Act provides that ‘A person shall not publish or display, or cause to be published or displayed, an advertisement which relates to employment and which—(a) indicates an intention to discriminate, or (b) might reasonably be understood as indicating such an intention.’Section 10(2) of the Act provides that:
For the purposes of subsection (1), where in an advertisement a word or phrase is used defining or describing a post and the word or phrase is one which—
(a) connotes an individual of a particular sex or an individual having (in terms of any of the discriminatory grounds) a particular relevant characteristic, or
(b) is descriptive of, or refers to, a post or occupation of a kind previously held or carried on only by members of one sex or only by individuals having such a particular relevant characteristic, then, unless the advertisement indicates a contrary intention, the advertisement shall be taken to indicate an intention to discriminate on whichever discriminatory ground is relevant in the circumstances.
In my view the test set out in the first subsection is straightforward. There are only three possible answers to the question ‘does the advertisement or display indicate an intention to discriminate or might it reasonably be understood as indicating such an intention?’; ‘yes’, ‘no’ and ‘not clear’. The first two answers are clear-cut and require no further elaboration; it is only in the third case that there is a need to rely on the more refined test out in the second subsection. Therefore, I reject the respondent’s view and I find that it is appropriate to apply section 10(1) of the Act on its own in the circumstances described above.
Taking into account my findings above I can now consider the substantive issue as to whether or not the respondent discriminated on the age ground, in terms of sections 6(1) and 6(2)(f) of the Employment Equality Act 1998.
The only specification available for the position was that set out in the advertisement. There were no other criteria set by the respondent for the recruitment/selection process. The respondent’s requirements, as clearly stated in the advertisement, were—
(i) ‘a young and dynamic professional’,
(ii) ‘the ideal candidate will be young dynamic’,
(iii) ‘from a legal/professional/regulatory or civil service background’ and
(iv) ‘the key ingredients we’re looking for are passion and ambition’.
In my view all these terms are clear and unambiguous. By stating so clearly what it wanted, the respondent also clearly indicated the type of applicant it did not want. On this basis I reject the respondent’s contention that the word ‘young’ in the context of the advertisement is meaningless. I also reject its claim that the use of the word ‘young’ meant that it was seeking ‘enthusiasm’ and I reject, as a defence, its claim that it made a genuine error or that it merely acted too quickly. Discriminating by mistake or by acting too quickly are not valid defences under the Act.
In my view many people who are older rightly regard themselves as young or young at heart. However, most people in that situation recognise that others may not, necessarily, regard them in the same light. In my opinion, people in such a situation seeking employment would feel rejected and excluded when they see an advertisement which specifies ‘young’ as a requirement for a job.
I find, therefore, that the use of the word ‘young’ clearly indicated, or might reasonably be understood as indicating, an intention to exclude applicants who were ‘not young’, i.e. applicants who were ‘middle-aged’ or ‘old’. Furthermore I find that the use of the word ‘young’ to describe the type of person required for the position indicated, or might reasonably have been understood *119 as indicating, an intention to discriminate against a person who was ‘not young’. It is my view that the use of the word ‘young’ as a requirement in this employment advertisement constitutes clear discrimination.
This finding is supported both by the respondent’s submission of the dictionary extract ( Concise Oxford Dictionary (9th ed.)) which also defines ‘young’ as ‘not yet old’ and its contention that it ‘sought to avoid … the common practice of seeking only very experienced and therefore older candidates for such posts’. This finding is further supported by the fact that, of the applicants who indicated their age (28 out of 30 applicants), none was over 40 years of age.
Accordingly I find that the respondent discriminated on the age ground, in terms of sections 6(1) and 6(2)(f) of the Employment Equality Act 1998, by causing an advertisement to be published in The Irish Times in contravention of section 10(1) of that Act.
There are four other matters which I also wish to consider, as follows:
1. The respondent submitted an extract from its employee’s guide, ‘The Rough Guide to Ryanair’ as proof of its commitment to equal opportunities. The respondent emphasised this commitment frequently, it is a ‘way of life at Ryanair’ and it also pointed out that its personnel staff are ‘all IPD qualified’. It is a matter of concern that despite such declared commitments to equal opportunities the guide only lists six of the nine discriminatory grounds under the Act. The three missing grounds are family status, religion and membership of the Traveller community. It is also a matter of concern that the respondent did not have a procedure to equality-proof employment advertisements. These omissions indicate that there is need for a review of the respondent’s equal opportunities policies and practices.
2. The respondent stated in the course of the hearing that there were no written criteria for the position and no selection guidelines other than the advertisement, that only two people, both male, were involved in both the short-listing and interviewing and that there are no records of the interview procedures or markings. The failure to set specific criteria for the position, the lack of transparency in recruitment and selection procedures and the absence of gender balance in the selection / interview process is a matter of concern. This situation should not arise in a company which is committed to equal opportunities policies.
3. The respondent noted that many advertisements in The Irish Times and other publications since the date of publication of the adver *120 tisement complained of have used the word ‘young’ and submitted a schedule of sample advertisements from a number of recruitment sources. At the hearing the respondent referred to a similar advertisement in The Irish Times as recently as 17 November 2000. I did not pursue any of these allegations as they are not directly related to the case before me. The complainant did not reject these claims and merely stated that it did not have the resources to check out every advertisement. The complainant said it had discussions with managers of advertising departments on this matter and has drawn up guidelines for publishers. Individuals have the right under the Act to refer complaints of discriminatory advertising to the Director. However, if the schedule submitted by the respondent is indicative of the general position in employment advertising, it would appear that there may be wide-scale contravention of section 10 of the Act. This is a matter of concern which needs to be addressed.
4. The respondent was concerned that proceedings have been brought against it alone and not the publisher. However, it is clear that the power of the complainant under section 85(1)(d) is a discretionary power and the complainant is not obliged to proceed against each and every party in such a situation.
Decision
My decision, under section 85(3)(b) of the Act combined with section 79, is that the publication was made in contravention of section 10. Furthermore I have decided that Ryanair, the respondent, discriminated on the age ground, in terms of sections 6(1) and 6(2)(f) of the Employment Equality Act 1998, by causing-an advertisement to be published in The Irish Times in contravention of section 10(1) of that Act.
I must now consider what redress is appropriate, in accordance with section 85(3)(a) and as provided for in sections 82(1) and 82(4) of the Act. In my view overt and public discrimination, which has occurred in this case by way of discriminatory advertising, must be countered in the strongest possible way. I note that, if this case had been taken by an existing employee of the respondent, the maximum amount I could have awarded is equivalent to two years’ pay. However, as the complainant is not an employee the maximum which may be awarded is £10,000. I do believe that the maximum award could be justifiably applied in cases of discriminatory advertising. However taking into account all the circumstances of the case, including the fact that this is the first case to be decided under the Employment Equality Act 1998, I am satisfied that the maximum award is not appropriate on this occasion.
In accordance with sections 82(1)(c) and 82(4) of the Act I hereby order *121 that the respondent pay the complainant £8,000 as compensation for the effects of discrimination.
In accordance with section 82(1)(e) of the Act I hereby order that the respondent take the following course of action. Specifically, I order that:
1. the respondent carry out a comprehensive review of its equal opportunities policies to ensure that the policies and practice are fully compliant with equality legislation. The respondent should seek independent expert advice in carrying out the review and implementing its recommendations. This review should be completed by 30 June 2001.
2. the respondent ensure that its employee’s guide, ‘the Rough Guide to Ryanair’ is updated to reflect all nine grounds of discrimination, without delay, and, in any event, not later than 28 February 2001.
3. the respondent put in place procedures to equality proof all future recruitment, promotion and selection guidelines. These procedures should be put in place at the earliest opportunity and, in any event, not later than 30 June 2001.
4. the respondent inform all its employees of this decision, and
5. the respondent publish, as offered, a statement making a clear commitment to equal opportunities policies, specifically referring to all nine grounds under the Employment Equality Act 1998. This statement is to be published in an advertisement in The Irish Times , of at least the same size and prominence as the advertisement complained of. The advertisement is to be published without delay, and in any event, not later than 28 February 2001.
There is one other issue which I must address, even though it cannot form part of my order and is, therefore, not legally binding. I have stated bove that it is my view that overt and public discrimination must be countered in the strongest possible way. I note that the respondent provided evidence which appeared to show that there was widescale contravention of section 10 of the Act. This evidence was not challenged by the complainant, who simply said that it pursued the matter through discussions with advertising managers and the issuing of guidelines. If the facts are as stated this approach does not provide adequate protection to job applicants who are the victims of discrimination. I do not think that publishers will introduce appropriate equality-proofing mechanisms unless they are also subject to proceedings under the Act. I wish to recom *122 mend, therefore, that the complainant should, in future cases, consider (a) making use of the power to seek an injunction provided to it under the Act (section 10(5)) and (b) taking action against both the publisher and the employer, as appropriate.
Louth County Council v Mary Clarke
Determination Number EDA 1916
Labour Court
27 May 2019
[2019] 30 E.L.R. 216
May 27, 2019)
The full text of the Labour Court’s determination was as follows:
This is an appeal by Louth County Council (the respondent) against a decision ADJ-00010222 of an Adjudication Officer in which he held that a complaint of discrimination on the age ground made by Mary Clarke (the complainant) was well-founded. The complaint was referred to the Workplace Relations Commission on 24 August 2017. The Adjudication Officer issued his decision on 14 December 2018. The respondent appealed against that decision to this Court on 21 December 2018.
Background
The complainant was employed by the respondent as a clerical officer from 27 August 2001. Her employment ceased by virtue of her reaching her 65th birthday in June 2017. The complainant alleges that this was a discriminatory dismissal based on her age. The complainant had a contractual retirement age of 65 arising from the qualifications and particulars of office for the office of clerical officer which she accepted when she commenced her employment with the respondent.
Complainant’s case
The complainant submits that the decision to retire her from work at age 65 against her will amounts to discrimination on the age ground contrary to s.8 of the Act. She submits that she was in good health and was capable of discharging her duties. She further submits that having indicated her desire to remain at work beyond age 65 it was incumbent on her employer to take steps to determine whether she was capable of undertaking the work for which she was employed. She submits that it failed to undertake any enquires of this nature and instead proceeded to dismiss her from her employment simply because she had reached 65 years of age. The complainant drew the court’s attention to numerous emails starting on 3 November 2017, seven months before she was due to retire, that she had sent to the respondent seeking to extend her retirement date by 12 months. Apart from a holding response in April 2017 the complainant did not receive any response to her request until two days before she was due to retire when she was advised that her request was being refused. The basis for not accommodating her request was that she was retiring in accordance with the particulars of office that she accepted when she took the job. The complainant’s legal representative raised with the respondent the fact that retirement age for *218 the complainant’s category of staff had changed for employees who commenced employment after the complainant. However, it was the respondent’s position that that had no effect on the complainant’s retirement date.
It is the complainant’s case that she notified the respondent in good time of her desire to remain at work beyond age 65. She submits that despite those notifications the respondent did not take any steps to engage with her to extend her employment but instead dismissed her simply because she had reached 65 years and without regard to her capacity to continue at work.
It is the complainant’s submission to the court that the actions of the respondent amounted to discrimination on the age ground as it made no attempt to determine whether the decision in her case was objectively justified.
Respondent’s case
The respondent denies that it discriminated against the complainant on the age or any other ground. It submits that it is part of the particulars of office for clerical officers who started work at the time the complainant started that they would retire at age 65. The respondent submitted that it has in place a pension scheme that provides income in retirement for staff on reaching the retirement age. It is their submission that the complainant was fully aware that there was a mandatory retirement age of 65 for her category of staff and any changes to the pension arrangements for staff that commenced work at a different time did not apply to her. The respondent does not deny that her application to extend her retirement age was never formally responded to. It is their submission that her application fell through the cracks.
It further submits that to grant the complainant her extension would negatively impact on the respondent’s workforce planning and financial management. However, they were not in a position to explain how that negative impact on the workforce planning would manifest itself other than to confirm that they had replaced the complainant. It was their submission to the court that in terms of financial management that the replacement member of staff was on the start of the incremental scale and the respondent was on the top of the scale so there was a saving of in and around €10,000 for the Council.
It is their case that the decision to fix a retirement age for this class of worker is consistent with s.34(4) of the Act and that it is otherwise necessary reasonable and proportionate in that it facilitates the efficient planning of the departure and recruitment of staff.
The Law
Section 6 of the Act states:
“Discrimination for the purposes of this Act.
6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, *219 on any of the grounds in subs.(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 two 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 subs.(3) (in this Act referred to as ‘the age ground’).”
Section 8 of the Act states:
“8.—(1) In relation to—
(a) access to employment,
(b) conditions of employment,
(c) training or experience for or in relation to employment,
(d) promotion or re-grading, or
(e) classification of posts,
an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.”
Article 6 of Council Directive 2000/78 of 27 November 2000 establishing a general framework for equal treatment in employment and occupation states:
“Article 6
Justification of differences of treatment on grounds of age
1. 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. Such differences of treatment may include, among others:
(a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;
(b) the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment;
(c) the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.
2. Notwithstanding Article 2(2), Member States may provide that the fixing for occupational social security schemes of ages for admission or entitlement to retirement or invalidity benefits, including the fixing under those schemes of different ages for employees or groups or categories of employees, and the use, *220 in the context of such schemes, of age criteria in actuarial calculations, does not constitute discrimination on the grounds of age, provided this does not result in discrimination on the grounds of sex.”
Giving effect to that provision s.34(4) of the Act states:
“34(4) Without prejudice to subs.(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.”
In this case the respondent relied on a retirement age which existed at the time the complainant commenced work, but which had later been changed for the same category of workers based solely on the date they commenced employment.
The court finds that the respondent has not set out grounds that objectively justify the selection of that age for this category of staff. While the respondent relies on the workforce plan and financial management any issues arising in relation to both of those would have to apply equally to employees who now have a right to work beyond 65 based on the date they commenced employment. In those circumstances the court finds that the objective reasons identified by the respondent are not justified by a legitimate aim and therefore the respondent has not complied with s.34(4) of the Act and the complainant’s claim must succeed.
Determination
The court determines that the complainant was discriminated against on the age grounds due to her dismissal from her employment at age 65. The court having considered all aspects of this case and the remedies open to it has decided to award compensation of €20,000 to the complainant. The decision of the Adjudication Officer is varied accordingly.
The court so determines.
Connaught Airport Development Limited T/A Ireland West Airport Knock v John Glavey
EDA 1710
Labour Court
24 April 2017
[2017] 28 E.L.R. 204
Subject
Appeal of Adjudication Officer’s Decision No: ADJ-00001463.
Background
The employer appealed the decision of Adjudication Officer to the Labour Court on 11 August 2016. A Labour Court hearing took place on 5 April 2017. The following is the Court’s Determination.
Determination
This is an appeal by Connaught Airport Development Ltd t/a Ireland West Airport Knock against the decision of an Adjudication Officer of the Workplace Relations Commission under the Employment Equality Acts 1998-2011 (“the Acts”). Mr John Glavey complained that he was subjected to discriminatory treatment on the age ground in terms of s.6(2)(f) of the Acts and contrary to s.8 of the Acts when his former employer imposed a mandatory retirement age of 65 years.
For ease of reference, the parties will be referred to as they were at first instance, therefore Connaught Airport Development Ltd t/a Ireland West Airport Knock will be referred to as “the respondent” and Mr John Glavey will be referred to as “the complainant”.
The Adjudication Officer held that the complainant had established a prima facie case of discrimination on the ground of age, and held that his complaint *206 of discrimination was well-founded. He awarded reinstatement and required the respondent to pay the complainant compensation in the sum of €6,500 for the effects of discrimination.
The complaint was referred to the Workplace Relations Commission on 20 January 2016.
Background
The complainant was employed as a senior bar tender within the catering department of the airport until his retirement on 6 January 2016. He was initially employed by Campbell Catering at the airport from 1991 until 2003 and transferred to the employment of the respondent in 2003 under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (“the Regulations”) when the airport’s catering staff was taken over by the respondent.
The respondent is a regional airport which opened in May 1986 and is now the fourth largest airport in Ireland directly employing 159 staff and additional temporary staff in the summer season. It directly employs all staff involved in the day-to-day running of the airport.
The critical operational functions include: air traffic control; fire and security; airline ground handling services; aircraft refuelling and technical and navigation services. Other commercial functions include retail and catering services.
Summary of the complainant’s case
Ms Martina Weir, SIPTU on behalf of the complainant submitted that the complainant had been discriminated against as his employment was terminated when he reached his 65th birthday. Ms Weir clarified for the Court that the redress sought by the complainant is the award of €6,500 in compensation as decided by the Adjudication Officer.
Ms Weir submitted the following points in support of the claim:
• Neither the Campbell Catering contract of employment nor the respondent’s contract of employment post the transfer furnished to him in 2006 contained a retirement age. The latter contract was the subject of negotiations between the respondent and SIPTU and resulted in the final proposals being balloted upon by those employees, including the complainant, who transferred to the respondent in 2003.
• It came as a surprise to the complainant when the respondent informed him that he would be retiring in January 2016.
• Negotiations conducted between 2004 and 2006 concluded in an agreement to harmonise the terms and conditions of employment of former Campbell Catering’s staff with existing terms for established airport employees. However, the new contracts issued did not fix a retirement age, despite the respondent *207 having the opportunity to do so.
• While the complainant was aware of retirements from the airport he may not necessarily have been aware of the ages of the retirees. There were at least two employees who were retained beyond their 65th birthdays.
• The complainant is fit and well and had no difficulty carrying out the duties associated with his job. Therefore, there is no justification for a mandatory retirement age in this situation.
• The Government has increased the age for receipt of the state pension to 66 years; there is a requirement on those between 65 and 66 years to be available for work. Therefore, there can be no justifiable objective reason for the respondent’s decision to place the complainant in such a position, and no legitimate aim or objective, can be served which could not be achieved by allowing the complainant to remain until he reaches 66 years.
• The complainant is one of a few who hold a 39 hour per week contract of employment whereas new recruits are on temporary and/or part-time contracts, and this seems to be the influencing factor in the decision taken by the respondent, as opposed to the aim of freeing up positions for younger people entering the employment.
• The complainant is not a member of an occupational pension scheme and will not qualify for the state pension until he reaches 66 years. While the respondent introduced an occupational pension scheme in 2010, the complainant did not join as it was his belief that he would not gain any benefit from it.
Summary of the respondent’s position
Ms Mary Fay BL, instructed by Pembroke Solicitors, on behalf of the respondent, disputed the claim that the complainant was discriminated against on the age ground.
Ms Fay submitted the following points in support of the respondent’s position:
• The respondent’s age of retirement of 65 years had been justified within the meaning of s.34(4) of the Acts and art.6 of the Directive 2000/78 “Establishing a General Framework for Equal Treatment in Employment and Education” (“the Directive”), and that the means chosen by the respondent are both appropriate and necessary for achieving that aim.
• It was an express term of the complainant’s terms and conditions of employment with Campbell Catering that employment would not continue past an employee’s 65th birthday. The complainant signed and accepted these terms in 1998. While all Campbell Catering employees who transferred to the respondent pursuant to the Regulations in 2003 did so on their existing terms and conditions, some of those terms were revised pursuant to a collective agreement reached with SIPTU in 2004. All affected employees including the complainant were issued with new contracts of employment.
• An occupational pension scheme has been available to all hourly paid employees, including the complainant, since 2011 which provides for *208 employees to make a contribution of five per cent to the scheme and the respondent makes a matching contribution. All employees of the respondent were notified of the introduction of the scheme and the pension provider gave presentations to the staff in 2010. Prior to 2011 the respondent facilitated all employees wishing to make arrangements for a private pension through a PRSA. The complainant elected not to make contributions to a PRSA or the occupational pension scheme once established.
• The respondent strives for cohesion throughout the workforce and has one universal retirement age for all staff. This ensures consistency amongst all of its employees and creates certainty in succession planning for the airport.
• This certainty allows it to plan ahead to find suitable replacements for workers who leave or are coming up to retirement.
• It allows the respondent to avoid the need to terminate an employment contract in situations which are humiliating for workers by reasons of their advanced age, thus preserving their dignity and avoiding humiliation and the need to avoid costly disputes about capacity or underperformance.
• Having a retirement age at 65 years allows it to free up positions so that younger workers can enter the respondent workforce and have a defined career path where their ambitions can be realised. The lack of new young entrants to the airport would have an adverse effect not only on the catering department, but on all departments within the respondent, especially critical ones like the fire service, security, ground services and customer service. This would not only have an effect on productivity but also on health and safety.
• While it is accepted that the new contract did not contain a mandatory retirement clause, it is submitted that such a clause should be implied as it has been the accepted custom and practice of the respondent since 1986 for employees to retire when they reach the age of 65, save in the most limited and exceptional of circumstances. The complainant would have been aware, or ought reasonably to have been aware of this; McCarthy v HSE[2010] E.L.R. 165 and Sweeney v Aer Lingus Teo[2013] 24 E.L.R. 162.
• The two exceptions related to (i) an employee who worked in retail retired in July 2009 at age 65, approximately 11 months post her 65th birthday. This arose in exceptional circumstances due to operational requirements at that time as passenger numbers increased by 73,080 from 2007 to 2008 and (ii) an employee, who was compulsorily retired at age 65, was re-engaged on a fixed-term contract in exceptional circumstances relating to work for a standalone capital runway overlay project and his salary was reclaimed from the Department of Transport.
• The respondent fully believes in creating promotional opportunities for more junior staff and its preference is always to promote from within. Job vacancies are posted internally first, as internal promotion is good for staff morale.
• The sharing of employment opportunities is particularly relevant in the instance case as the respondent is the main employer in the area at a time when employment opportunities in the area are limited. To free up jobs so that younger workers can enter to the workforce and younger workers have an opportunity for advancement/promotion. *209
• The respondent endeavours to establish a balanced age workforce to ensure motivation and dynamism are at the core of each department. This can be increased with the prospect of promotion within each department. The staff turnover rate for permanent employees is very low, average turnover rate from 2013 to present is 2.7 per cent.
In support of her contention that there were objective grounds for the imposition of a retirement age, Ms Fay relied upon a number of cases, viz. Palacios de la Villa v Cortefiel Services SACase C-411/05[2007] E.C.R. 1-8531 where the European Court of Justice accepted Spain’s justification for a compulsory retirement age of 65, namely that retirement ages assisted in promoting employment for younger people, particularly in difficult economic circumstances. Similarly, in Domnica Petersen v Berufungsausschuss fur Zahnarzte fur den Bezirk Westfalen-LippeCase C-341/08[2010] E.C.R. 254 the European Court of Justice appeared to accept that sharing out of employment between the generations (in this case through the forced retirement at 68 of the exercise of the activity of a public panel dentist in Germany) was not precluded by art.6(1) if, taking into account the situation in the labour market concerned, the measure was appropriate and necessary for achieving that aim.
In Rosenbladt v Ollerking Gebaudereinigungsge GmbItaCase C-45/09[2010] E.C.R. I-9391 concerning a provision for compulsory retirement at age 65 in a collective agreement for the commercial cleaning sector, the European Court of Justice held that the aims of sharing employment between the generations, making it easier for younger workers to find work, particularly, at a time of chronic unemployment and not requiring employers to dismiss employees on grounds of incapacity, which might be humiliating, were in principle capable of objectively and reasonably justifying a difference in treatment on grounds of age.
Also, Roche v Complete Bar Solutions DEC-E2013-197 where similar arguments regarding certainty in business planning and encouraging staff morale by using consequential vacancy as an internal promotion opportunity was accepted by the Equality Tribunal as justifying a retirement age of 65 in respect of the respondent’s business servicing equipment in licenced premises.
Evidence
Mr Eoin Flanagan, HR Manager
Oral sworn evidence was given by Mr Eoin Flanagan, HR manager since 2014, gave evidence on behalf of the respondent. He said that while the respondent does not have a policy on retirement age, the custom and practice had been that all employees retire at age 65 years. He said that it was “a given” that employees retire at 65 years. He said that all contracts of employment for all new employees’ state a retirement age of 65 years.
*210
Mr Flanagan said that the complainant was invited to attend all retirement functions of employees who retired. He referred to the two exceptions and said that there were exceptional circumstances in those cases. The first was kept on due to the significant increase in the volume of passengers at the time and the second was brought back from retirement to undertake a special project (upgrade of a runway), which was funded externally.
Mr Flanagan said that approximately half of the respondent’s employees are on full-time contracts and the remainder are on part-time contracts. All vacancies are advertised internally as the respondent has a policy to promote from within. He outlined for the court the various roles within the airport, i.e. those in critical functions and those in commercial/retail functions and number of employees in each role. He stated that there was interchangeability within the roles within each of the functions.
In cross examination, Mr Flanagan said that the complainant was replaced by a person on an “if and when” contract, a part time casual contract on a fixed-term basis, renewable every six months. He was placed on the new entrants’ scale which is a five-point scale. Mr Flanagan said that he was not given a permanent contract as it is the respondent’s policy for new starters to be put on a part-time casual contract. Where such contracts are renewed for a period of four years then employees are given a contract of indefinite duration. All new contracts since 2014 now contain reference to a retirement age of 65 years. However, Mr Flanagan told the court that as the complainant’s replacement is on a fixed-term contract, it does not contain such a reference.
Mr Flanagan said that the complainant’s job was not advertised internally; instead his replacement was recruited into the job having submitted a CV to the respondent at an earlier stage. As he was employed elsewhere at the time, he did not commence employment with the respondent until 16 May 2016 and in the meantime the complainant’s hours were distributed among other employees.
Mr John McCarthy, Operations and Commercial Manager
Mr John McCarthy, Operations and Commercial Manager had previously been employed as a Unit Manager with Campbell Catering based at the airport. Prior to the transfer in 2003, he became an employee of the respondent. He then became responsible for the pending arrival of catering staff to the airport in 2003. He said that it was clear that 65 years was the retirement age in Campbell Catering and in the airport that would have been known. He said that during the negotiations with SIPTU, the issue was never raised.
Mr McCarthy said that with 14 departments across the airport it is important to have cohesion; therefore, a common retirement age is required. He said that as the airport is very heavily regulated it suits to have a retirement age of 65 years and the respondent has been operating on that basis for the past 10 years.
*211
The law applicable
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 …”
Section 34(4) of the 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.”
Subsection (3) deals with occupational benefit schemes and is of no relevance to the issues arising in this case.
The Act gave effect in domestic law to Directive 2000/78 of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (“the Directive”). Recital 14, 25 and arts 2(5), 4(1) and 6(1) of the Directive are of particular relevance to the instant case.
Recital 14 provides:
“This Directive shall be without prejudice to national provisions laying down retirement ages.”
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.”
*212
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.”
Issues for consideration by the court
Existence of a contractual retirement age
Section 34(4) of the Act, prima facie, allowed the respondent to fix a retirement age without contravening the prohibition of discrimination on grounds of age. The jurisprudence of the CJEU on the circumstances in which compulsory retirement is saved by art. 6 of the Directive is relevant only if the court finds that a retirement age was in fact fixed by the respondent and that the retirement age applied to the complainant.
In Earagail Eisc Teoranta v Richard Lett EDA1513 the court held that as a matter of general principle, a termination of employment by way of retirement should be distinguished from a dismissal on grounds of age. A retirement occurs where the employment comes to an end pursuant to a condition of employment which limits an employee’s tenure to the point at which they attain a specified age. It held that a term of employment regarding a retirement age, within the provision of s.34(4) of the Act, can be provided in an employee’s conditions of employment either expressly or by implication, or it can be provided by incorporation where some other document or instrument, of which the employee had notice, can be read in conjunction with the formal contract of employment. The court further accepts that an employer’s employment policy in relation to retirement can take effect as a contractual condition of employment which is, prima facie, protected by s.34(4) of the Act. However, in the court’s view that could only arise where the policy is promulgated in such a manner that the employees to whom it applies either knew, or ought to have known, of its existence.
On that point the judgment handed down by Hedigan J. in McCarthy v *213 HSE[2010] E.L.R. 165 is instructive. In that case a public servant sought to challenge a decision of the HSE requiring her to retire at age 65. The HSE, in common with all public sector employments, maintained an employment policy requiring employees to retire at age 65, in line with certain statutory provisions. Ms McCarthy claimed that the policy did not apply to her because she had never been informed that she would be required to retire at that age and no such term was included in her contract of employment.
It is noteworthy that rather than relying on the existence of the policy, per se, the approach taken by the court was to consider if the employer’s policy on retirement took effect as an implied term in the applicant’s contract of employment. Having reviewed the evidence and the submissions made by the parties Hedigan J. said:
“In addressing the substantive issues raised, the crux of the application lies in whether the retirement age of 65 could be viewed as having been implied into the contract as submitted by the respondent. Two alternative approaches were suggested utilising the ‘officious bystander test’ on the one hand and implication by custom on the other. It is my opinion that in the circumstances of the case, the former provides a more suitable formula to determine whether such a term has been implied, although there is necessarily a large degree of overlap. The court is of the opinion that such a term should indeed be implied into the applicant’s conditions of employment. The applicant is a highly intelligent woman who is legally qualified. It is difficult to accept that she had no knowledge of the retirement age applicable in that part of the public service in which she worked. Furthermore, irrespective of any actual knowledge of this fact, I would consider the dicta of Maguire P. in O’Reilly that anyone concerned ‘should have known of it or could easily have become aware of it’ to be particularly apt in this case. Moreover in addition to the broad awareness of the retirement age among most working adults, the applicant may be deemed as ‘on notice’ that there was an applicable retirement age by virtue of the superannuation scheme. The superannuation scheme, of which she was a member, made reference to the existence of a retirement age, and more specifically, a cut-off for contributions at age 65. I therefore find that such a term can be implied into the terms and conditions of employment.”
Again in Shirlaw v Southern Foundaries Ltd[1939] 2 K.B. 206, the court held that a term as to retirement age may be implied in the contract by application of the so called “officious bystander” test. Here the test was set out in the following terms:
“Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying that if, while the parties were making the bargain, an officious bystander were to suggest some express provision for it in the agreement they would testily suppress him with a comment ‘Oh of course’.”
*214
A term can also be implied in the alternative, and somewhat overlapping, “custom and practice” test adopted in this jurisdiction by Maguire P in O’Reilly v Irish Press[1937] 71 I.L.T.R 194. Here it was held that the practice must be:
“… so notorious, well-known and acquiesced in that in the absence of agreement in writing it is to be taken as one of the terms of the contract between the parties … it is necessary in order to establish a custom of the kind claimed that it be shown that it was so generally known that anyone concerned should have known of it or easily become aware of it.”
It seems to the court that this custom and practice test can appropriately be applied in considering if the policy of an employer took effect as a contractual term or a condition of employment. The terms of a pension scheme may also be relied upon as either implying a term as to retirement or by incorporating the terms of the scheme into the contract. A crucial consideration in addressing the question of incorporation or implication is whether the employee knew, or ought to have known, of the term contended for.
Findings of the court
It is accepted that the complainant’s contract of employment with the respondent did not contain any express term as to retirement age. The respondent relied on the Campbell Catering contracts which stated:
“the minimum age of employment is 18 years of age and employment shall not continue beyond the 65th birthday.”
The court notes that the terms and conditions of employment of those employees who transferred from Campbell Catering in 2003 were the subject of negotiations between the respondent and SIPTU, and resulted in enhanced terms for the former, including the complainant. These terms were eventually balloted upon and agreed in 2004. Each of the employees affected, including the complainant were issued with new contracts of employment incorporating all the revised terms in October 2006. However, it contained no provision regarding retirement age, despite the respondent having the opportunity to do so.
In 2010 the respondent and the union were before the court under the Industrial Relations Acts, where the union sought the introduction of a defined contribution pension scheme for hourly paid employees at the airport, in line with that in existence for management and salaried staff. The court recommended the introduction of a defined contribution pension scheme which was duly introduced. This scheme provided for a normal retirement age of 65 years and was open to any employee interested in joining the scheme to opt into it. For reasons outlined to the court, the complainant decided not to *215 join. Likewise, the court notes that despite having the opportunity to do so the respondent did not revise the complainant’s contract to include the provisions of the pension scheme thus incorporating its terms into the contract.
The court notes that the contract of employment issued to the complainant’s replacement does not contain a retirement age; however, it does make reference to the option to join the pension scheme.
The court notes that the first retirement that occurred in the respondent was in November 2006, after the complainant transferred over to the respondent and after he was supplied with new terms and conditions that had been the subject of negotiations between the respondent and SIPTU and which he was required to ballot on. There have been 10 retirements since 2006, two of whom worked beyond their 65th birthday due to exceptional circumstances.
Having regard to the all the circumstances, the court cannot accept that the complainant had knowledge of a retirement age of 65 years. The respondent had ample opportunity to inform the complainant of a requirement that he retire at age 65. No evidence was adduced of the complainant having been so informed or having been provided with any document from which such a requirement could have been 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 can be regarded as having been implied or incorporated on any of the accepted tests.
In these circumstances the court must hold that the respondent had not fixed a retirement age in respect of the complainant and that he was dismissed because of his age. Therefore, the court finds that the respondent cannot avail of s.34(4) of the Act. In such circumstances it is not necessary for the court to consider respondent’s arguments of objective justification for a retirement age of 65 years.
Determination
For the reasons set out above, the court finds that the complainant herein was dismissed by the respondent by reason of his age, and that this dismissal constituted an act of discrimination within the meaning of s.6(2)(f) of the Act. Therefore, the respondent’s appeal is disallowed.
Having been told that the complainant was not seeking reinstatement, the court determines that the appropriate form of redress is an award of compensation pursuant to s.82(1)(c). Therefore, the court orders the respondent to pay the complainant the sum of €6,500 for the effects of the Act of discrimination.
The decision of the Adjudication Officer is varied accordingly.
The court so determines.
An Aircraft Refueller v An Aviation Fuel Company
ADJ-00016441
Workplace Relations Commission
16 September 2019
[2020] 31 E.L.R. 38
(16 September 2019)
Procedure
In accordance with s.79 of the Employment Equality Acts 1998-2015, and following the referral of the complaint 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.
Background
The complainant commenced employment with the respondent, an aviation fuel company, in the role of an aircraft refueller, on 14 June 2004.
The complainant’s employment with the respondent terminated on 13 August 2018, on the grounds that the complainant had reached the retirement age of 65.
The complainant claims that the termination of his employment on the above basis is a breach of Employment Equality Acts and amounts to discrimination on the grounds of age. The complainant submitted his claim in this regard to the Workplace Relations Commission on 27 August 2018.
Summary of complainant’s case
Background
It was submitted on the complainant’s behalf that he began his employment with the respondent on 14 June 2004, when he was aged 51. It was stated that the complainant was not provided with a written contract of employment. It was further submitted that, at the time the complainant was recruited by the respondent, employees would remain as temporary workers for a considerable number of years before being made permanent.
According to the submission made, the complainant received a statement of these terms and conditions of employment in 2012, in the context of a collective agreement negotiated by his trade union. However, it is submitted that there is no collective agreement in place which deals with retirement age nor is there a company handbook.
In addition, it was submitted that the complainant’s statement of terms and conditions of employment is silent on the matter of retirement age. The complainant also submits that he did not enter any agreement with the respondent in relation to retirement age. It was further submitted that the complainant is unaware of the existence of any document or policy created by the respondent that points to a specified or established retirement age.
According to the complainant’s submission, he joined the respondent’s pension scheme in 2017 and received a letter dated 1 July 2017 from the human resources department, which, inter alia, strongly advised the complainant to consider starting to save towards his retirement on 13 August 2018. However, it was submitted, on the complainant’s behalf, that if he had not decided of his *41 own accord to enter the pension scheme, then he would never have been made aware by his employer directly of a normal retirement age.
It was submitted on behalf of the complainant that the retirement age set out in the pension scheme is the earliest date on which he could draw down his pension. It was further submitted that the obligation rests entirely with the respondent to exercise caution in placing reliance on pension scheme rules and benefit statements in seeking to establish the existence of a contractual retirement age for the employment concerned.
According to the complainant’s submission, on commencement of his employment, as a temporary worker, he was provided with two weeks on-the-job training. It was submitted that the complainant was made permanent in around 2009 according to the above referenced statement of his terms and conditions of employment, which he received in 2012.
In support of his complaint, the complainant referenced three employees who he contends were still engaged with the respondent after 65 years of age. It is further submitted that, as these comparators exist, it is not custom and practice nor an express term that the normal retirement age is 65. Consequently, the complainant submits that the respondent cannot objectively justify his dismissal.
According to the complainant’s submission, he is required to work two day and two night shifts, on an 8:30am to 8:30pm roster. It was stated that the complainant was responsible for the refuelling of commercial airliners at the airport. It was further submitted that the respondent employed four crews comprising of a “chief” and an “operator” on a permanent shift with one crew always being on duty. It was further submitted that, in addition, there would be another “operator” on duty to assist but on a 6am to 6pm shift.
It was submitted that, due to a previous case of a colleague being forced to retire at 65, who later won his appeal at the WRC, the complainant wrote to the respondent’s terminal manager, on 13 November 2017, stating that he did not intend to retire on 13 August 2018. It is submitted that the respondent replied, by letter dated 2 January 2018, outlining their position that the normal retirement age is 65 in accordance with the company’s occupational pension scheme. It was further stated that the respondent also outlined two reasons for the normal retirement age, which was the first time that the complainant was notified of these. It was further submitted that the respondent’s reply did not address the fact that other employees had remained beyond 65 years of age.
According to the complainant’s submission, at that stage, he was not aware of the normal retirement age nor had it been objectively justified. It was stated that it was only recently that the complainant was advised of the reasons why he was being forced to leave his employment.
It was further submitted that the complainant appealed the respondent’s decision of 2 January 2018, and an appeal hearing was held on 6 March 2018. *42 According to the complainant’s submission he was informed, by letter dated 16 March 2018, that his appeal had been rejected.
Union argument — age discrimination
In making the submission on behalf of the complainant, his Trade Union representative made reference to s.6(1) of the Employment Equality Acts 1998–2015.
Against the background of the above section of the Acts, it was submitted, on behalf of the complainant, that a normal retirement age has not been established in his employment. It was further submitted that there is no contractual provision in respect of a normal retirement age nor is it provided for in any associated documentation or policy. It was further submitted that the complainant disputes the respondent’s contention that the normal retirement age is “an implied term” of his employment contract and refers to the three comparators, already referred to, one of whom did not retire until he was 67 years of age. It was further submitted that the comparators provide clear examples that there are different and more beneficial retirement dates applicable within the respondent’s employment.
Without prejudice to the foregoing point, the complainant submits that there are no objective or reasonable grounds by which the respondent might justify the termination of his employment and that this termination was in breach of the protections provided in the equality legislation.
It was further submitted on behalf of the complainant that the facts, as set out above, are of such significance that they are sufficient to establish a prima facie case of discriminatory treatment and that the burden of proof, contained in s.85A of the Acts, shifts to the respondent for rebuttal.
Relevant case law
In support of the complainant’s submission, his trade union representative referred to the following cases: Connacht Airport Development Ltd t/a Ireland West Airport Knock v John Glavey [2017] E.L.R. 204; O’Mahony v Southwest Doctors on Call Ltd Equality Officer Decision DEC-E2014-031, 14 May 2014; Mr Q v An Employer Adjudication Officer Decision ADJ-00001616, 7 July 2017; A Box Office Cashier v An Arts and Entertainment Centre Adjudication Officer Decision ADJ-00006654, 23 November 2017; Cox v RTÉ Adjudication Officer Decision ADJ-00006972, 16 March 2018.
With reference to the above cases, the complainant’s representative referred, inter alia, to the lack of express terms as to retirement age in a contract of employment, no evidence of exploring a more proportionate response to age-related safety concerns and failure to provide reasonable justification for a fixed retirement age.
*43
Conclusion
In summary, it was submitted, on behalf of the complainant, that he was dismissed by the respondent, in circumstances amounting to discrimination on grounds of age, in terms of s.6(2) of the Employment Equality Acts and contrary to s.8 of the Acts. Consequently, the complainant is claiming compensation in accordance with the legislation.
Summary of respondent’s case
Background to the respondent
It was submitted that the respondent manages the high-grade fuel and oil refuelling operations at Shannon Airport. It was further submitted that the respondent employs a compliment of 18 people, made up as follows: (a) relief staff – who are employed on flexible contracts to ensure that there is adequate cover for variations in air traffic levels and to provide cover for leave and sick leave; (b) permanent refuellers – who are employed on permanent contracts of 42 hours per week; and (c) crew chiefs – who are permanent shift supervisors but who perform the job of the refuellers as well as their supervisory duties.
Background to the complainant and sequence to retirement
The respondent submitted that the complainant commenced employment on 14 June 2004, being initially employed in a temporary or relief capacity. It was further submitted that the complainant was made permanent in May 2009, when he was issued with a statement of terms and conditions of employment, in line with the normal entry practice of the respondent.
According to the respondent’s submission, the complainant retired on 13 August 2018 in line with the established normal retirement age, which is also in line with the respondent’s occupational pension scheme, of which the complainant and his trade union were fully aware
It was further stated by the respondent that, just before the complainant started work as a relief worker, the union had successfully pursued a claim to allow relief staff access to the company pension scheme. According to the respondent, in the letter accepting relief staff into the pension scheme in February 2004, the respondent attached a copy of the pension scheme rules.
According to the respondent’s submission, the retirement age for staff would have been well-known to the complainant because of the significance of retirements in the respondent company, where there is no voluntary turnover and permanent/promotion opportunities only arise as a result of retirement.
The respondent states that, although the complainant did not join the pension scheme after his first year of service or when he was made permanent or when he received a statement of terms and conditions of employment, he made enquiries about joining the scheme as recently as August 2011. The respondent submits that, while the complainant was provided with a pension booklet and an application *44 form, he did not apply to join the pension scheme at that time.
According to the respondent’s submission, after discussions with his trade union in 2012 the complainant was issued with a statement of terms and conditions which clearly references the right to join the pension scheme. It was further submitted that in October 2013, the complainant again made contact with management seeking information on the pension scheme. The respondent stated that, on foot of those contexts, the complainant was written to with details of the pension scheme, including the pension rules, which clearly referenced a retirement age as opposed to a pension age. It was further submitted that the complainant again did not apply to join the scheme at that point in time.
The respondent submitted that the complainant was present at a local meeting between his trade union and management in April 2016 where the pension scheme was discussed. It was submitted that at this meeting, the trade union representative requested the respondent to remind staff who had not joined the pension scheme that they were entitled to join the scheme and thereby avail of the company pension contribution.
It was submitted that the respondent, on foot of this meeting, wrote directly to the complainant on 1 July 2016 to remind him that he was entitled to join the pension scheme. According to the evidence presented, this correspondence stated, inter alia: “we would strongly advise you to save towards your retirement on 13 August 2018 especially considering the tax benefits that are available”. According to the respondent, the complainant did not reply to this correspondence, either to refute or challenge the statement of his retirement date of 13 August 2018 or to apply to join the scheme.
According to the respondent’s submission, on 17 October 2016, the complainant’s trade union representative wrote to the respondent, on his behalf, seeking entry to the pension schemes with retrospective payment of pension contributions for the term of his employment. The respondent further stated that in reply to this request, it was pointed out, in a letter dated 20 December 2016, that while the complainant was entitled to join the scheme, the respondent did not consider it had any obligation to make retrospective pension contributions, given the history of the industrial relations negotiations that have taken place with regard to access for relief workers to the pension scheme.
The respondent submitted that, as no reply had been received to their correspondence of 20 December 2016, they wrote to the complainant again, on 13 February 2017 inviting him into the pension scheme. It was further submitted by the respondent that this letter concluded as follows: “we would strongly advise you to save towards your retirement on 13 August 2018, especially considering the tax benefits that are available”. The respondent submitted that, in response to this letter, an application to join the pension scheme was received from the complainant dated 15 March 2017, following which the complainant was admitted to the pension scheme, with payroll deductions commencing in March 2017.
*45
According to the respondent’s submission, all of the pension documentation sent to the complainant to facilitate his joining the pension scheme clearly indicates that the scheme is aligned to the company retirement age and specifies a retirement age of 65. It was further submitted that the letter inviting him to join the scheme clearly indicated that his retirement would happen in August 2018.
The respondent submitted that, on 13 November 2017, the complainant provided a handwritten note to his manager, stating that he did not intend to retire in August 2018. The submission further states that the respondent replied to the complainant on 2 January 2018 acknowledging his request to work past his retirement age but refusing same on the grounds that there were no exceptional circumstances which would warrant making an exception to the retirement age which was in existence in order to protect the health and safety of aircraft refuellers.
The respondent submitted that formal written notice of the complainant’s retirement issued on 11 January 2018, with an invitation to attend a pre-retirement training course. It was submitted that, on 19 January 2018, the complainant appealed the decision to refuse his request to work past retirement. According to the respondent’s submission, the complainant’s grounds for appeal were that he was fit enough to work and had insufficient notice of the company’s retirement age. In addition, the complainant quoted comparators who had exceeded the retirement age and he also referenced his length of service and unblemished record.
According to the respondent’s submission, a written appeal outcome was issued to the complainant on 16 March 2018, advising that his appeal had been unsuccessful. It was submitted, by the respondent, that the complainant retired on 13 August 2018. It was further stated that he was offered a retired gathering presentation, both of which he declined.
Respondent’s substantive submission
Against the above background, the respondent set out their position in reply to the complainant’s claim, under the following headings.
1) Prima facie case of discrimination
According to the respondent’s submission, it has been the well-established practice of the Equality Tribunals and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited. The respondent stated that it would argue, in the strongest possible terms, that the complainant had failed to discharge this burden of proof because he had failed to provide objective evidence demonstrating he was treated differently and discriminated against on the basis of his age, in terms not sanctioned under the law in Ireland.
*46
In support of the submission in this regard, the respondent cited the following cases: Mitchell v Southern Health Board [2001] E.L.R. 201, Graham Anthony & Company Limited v Margetts Labour Court Determination EDA0-38, 7 August 2003 and Melbury Developments v Valpeters [2010] E.L.R. 64.
In conclusion on this point, the respondent submitted that, notwithstanding that the particular circumstances in each of the above referenced cases are different, it is clear that it is only when the complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the respondent to rebut the inference of the discrimination raised.
2) Relevant legislation
Notwithstanding their view that the complainant had failed to discharge the burden of proof by establishing a prima facie case of discrimination, the respondent proceeded to make submission in relation to the claim as submitted. In this regard, the respondent made reference to ss.6(1) and (2) of the Employment Equality Acts 1998-2015.
The respondent also submitted that “direct discrimination” is defined as occurring when one person is treated less favourably than another is, has been or would be treated and that person is of a different age than another person. It is further submitted that direct discrimination consists of two elements: the first being the less favourable treatment of the individual making the complaint and the second being the existence of age grounds for that treatment. It was further submitted by the respondent that both elements must be satisfied for the claim of discrimination to succeed.
In addition, the respondent referred to the general framework for equal treatment in employment and occupation, as set out in the Council Directive 2000/78. The respondent submitted that the Directive recognises the differences in treatment in connection with age may be justified by member states under certain circumstances. In particular, the respondent referred to art.6(1) of the Directive which provides that discriminatory treatment directly based on age is permissible subject to objective and reasonable justification, where the means of achieving these aims are appropriate and necessary.
Following on, the respondent referred to s.34(4) of the Employment Equality Acts, which states that the fixing of different ages for retirement shall not constitute discrimination 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 respondent submitted that they have met these tests with regard to the complainant in relation to his retirement. In support of this contention, the respondent submitted that s.34(4) of the Acts is clear and unambiguous and, as provided for under that section, they have fixed a mandatory retirement age for all employees in the same category as the complainant, which is objectively *47 justified by the respondent’s need to have age diversity in the workplace and to provide inter-generational fairness, succession planning and to protect the health and safety of aircraft refuellers.
In support of their submission in this regard, the respondent referred to the authorities provided through a number of Court of Justice of the European Union (CJEU) judgments and those of other higher courts on the matter of retirement ages as it relates to various national social policies.
In conclusion on this aspect of the submission, the respondent stated that their compulsory retirement age of 65 years is permitted by both s.34(4) and s.37(2) of the Employment Equality Acts.
3) Normal retirement age in the respondent company
In response to the complainant’s contention that there was no established normal retirement age for permanent refuellers, the respondent accepted that there was no express contractual term providing for a retirement age. However, the respondent submitted that there is an implied and well-established term that the contractual retirement age is 65.
In support of this contention, the respondent stated that it has an occupational pension scheme in place which specifically provides for a normal retirement age of 65 years of age. It was further submitted that the complainant was entitled to join the scheme from the start of his employment and was provided with information in that regard at intervals throughout his employment before he eventually joined the scheme in March 2017.
In addition, the respondent submitted that the normal retirement age being 65 would have been communicated to the complainant in all of the pension scheme documentation provided to him and included in specific pieces of correspondence which were sent to him in 2016 and 2017. The respondent further submitted that the complainant did not refute or question the existence of the normal retirement age of 65 either when receiving the information/correspondence or prior to joining the scheme in March 2017.
According to the respondent’s submission, apart from the alignment of the retirement age and the pension age which is well known, it is irrefutable that the retirement of staff is exceptionally important in the respondent company because of the impact it has on their employment status and earnings, and is discussed widely with retirements keenly anticipated because of that positive impact on the remaining staff.
In support of their submission in this regard, the respondent provided detailed evidence with regard to employee retirements over the last decade. This evidence demonstrated that 10 employees retired at the normal retirement age of 65 years, while another retired a few weeks short of his 65th birthday. The respondent submitted that, as a result, it does not accept that the complainant did not know the retirement age was 65, given that some of his colleagues had already retired *48 at that age. The respondent further submitted that it is not believable that the complainant was unaware of the existence of a retirement age of 65.
The respondent also provided a detailed response with regards to the three comparators the complainant presented as evidence of colleagues working beyond the age of 65 with the respondent. The evidence presented by the respondent shows that all three comparators, two of whom are not directly comparable with the complainant, in that they were not refuellers, retired at or before the normal retirement age of 65.
The respondent further submitted in this regard that while two of the comparators may have worked subsequently for the respondent, this was in very specific situations covered either by fixed-term contracts or contracts for service. The respondent provided evidence that two of the comparators drew their pension benefits at age 65 and 64, respectively. With regard to the third comparator, the complainant submitted that he was offered two fixed-term contracts, to provide relief work as a refueller, after retiring from his position as crew chief on his 65th birthday, with the result that he did not commence drawing his pension benefits until age 67. However, the complainant submitted that this took place almost 10 years prior to the complainant’s retirement.
According to the respondent’s submission, the complainant could not have had any legitimate expectation and could not have expected, by any objective standards, to work beyond his date of retirement, i.e. 65 years of age.
With regard to the matter of whether the retirement age must be contained within a written contract, the respondent referenced the following cases: Molloy v Connacht Gold EAT Decision UD891/2009, Sweeny v Aer Lingus Teoranta [2013] E.L.R. 162 and Doyle v ESB [2013] E.L.R. 34. The respondent submitted that these cases demonstrate that the respective tribunals accepted the custom and practice of compulsorily retiring employees, notwithstanding the absence of any written policy in this regard.
In relation to the matter of whether any exceptions made to a compulsory retirement age imperils the standing of future retirements, the respondent submitted that this has been considered by the CJEU, whose decisions are reflected by the EAT, in the following cases: Fuchs v Land Hessen [2011] I.R.L.R. 1043, Georgiev v Technicheski Universitet Sofia, Joined Cases C-250/09 and C-258/09 [2010] E.C.R. I-11869 and MacPoppins v G4s Secure Solutions (Ire) Limited UD 2200/2009, 28 October 2011. The respondent submitted that the conclusion arising from the aforementioned cases was that allowing some employees work past the age of 65 did not prevent later enforcement of the normal retirement age.
4) Objective justification of the normal retirement age in the respondent company
The respondent submitted that they operate a well-established practice of compulsorily retiring employees when they reach the age of 65. In this respect, the *49 respondent submitted that the retirement of employees at age 65 was objectively necessary and reasonably required or justified.
In support of their contention in this regard, the respondent referred to the following as the objectively justified grounds for applying a normal retirement age of 65:
a) Inter-generational fairness
The respondent submitted that they recruit temporary staff in order to provide the flexibility required by the changing operational requirements of the business. It was further submitted that this flexibility is essential to ensure financial survival of the operation.
It was further submitted that the established retirement age also provides opportunities for younger people, with the majority of progression into relief rolls in the last 10 years having resulted from retirements.
b) Succession planning
Under this heading, the respondent submitted that there are a number of supervisory positions (crew chief) that are essential to its operation and for which it would be very difficult to recruit from external sources because of the necessity to have specific aircraft refuelling experience. It was further submitted that these crew chief positions offer refuellers an opportunity to progress into supervisory roles and increase their earning potential, thus making it essential to have an established retirement age especially considering the fact that the only turnover of staff comes from retirements. The respondent stated, in this regard, that there have never been voluntary resignations during the complainant’s employment.
In further submission, the respondent stated that relief workers are not guaranteed regular hours and often act in a relief capacity for long periods of time waiting to occupy permanent roles with guaranteed hours. The respondent submitted that, considering the absence of other staff turnover, employee progression can only be achieved through the application of a normal retirement age.
According to the respondent, they are required to retain a grade of relief staff who work variable hours as a consequence of volume volatility. It was further submitted that this is the recruitment route for all refuelling staff, and these release staff can only progress to guaranteed hours on the vacating of positions. According to the respondent, the complainant would not have been in a position to avail of such opportunities had the respondent not operated a normal and established retirement age.
The respondent submitted that their actions in this regard do not breach s.34(4) of the Equality Acts and in support of this position, cited a number of relevant cases including: Donnellan v Minister for Justice, Equality and Law Reform [2008] IEHC 467, Félix Palacious de la Villa v Cortefiel Servicios SA *50 Case C-411/05 [2007] E.C.R. I-8531; [2008] 1 C.M.L.R. 16; [2008] All E.R.(EC) 249; [2007] I.R.L.R. 989, Rosenbladt v Oellerking Gebaudereinigungsgesllschaft mBH [2011] 1 C.M.L.R. 32; [2012] All E.R.(EC) 288; [2011] I.R.L.R. 51 and Doyle v ESB [2013] E.L.R. 34.
c) To protect the health and safety of aircraft refuellers
The respondent submitted that there are significant hazards to the health and safety of aircraft refuellers, namely heavy physical workloads, shift work and noisy environments, which have a greater impact on older workers, which reasonably and justifiably require a retirement age of 65. It was further submitted, in this regard, that health and safety concerns are, and always have been, the primary focus of management in considering the risk to staff and members of the public arising from the work. It is further submitted that these concerns form the basis of the determination of the retirement age.
In support of their contention in this regard, the respondent stated that they conducted an extensive review of the refueller’s role in 2016. The respondent further stated that this review took account of research and information on the hazards and risks associated with the refuelling of aircraft. According to the respondent’s submission, the aforementioned evidence and the nature of the duties which the refuellers and crew chiefs are required to perform a regular basis, make the operation of a retirement age of 65 objectively and reasonably justified.
According to the respondent’s submission, the outcome of this review clearly emphasised the appropriateness of the established retirement age for refuellers. Consequently, the respondent submitted that a position of a high physical capacity is a genuine and determining occupational requirement for the role within the meaning of s.37(2) of the Acts.
d) Dignity in the workplace
The final factor referred to by the respondent under this heading, is that of dignity in the workplace. It was submitted that this is necessary for the protection of the dignity of employees against future performance management and the avoidance of difficulty and stressful HR processes.
In this regard, the respondent referred to the already referenced CJEU case of Rosenbladt v Oellerking Gebaudereinigungsgesllschaft mBH [2011] 1 C.M.L.R. 32, where the court found that the automatic termination of employment contracts also has the advantage of not requiring employers to dismiss employees on the ground that they are no longer capable of working, which may be humiliating for those who have reached an advanced age.
Conclusion
In conclusion, the respondent submitted that the burden of proof rests with the complainant to show that he was discriminated against on the grounds of age. In *51 this regard, the respondent reiterated that the complainant had failed to discharge this burden of proof by failing to provide objective evidence demonstrating that he was treated differently and discriminated against on the basis of his age.
However, without prejudice to their aforementioned view, the respondent submitted that the complainant was retired in line with its normal retirement age, which was lawful within the provisions of the Acts. The respondent further submitted that the compulsory retirement age of 65 as applied within the respondent organisation is permitted by both ss.34(4) and 37(2) of the said Acts.
The respondent further submitted that they demonstrated, by way of the 2016 review of the refueller role, that owing to the particular occupational activity the complainant was engaged in carrying a high physical capacity, it is a genuine and determining occupational requirement for the role. It was further submitted that the necessity for inter-generational fairness and succession planning is clearly established by the need for retirement to allow relief staff to progress into permanent terms and conditions.
In the light of the foregoing, the respondent submitted that the termination of the complainant’s employment by means of retirement at age 65 does not constitute a breach of the Act and, therefore, his claim in this regard should fail.
Findings and conclusions
Section 85A(1) of the Employment Equality Acts 1998-2015 states: “Where in any proceedings facts are established by or on behalf of a claimant 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 means that the complainant is required to establish, in the first instance, primary facts upon which the claim of discrimination is grounded and from which it may be presumed that there has been discrimination. If he succeeds in doing so, then, and only then, the burden of proof passes to the respondent to prove the contrary.
Based on the above, when evaluating the evidence in this case, I must first consider whether the complainant has established a prima facie case pursuant to s.85A(1) of the Employment Equality Acts 1998-2015.
The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. The inference of discrimination must have a factual/credible basis and cannot be based on mere speculation or assertions which are unsupported by evidence.
The Labour Court elaborated on the interpretation of s.85A(1) in Melbury Developments v Valpeters [2010] E.L.R. 64 where it stated that this section “places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that *52 evidential rule”.
Having carefully considered all of the evidence adduced, I find that the complainant has sufficiently established a prima facie case that an act of discrimination took place in relation to the termination of his employment with the respondent by means of compulsory retirement at 65. Therefore, the burden of proof switches to the respondent to refute the complainant’s complaint in this regard.
The respondent’s rebuttal of the complainant’s claim of discrimination on the age ground rests on two specific premises. Firstly, the respondent contends that a “normal retirement age” of 65 had been established and applied to the complainant. Secondly, the respondent contends that the established retirement age of 65 is based on clear, objective grounds, which meet the requirements of s.34(4) of the Employment Equality Acts.
With regard to the first premise, i.e. that they had established a normal retirement age of 65, the respondent refuted the complainant’s contention that he was unaware that such a requirement existed. Having carefully reviewed all of the evidence adduced, I am satisfied that there is no explicit contractual arrangement between the respondent and the complainant with regard to an established retirement date.
While the respondent accepts that no explicit contractual arrangement exists, they contend that there is an implied retirement age of 65 and that this is a well-established term. In support of their position in this regard, the respondent places significant reliance on the fact that the occupational pension scheme provides for a retirement age of 65 years.
The evidence shows that the complainant was, on a number of occasions, provided with explanatory booklets and investment guides in relation to the pension scheme. These documents, some of which ran to almost 30 pages, contained a myriad of information in relation to all aspects of the pension scheme. Given the technical nature of some of this information, I consider it to be unreasonable of the respondent to suggest that the complainant should have gleaned from these documents that a mandatory retirement age of 65 was in existence and that this would require him to retire on his 65th birthday, i.e. 13 August 2018.
Having reviewed the documentation in question I note, inter alia, the following references to retirement date:
“When can I retire? In normal circumstances you will retire on your 65th birthday. This is your ‘normal retirement date’”
“With the company’s consent, you may also be allowed to defer your retirement beyond your normal retirement date”
*53
“Normal retirement date means your 65th birthday or such other date as the company may specify and notify to you”
In the light of the information set out above and the circumstances/context in which it was provided to the complainant, I find it unreasonable that the respondent will contend that the complainant was, as a result, fully informed of the existence of an established mandatory retirement date and that this specifically applied to him.
In addition, I note that there were a number of opportunities, arising out of negotiations between the respondent and the recognised trade union on behalf of the employees and the issuing of revised statements of terms and conditions in 2012, when the respondent could have formally included the provision in relation to normal retirement date, however, this was not done.
In the case of Earagail Eisc Teoranta v Lett Labour Court Determination EDA 1513, 31 July 2015, the Labour Court expressed the following view:
“As a matter of general principle, a termination of employment the way of retirement should be distinguished from a dismissal on grounds of age. A retirement occurs where the employment comes to an end pursuant to a condition of employment which limits an employee’s tenure to the point at which they attain a specific age.”
In my view, the above view from the court clearly distinguishes between an established retirement date, be that expressly stated or by implication, and another date on which an employer may move to terminate the contract of employment of an employee.
Having carefully reviewed all of the evidence adduced and in a context where no express term existed in the complainant’s contract of employment requiring him to retire at an appropriately established retirement date, I can only conclude that the complainant had no clear, actual knowledge as to the existence of such a date.
Section 34(4) of the Employment Equality Acts 1998 – 2015, states as follows:
“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.”
In the Earagail Eisc Teoranta case, the Court found that: “an employer’s employment policy in relation to retirement can take effect as a contractual condition of employment which is, prima facie, protected by s.34(4) of the Acts. However, in the Court’s view that could only arise where the policy is promulgated in such a manner that the employees to whom it applies either *54 knew, or ought to have known, of its existence.”
Based on the above, I am satisfied that the respondent, in the within case, cannot, in the circumstances that pertain, avail of the protections of s.34(4) of the Acts.
Consequently, taking all of the above into consideration, I am satisfied that the complainant was dismissed because of his age and that his claim of discrimination on the grounds of age is well-founded.
Decision
Section 79 of the Employment Equality Acts 1998-2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under s.82 of the Act.
Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find the complainant’s complaint is well-founded and I make an award of €5,000 in his favour for the respondent’s breach of s.8(1) of the Employment Equality Acts 1998-2015.
The above award represents compensation for infringement of the complainant’s rights under equality legislation in relation to discrimination on the ground of age. It does not include any element relating to remuneration.
Doyle v ESB International Ltd.
DEC-E/2012/086
Equality Tribunal
27 June 2012
[2013] 24 E.L.R. 34
1. Dispute and delegation
1.1. This dispute concerns a claim by Mr Paul Doyle (hereafter “the complainant” ) that he was subjected to discriminatory treatment in relation to a compulsory retirement age in ESBI (hereafter “the respondent” ) on the grounds of his age. The complainant was compulsorily retired on February 22, 2008 two weeks after his 65th birthday.
1.2. The complainant referred a claim of discrimination to the Director of the Equality Tribunal on June 11, 2008 under the Employment Equality Acts. On December 6, 2011, in accordance with his powers under s.75 of the Acts, the Director then delegated the case to Tara Coogan – an Equality Officer – for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. As required by s.79(1) and as part of my investigation, I proceeded to hearing on January 27, 2012. Final materials relevant to the investigation were received by me on February 18, 2012.
*37
2. Case for the complainant
2.1. The complainant is a graphic designer. He worked with the respondent from 1995 to 2008. The complainant, having reached the age of 65, was retired from his role. Shortly before his birthday, on January 23, 2008, an email from a facilities manager was circulated to the complainant’s colleagues announcing his retirement and inviting them to drinks to mark his departure.
2.2. The complainant subsequently wrote to the respondent’s HR manager stating his belief that the provisions of his contract did not require for him to retire on his 65th birthday. In reply, the complainant was informed that he must retire at the age of 65. He was also informed that in order for the complainant to engage in a contract work with the respondent after reaching 65 years of age a “break of employment would be required post-retirement” .
2.3. It is the complainant’s case that he was forced to retire and dismissed at the age of 65 in breach of both the Employment Equality Acts 1998–2008 and the provisions of Council Directive 2004/78 of November 2000 establishing a general framework for equal treatment in employment and occupation.
2.4. It is the complainant’s case that he was compulsorily retired on the ground of his age. It was submitted that this constitutes direct discrimination and is contrary to the Acts. The entire reason for the retirement was the complainant’s age. The complainant relied on McCarthy v Calor Teoranta, Labour Court Determination EDA089, April 11, 2008 in which the Labour Court stated that:
“The Court of Justice appears to have held that a Member State cannot introduce a mandatory retirement age unless there is objective and reasonable justification in so doing. It would appear axiomatic that an individual employer would be similarly circumscribed in applying a contractual retirement age.”
2.5. There is no contractual retirement age in the complainant’s contract of employment. Ireland does not have a mandatory age for retirement in its national legislation. Therefore, the respondent is in breach of the Community law of non-discrimination on the ground of age. It was submitted that the derogation in the Directive from the right to non-discrimination is directed at Member States as opposed to individuals. It was submitted that in the absence of a written retirement policy, it was impossible for such a policy to be properly policed by the Equality Tribunal. The complainant submitted that none of the documents provided by the respondent to the investigation is evidence of a written retirement policy having been generated by the respondent. Therefore, it is impossible for the Tribunal to satisfy itself that the respondent’s retirement policy pursues the aims asserted by the respondent and whether the means adopted to pursue such aims are appropriate and necessary.
2.6. In accordance with s.6(1) of the above Acts, the complainant has clearly suffered less favourable treatment than those of a younger age by being forced to retire at the age of 65.
*38
2.7. The complainant refuted that the respondent had fixed a retirement age in accordance with s.34(4). Instead the respondent is seeking to rely upon the claimant’s right to a pension at 65 under the terms of a pension scheme of which he is member. It was submitted that it is well established in both Community and Irish law that a pension entitlement does not necessitate retirement.
2.8. It was submitted that the decision in Mangold v Rüdiger Helm Case 144/04 [2005] E.C.R. I-9981 held non-discrimination on the ground of age to be a general principle of Community law. That is, non-discrimination is mandated by the Treaties. Therefore there can be no doubt as to the principle having direct horizontal effect as between private actors. At para.77 of its judgment, the Court stated:
“it is the responsibility of the national court, hearing a dispute involving the principle of non-discrimination in respect of age, to provide, in a case within its jurisdiction, the legal protection which individuals derive from the rules of the community law and to ensure that those rules are fully effective, setting aside any provision of national law which may conflict with that law (see, to that effect, Amministrazione delle Finanze dello Stato v Simmenthal Case 106/77 [1978] E.C.R. 629, para.21, and Solred SA v Administración General del Estado Case C-347/96 [1998] E.C.R. I-937, para.30).”
2.9. It was submitted that it is therefore necessary for this Tribunal to ensure individual compliance with the principle and with the Directive.
2.10. The derogation within the Directive is directed only at national measures with legitimate aims. In Felix Palacious de La Villa v Cortefiel Servicios SA Case 411/05 [2007] E.C.R. I-8531, the then European Court of Justice held that a state could set a mandatory retirement age of 65 as it had the legitimate aim as part of national employment policy to promote employment for under 65s. The mandatory retirement age was used to absorb high unemployment and to promote better distribution of work between generations. The measure was found to be less favourable treatment but was objectively and reasonably justified in the context of national law by a legitimate aim relating to employee policy and the labour market. It was submitted that the less favourable treatment that the complainant has experienced cannot be justified as there is no national legislation in place to facilitate it. The justification provided for in the directive is clearly not directed at the respondent. In the recent opinion of Advocate General Mazak in Incorporated Trustees of the National Council on Ageing (Age Concern) v Secretary of State for Business, Enterprise and Regulatory Reform Case-C388/07 [2009] E.C.R. I-1569:
“targets national measures, which reflect social and employment policy choices and not individual decisions of employers”
*39
3. Case for the respondent
3.1. The respondent is a wholly owned subsidiary of Ireland’s Electricity Supply Board (ESB), a vertically integrated utility that has a number of ring fenced divisions operating independently in the single electricity market. The respondent employs over 1200 staff across four distinct businesses.
3.2. The respondent rejects the validity of the complainant’s case for the following reasons:
1. It is clear that the respondent has fixed its retirement age. Such a policy has operated since its inception and that the retirement age of 65 is a clear term and condition of the contract of employment of employees and a long-standing custom and practise of the respondent. It was submitted that the complainant by his own actions has demonstrated that he knew of the retirement age of 65. The respondent wishes to rely on McCarthy v HSE [2010] IEHC 75; [2010] E.L.R. 165 that held that an employer can establish that there is a fixed retirement age by reference to custom and practice and to a company pension scheme even in circumstances where a pension age is not set out in a contract of employment. Hedigan J. went on to state that Council Directive 2000/78 did not prohibit the State from maintaining a retirement age of 65. A similar conclusion was reached by the EAT in Molloy v Connacht Gold UD891/2009.
2. The complainant had requested the right to remain with the respondent for an additional year. The request was referred to human resources but as there were no exceptional circumstances no offer of a fixed-term contract could be made. The complainant was therefore treated in the same manner as any other person seeking to stay on beyond the retirement age.
3. The respondent has never represented to the complainant that he could work past 65 or offered any inducements or warranties to that effect.
4. The respondent operates an award-winning pension scheme that allows employees to retire between the ages of 50 and 65. The retirement age is included in the pension scheme of which the complainant is a member.
3.3. As the Employment Equality Acts do not provide for a definition for “fix” the word must be given its ordinary meaning. The exception in the Acts must therefore be interpreted as applying to arrangements, agreements or decisions on retirement ages. There is no requirement that the arrangement be in writing. It can only be interpreted as meaning that the age must be clearly arranged, agreed or decided upon.
3.4. It was further submitted that while s.34(4) does not require the respondent to show that the fixing of the retirement age is objectively justified, the respondent’s reason for fixing a retirement age are justifiable in national and European law. The respondent submitted that it must be able to provide for promotion opportunities and career pathways in order to retain younger employees. It was submitted that the respondent allocates extensive resources *40 (approximately €45,000 ) in training its employees. The respondent’s employees are therefore well-trained and very mobile and if these employees cannot progress within the respondent’s employ they will go elsewhere. Staff retention is therefore a crucial consideration for the viability of the respondent business. Failure to hold to its most valuable resource would deprive the respondent of a valuable skill set and the loss of money spent on training. Such a notion of sharing employment between generations has been found to be objectively justifiable by the Court of Justice (see Rosenbladt v Oellerking GmbH Case C-45/09 [2011] C.M.L.R. 1011 and Georgiev v Technicheski Universitet Sofia Joined cases C-250/09 and C-268/09 [2010] E.C.R. I-11869).
3.6. Furthermore it was submitted that the majority of the respondent’s staff deal with electricity. It was submitted that increasing the retirement age would necessitate – for health and safety reasons – physical examinations that might cause embarrassment and humiliation to employers. The fixed retirement age has the advantage of not requiring the respondent on dismissing employees on the grounds that they are no longer capable of working.
3.7. It was submitted that this Tribunal does not have jurisdiction to set aside a provision of a statute as has been requested by the complainant. The respondent relied on Minister for Justice, Equality and Law Reform v Director of the Equality Tribunal to this effect [2009] IEHC 72; [2009] E.L.R. 116.
4. Conclusion of the Equality Officer
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to s.85A of the Employment Equality Acts 1998 to 2008. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. The Labour Court elaborated on the interpretation of s.85A in Melbury v Valpeters Labour Court Determination EDA0917, September 16, 2009 where it stated that s.85A: “places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule” .
4.2. It is clear that a decision to retire a person at a given is age is a decision that is influenced by that person’s age. A number of Court of Justice decisions have identified such decisions as direct discrimination. Such discrimination however can be rebutted by objectively justifying such treatment and the Court of Justice has provided a non-exhaustive list of such justifications. It is clear that direct discrimination is also prohibited under the Acts. However, I find that s.34(4) provides for an exemption in circumstances where retirement on the ground of a person’s age is “fixed” .
4.3. Extensive submissions and arguments where put before this Tribunal as to what its jurisdiction is in relation to the interpretation of EU law and whether it is *41 entitled to make decisions concerning European jurisprudence and applicability to Irish law. It was suggested that the case be adjourned to determine whether the Tribunal had jurisdiction to proceed with the complex facts before it. The complainant objected to such an approach on the grounds that the complaint had been with this Tribunal for over three years and that the complainant wished to proceed with this claim without further delay. The complainant was not challenging the provisions of the Employment Equality Acts.
4.4. In relation to my jurisdiction. It is clear that this Tribunal is the court of first instance in matters relating to discrimination in the workplace. I find that this Tribunal must work on a presumption that the legislation governing it has correctly and properly implemented the Council Directives that it purports to give effect to. It is clear that this Tribunal has no jurisdiction to consider whether correct implementation has occurred in the member state. Nor does it have jurisdiction to set aside a provision that is contained in a statute. That said, I am satisfied that I do have an obligation to interpret these Acts in a manner that is harmonious “in the light of” directives in so far as such an approach does not lead to absurdity or to a interpretation that is contra legem. Approval of such an approach was confirmed by the Supreme Court in Nathan v Bailey Gibson Ltd [1998] 2 I.R. 162.
4.5. I find that much of the national case law cited to for the purposes of this investigation turn on their facts. I note that successful cases for the complainants have included circumstances where a respondent has not been able to establish a retirement age whereas I note that the ability to prove facts supporting a custom and practice have not resulted in a finding of unfair dismissal. Other cases have included an employee’s legitimate expectation arising from a contractual situation. None of these cases have considered s.34(4) of the above Acts. Equally, no consideration has been given to Council Directives.
4.6. In McCarthy v Calor Teoranta, the Labour Court went on to hold that the complainant in that case was given a warranty by the respondent that if he took the option of redundancy and re-employment at lower pay he could work until the age of 65. Accordingly, when the respondent terminated the complainant’s employment, it did so on the basis of his age and thus treated him differently than a person in a comparable situation who had not attained the age of 60. I find that facts of the current case are clearly distinguishable from those set out in McCarthy. The Labour Court did, however, make an observation that other facts may have supported a case that may have highlighted an incompatibility between s.34(4) of the Acts and the proper transposition of Article 6 of the Directive. While the Court did not elaborate what such an incompatibility in its view may be it, it is clear that the Labour Court was speculating that a reliance on a fixed retirement age, based on contract, may not be compatible with test set out in the Council Directive.
4.7. Retirement ages have also been considered by the High Court. It is clear *42 that McKechnie J. in Donnellan v Minister for Justice, Equality and Law Reform [2008] IEHC 467; unreported, High Court, July 25, 2008 carefully examined the facts of that case in relation to the Council Directive only. In doing so, he adopted the objective justification test. In McCarthy v HSE, Hedigan J. in an obiter comment suggested that there is nothing in the Council Directive prohibiting the State from maintaining a retirement age of 65 and was satisfied that such a matter could be determined on implied contract term. Citing Palacios de la Villa the learned judge found that a retirement age of 65, resulting in retirement (that is a situation where a person is in receipt of a pension), could not be discriminatory. Neither case considered s.34(4) of the above Acts or the question whether the Directive has been properly transposed into national law. It is clear that the learned judge in Donnellan accepted that the objective justification test was required when the plaintiff was asserting his rights under the Directive.
4.8. It is clear that I have no function to make a legally binding decision as to a party’s retirement age as per contract per se. In order to address the issue of s.34(4) I must make a finding of fact in relation to the complainant’s retirement age. In this case, it a common fact that the respondent has a maximum retirement age of 65 and that the complainant was on notice of this retirement age. While it was argued that the term “fixed” in s.34(4) ought to be given its ordinary meaning, that being arranged or agreed upon, I am not satisfied that a reliance on an arranged or agreed upon retirement age based on contract terms alone is sufficient to rebut the inference of age discrimination. A harmonious interpretation of s.34(4) in conjunction with Art.6(1) implies that for a retirement age to be “fixed” by a respondent, evidence of a planned and systematic approach to retirement ages is required. Such evidence is set out in the objective justification test.
4.9. I note that it was argued by the complainant that any reliance on Art.6(1) was only available for state bodies. I find that the Employment Equality Acts clearly extends the principle of the derogation to private actors also.
4.10. I note that the Court of Justice in R. (Incorporated Trustees of the National Council on Ageing (Age Concern England)) v Secretary of State for Business, Enterprise and Regulatory Reform [2009] I.R.L.R. 373 stated at para.3:
“Article 6(1) of Directive 2000/78 establishing a general framework for equal treatment in employment and occupation gives Member States the option to provide, within the context of national law, for certain kinds of differences in treatment on grounds of age if they are ‘objectively and reasonably’ justified by a legitimate aim, such as employment policy, or labour market or vocational training objectives, and if the means of achieving that aim are appropriate and necessary”.
I am therefore satisfied that any exemption allowing for direct discrimination on the grounds of age must be objectively and reasonably justified by a legitimate aim and that the means of achieving such an aim must be appropriate and necessary. *43 In order to give s.34(4) a harmonious interpretation, it is clear that “fixed” must be understood in a manner that supports the objective justification test set out in Article 6(1). It is clear that such a justification test cannot be directed at the circumstances of the individual complainant – the respondent was not relying on the personal characteristics or any poor performance of the complainant – but must be based on comprehensive policy grounds.
4.11. I note that the respondent does not have a written employment policy per se. I am however satisfied on the full facts of this case that the respondent has a well-established practice of compulsorily retiring its employees to a pension when they reach the age of 65 (employees can also elect to retire earlier). There was no evidence to support that this practice has been varied in any circumstances. It is clear that the respondent will, in certain exceptional circumstances, re-engage over 65s on fixed-term contracts for project purposes. I am satisfied that the respondent had considered the availability of such an extension for the complainant on his request. The request was turned down because there were no exceptional circumstances that would have justified such an extension. I find that the fact that the respondent has a policy that enables over 65s to remain in certain circumstances clearly tempers the existence of an absolute retirement age.
4.12. I am also satisfied that the respondent has carefully considered the reasons as to why the retirement age is capped at 65 and that there is a clear employment policy supporting such a cap. The logic for such an exemption in my view is that age is different from other protected grounds. Age is not binary in the sense that a person is a man or a woman, a Traveller or a non-Traveller, a heterosexual or a homosexual, etc. Every person has an age, which as a continuum, changes over time. A young person in the respondent organisation will eventually benefit from the protections that an older person has enjoyed and, in turn, an older person will already have benefitted from a provision that has favoured young people.
4.13. I note that the respondent’s main aim is to build and maintain electricity infrastructures domestically and internationally. I accept that work involving electricity is of such nature that legitimate health and safety concerns relating to a genuine occupational requirement with older staff may arise. I also accept that the carrying out of compulsory medical examinations could cause embarrassment to some employees. While I do note that such “genuine occupational requirement” does not apply to the complainant whose occupation was that of a graphic designer I do find that a legitimate employment policy means that a respondent is entitled to maintain a retirement age that ensures cohesion among all of its employees. Having different rules of retirement for different employees may threaten the respondent employees’ cohesion and open up other areas of discrimination that may not be subject to an objective justification test. Furthermore, the size of the respondent organisation also means that carrying out individual assessments may be impractical and I find that a use of an age-proxy (65) in the circumstances of *44 this case is a proportional tool.
4.14. Furthermore, I am satisfied that the respondent spends extensive resources and time in training its new employees. I am satisfied that in order to achieve this aim the respondent must ensure that it can offer career pathways to such employees and ensure vacancies for upward post become available. This is a necessity to ensure retention, motivation and dynamism among the respondent staff. I am satisfied that the respondent wishes to establish an age structure among its younger and older employees in order to encourage the recruitment and promotion of young people and to facilitate good personnel management. I am therefore satisfied that the respondent has an established a legitimate employment policy with a legitimate aim for the reason why, at the latest, employees with the respondent must retire at 65 years of age.
4.15. I find that in the full circumstances of this case that 65 is an appropriate and proportionate measure for the purposes of the legitimate aim of the respondent.
5. Decision
5.1. Having investigated the above complaint, I hereby make the following decision in accordance with s.79(6) of the Employment Equality Acts.
5.2. I find that the complainant has established a prima facie case of discriminatory treatment on the age ground. The respondent has successfully rebutted this inference. Therefore, the complaint fails.
Horgan and Keegan v Minister for Education & Skills and Others.
Request for a preliminary ruling from the Labour Court (Ireland).
THE COURT (Second Chamber),
composed of A. Arabadjiev (Rapporteur), President of the Chamber, E. Levits, M. Berger, C. Vajda and P.G. Xuereb, Judges,
Advocate General: Y. Bot,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
–
Mr Horgan and Ms Keegan, by A.M. Lyne, solicitor,
–
the Minister for Education & Skills, the Minister for Finance, the Minister for Public Expenditure & Reform, Ireland and the Attorney General, by M. Browne, L. Williams and A. Joyce, acting as Agents,
–
the European Commission, by J. Tomkin and D. Martin, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1
This request for a preliminary ruling concerns the interpretation of Article 2(2)(b) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).
2
The request has been made in proceedings between, on the one hand, Tomás Horgan and Claire Keegan and, on the other, the Minister for Education & Skills (Ireland), the Minister for Finance (Ireland), the Minister for Public Expenditure & Reform (Ireland), Ireland, and the Attorney General (Ireland) concerning the lawfulness of a national measure applicable since 1 January 2011 to newly recruited public servants, including teachers in national schools, which provides for a salary scale and classification on that salary scale upon recruitment which are less advantageous than that applicable to teachers already employed as such.
Legal context
European Union law
3
Article 1 of Directive 2000/78 provides:
‘The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.’
4
Article 2 of that directive provides as follows:
‘1. For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.
2. For the purposes of paragraph 1:
…
(b)
indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:
(i)
that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, …
…’
Irish law
5
Circular 0040/2011, entitled ‘New Pay Scales for New Appointees to Teaching in 2011’, provides as follows, in points 1 to 4 thereof:
‘Introduction
1.
The Minister for Education and Skills wishes to inform vocational education committees, management bodies and teachers of the application of revised rates of salary and allowances for new appointees to teaching from 1 January 2011 onwards.
2.
As part of Budget 2011 the Government has applied a 10% reduction in the pay of new entrants to the public service (referred to in this Circular as “new appointees”) and all new appointees to the entry grades of the public service must start at the first point of the relevant pay scale with effect from 1 January 2011.
Application of new pay rates
3.
The 10% reduction in pay applies to basic pay, allowances and the supervision and substitution payment.
(a)
Basic Pay
The 10% reduction applies to basic pay on all points of the incremental salary scale. Daily and hourly rates for casual and non-casual teachers in the primary sector and hourly rates for casual and non-casual part-time teachers in the post-primary sector have also been reduced. The revised rates are set out in an Appendix to this Circular …
(b)
Allowances
The 10% reduction also applies to all allowances with the exception of promotional allowances; i.e. special duties, assistant principal, deputy principal and principal allowances.
New Appointee to teaching
4.
The new pay rates apply to all teachers who are new appointees appointed on or after 1 January 2011.
…’
The dispute in the main proceedings and the questions referred for a preliminary ruling
6
In 2011, Mr Horgan and Ms Keegan qualified as school teachers. As of that autumn, they commenced employment as teachers in an Irish State primary school.
7
The new salary scales for newly recruited teachers, contained in Circular 0040/2011, reduce, as of 1 January 2011, the salaries by 10% at each point of the salary scale in relation to the salaries of public servants recruited before that date.
8
In addition, under that Circular, all newly recruited teachers were classified at the first point of the applicable salary scale, in contrast to previous practice consisting in classifying new teachers at the second or third point of that scale.
9
Those measures were adopted in order to meet the need to achieve a medium-term structural reduction in the cost of the public service at a time of significant budgetary restraints, and to correct a significant deficit in the public finances.
10
Mr Horgan and Ms Keegan challenged those measures before the Equality Tribunal (Ireland), claiming a difference in treatment on grounds of age. Since that court dismissed their action, Mr Horgan and Ms Keegan appealed before the referring court.
11
The latter court states that the measures at issue in the main proceedings have resulted in the coexistence of two groups of workers engaged in work of equal value but who are remunerated differently, there being a clear difference in age between those two categories.
12
Approximately 70% of teachers who commenced employment in 2011 were 25 years of age or under. Thus, at the time of their recruitment, the teachers who commenced employment in that year, including Mr Horgan and Ms Keegan, are generally younger than teachers recruited before that year, the latter group being considered to be the better remunerated group of persons.
13
The referring court however observes that the factor determining which salary scale teachers are placed on is the year in which they commenced employment and that all teachers recruited after 1 January 2011, irrespective of their age at the date of recruitment, were placed on the less advantageous salary scale. Conversely, all teachers recruited before that year were placed on the old salary scale, and remained on that scale, regardless of their age at the date of recruitment. Thus, the date of recruitment is at first sight a neutral criterion from the age perspective.
14
The referring court also notes that the parties to the main proceedings do not dispute that the age profile of teachers recruited after 1 January 2011 is no different to that of teachers recruited before that date, irrespective of the year of recruitment. That court therefore raises the issue of whether there has been any indirect discrimination on grounds of age, as claimed by Mr Horgan and Ms Keegan.
15
As regards the justification for any indirect discrimination, the referring court observes that two justifications have been put forward, namely, first, the need for Ireland to respond to an economic crisis and, secondly, the obligation to adhere to a collective agreement prohibiting any further reduction in the remuneration of public servants recruited before 2011.
16
That court takes the view that, taken individually, those grounds do not constitute valid justifications, but that they might provide a justification in combination.
17
In those circumstances, the Labour Court (Ireland) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)
Does it constitute indirect discrimination on grounds of age, within the meaning of Article 2(b) of Directive 2000/78/EC, for a Member State, in its capacity as an employer, to introduce lower salary scales for new entrants to the profession of national teacher while leaving unaltered the pay of those teachers already in employment, where:
(a)
the revised salary scales and the existing salary scales apply to all teachers in the respective categories regardless of their age;
(b)
at the point at which they were recruited and placed on the respective scales there was no difference in the age profile of those in the higher paid group and those in the lower paid group;
(c)
the introduction of the revised scales has resulted in a substantial difference in pay as between two groups of teachers who are engaged in work of equal value;
(d)
the average age of those placed on the reduced salary scales is lower than that of the average age of those on the original salary scales;
(e)
at the point at which the lower salary scales were introduced, the State’s statistics showed that 70% of teachers appointed were 25 years of age or under and it was acknowledged that this was typical of the age profile of entrants to national teaching in any given year; and
(f)
national teachers who entered the profession in 2011 and later suffer a clear financial disadvantage in comparison to their teaching colleagues appointed prior to 2011.
(2)
If the answer to question 1 is in the affirmative, can the introduction of the lower salary scales be objectively justified by a requirement to achieve a medium- to long-term structural reduction in the cost of the public service, having regard to budgetary constraints facing the State and/or the importance of maintaining good industrial relations with existing civil and public servants?
(3)
Would the answer to question 2 be different if the State could have achieved equivalent savings by reducing the pay of all teachers by a significantly lesser amount than the reduction applied only to newly recruited teachers?
(4)
Would the answer to questions 2 or 3 be different if the decision not to reduce the salary scales applicable to teachers already in employment was taken in compliance with a collective agreement between the Government as an employer and the trade unions representing public service workers whereby the Government committed not to further reduce the pay of existing public servants who had already been subject to pay cuts and the industrial relations consequences that would flow from a failure to comply with that agreement, having regard to the fact that the new pay scale introduced in 2011 did not form part of such a collective agreement?’
Consideration of the questions referred
The first question
18
By its first question, the referring court asks, in essence, whether Article 2(2)(b) of Directive 2000/78 must be interpreted to the effect that a measure such as that at issue in the main proceedings which, as of a specific date, provides for the application on the recruitment of new teachers of a salary scale and classification on that scale which are less advantageous than that applied, under the rules previous to that measure, to teachers recruited before that date constitutes indirect discrimination on the grounds of age, within the meaning of that provision.
19
First of all, it must be recalled that it follows from Article 2(1) of Directive 2000/78, read in conjunction with Article 1 thereof, that for the purposes of that directive the principle of equal treatment means that there must be no direct or indirect discrimination whatsoever on the grounds, inter alia, of age. It is clear moreover from Article 2(2)(b) of that directive that, for the purposes of that directive, indirect discrimination on grounds of age occurs where an apparently neutral provision, criterion or practice would put persons having a particular age at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
20
Therefore, in order to determine whether Mr Horgan and Ms Keegan may rely on the principle set out in the previous paragraph, it is necessary to ascertain whether teachers recruited after 1 January 2011 are treated differently from those recruited before that date on account of their age at the date of their recruitment.
21
In that regard, it is apparent from the file before the Court that Ireland chose to amend the remuneration conditions for newly recruited public servants, including teachers, as of 1 January 2011, by providing for a 10% reduction in remuneration and classification at the first point on the salary scale instead of classification at the second or third point.
22
Those new conditions are applicable to the situation of Mr Horgan and Ms Keegan and to that of the other teachers recruited after that date and it is common ground that those persons are engaged in work comparable to that of the teachers recruited before that date.
23
On the other hand, the teachers recruited before 1 January 2011 were necessarily classified on the scale in accordance with the conditions in force at the date of their recruitment, that classification determining the amount of their remuneration.
24
That difference in treatment therefore results from the date of recruitment of the respective group of teachers, since that date determines whether the former or the new rules on the salary scale and classification on that scale are applicable.
25
Thus the only relevant criterion for the purposes of applying the new rules on the salary scale and classification on that scale is whether the person concerned is a ‘new entrant to the public service as of 1 January 2011’, regardless of the age of the public servant at the date at which he or she was recruited. Accordingly, that criterion, which renders the application of the new rules dependant exclusively on the date of recruitment as an objective and neutral factor, is manifestly unconnected to any taking into account of the age of the persons recruited (see, to that effect, judgment of 22 December 2008, Centeno Mediavilla and Others v Commission, C‑443/07 P, EU:C:2008:767, paragraphs 81 and 83).
26
In addition, the referring court stated that although, at the time of their recruitment, Mr Horgan, Ms Keegan and the majority of the other teachers recruited after 1 January 2011 were younger than the teachers recruited before that date, inasmuch as at that date approximately 70% of them were 25 years of age or under, it is also common ground that irrespective of the year of recruitment, both the teachers recruited after 1 January 2011 and those recruited before that date were on average 25 years of age or under.
27
It follows from the foregoing that the new remuneration conditions introduced by Ireland are not based on a criterion which is inextricably or indirectly linked to the age of the teachers, so that it cannot be considered that the new rules establish a difference of treatment on grounds of age (see, to that effect, judgment of 7 June 2012, Tyrolean Airways Tiroler Luftfahrt Gesellschaft, C‑132/11, EU:C:2012:329, paragraphs 29 and 30).
28
Having regard to those considerations, the answer to the first question is that Article 2(2)(b) of Directive 2000/78 must be interpreted to the effect that a measure such as that at issue in the main proceedings which, as of a specific date, provides for the application on the recruitment of new teachers of a salary scale and classification on that scale which are less advantageous than that applied, under the rules previous to that measure, to teachers recruited before that date does not constitute indirect discrimination on the grounds of age within the meaning of that provision.
The second to fourth questions
29
In view of the answer given to the first question, there is no need to answer the second to fourth questions.
Costs
30
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Second Chamber) hereby rules:
Article 2(2)(b) of Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted to the effect that a measure such as that at issue in the main proceedings which, as of a specific date, provides for the application on the recruitment of new teachers of a salary scale and classification on that scale which are less advantageous than that applied, under the rules previous to that measure, to teachers recruited before that date does not constitute indirect discrimination on the grounds of age within the meaning of that provision.
Arabadjiev
Levits
Berger
Vajda
Xuereb
Delivered in open court in Luxembourg on 14 February 2019.
A. Calot Escobar
Registrar
A. Arabadjiev
President of the Second Chamber
WRC Code
INDUSTRIAL RELATIONS ACT 1990 (CODE OF PRACTICE ON LONGER WORKING) (DECLARATION) ORDER 2017
WHEREAS the Workplace Relations Commission has prepared, under subsection (1) of section 42 of the Industrial Relations Act 1990 (No. 19 of 1990), a draft code of practice around the issue of longer working, setting out best industrial relations practice in managing the engagement between employers and employees in the run up to retirement age in the employment concerned.
AND WHEREAS the Workplace Relations Commission has complied with subsection (2) of that section and has submitted the draft code of practice to the Minister for Business, Enterprise and Innovation.
NOW THEREFORE, I, Pat Breen, Minister of State at the Department of Business, Enterprise and Innovation, in exercise of the powers conferred on me by subsection (3) of that section and the Labour (Transfer of Departmental Administration and Ministerial Functions) Order 1993 (S.I. No. 18 of 1993), the Business, Enterprise and Innovation (Delegation of Ministerial Functions) Order 2017 (S.I. No. 569 of 2017) hereby order as follows:
1. This Order may be cited as the Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017.
2. It is hereby declared that the code of practice set out in the Schedule to this Order shall be a code of practice for the purposes of the Industrial Relations Act 1990 (No. 19 of 1990).
Notice of the making of this Statutory Instrument was published in “Iris Oifigiúil” of 2nd January, 2018.
[600] 3
SCHEDULE
CODE OF PRACTICE
Introduction
Section 42 of the Industrial Relations Act 1990 provides for the preparation of draft codes of practice by the Workplace Relations Commission for submission to the Minister for Business, Enterprise and Innovation. Codes of Practice are written guidelines, agreed in a consultative process, setting out guidance and best practice in regard to industrial relations practice and compliance.
Arising from a recommendation of the Report of the Interdepartmental Group on Fuller Working Lives (published in August 2016), the Commission was requested on 28 September 2016 by the Minister to prepare a Code of Practice around the issue of longer working, setting out best industrial relations practice in managing the engagement between employers and employees in the run up to retirement age in the employment concerned.
Background
The proportion of older workers, and, in particular, workers who want to continue in employment beyond what would have been regarded as the traditional retirement age, i.e. 65 years of age, is forecast to grow significantly in the future. Employers need to be prepared for this in the context of:
• Managing requests from people to continue to work beyond what would have been regarded as the normal retirement age;
• Developing employment practices and procedures appropriate to increasingly age diverse workplaces that encourage retention of older workers and longer working lives; and
• The changing statutory and legal framework in regard to retirement and pension entitlements.
Purpose
The main purpose of this Code is to set out, for the guidance of employers, employees and their representatives, best principles and practices to follow during the engagement between employers and employees in the run up to retirement including responding to requests to work beyond the retirement age in the employment concerned.
In preparing this Code of Practice, the Workplace Relations Commission consulted with the Irish Business and Employers Confederation, the Irish Congress of Trade Unions and relevant Government Departments.
The Code sets out best practice over the following headings:
• Utilising the skills and experience of older workers.
• Objective justification of retirement.
• Standard retirement arrangements.
• Requests to work longer.
Utilising the Skills and Experience of Older Workers
From an employer perspective, managing an older and diverse workforce in a positive way will deliver greatest value by looking at how best to maximise the experience and skills of older workers, and to harness and accommodate those experiences and skills to the advantage of the business. Such measures could include:
• Training of management at all levels about age diversity and the benefits of such diversity;
• Encouraging knowledge and experience sharing and utilising the skill and experiences of all workers;
• Exploring measures around flexible working patterns;
• “Proofing” policies and procedures for age bias; or
• Encouraging a culture that appreciates the continuing need for relevant training and development amongst all age groups.
Delivering a positive message around embracing and valuing employees of all ages, raising age discrimination awareness and having a culture that does not tolerate discrimination are key to good industrial and workplace relations.
Objective Justification
There is no statutory retirement age in the private sector. Retirement ages in the private sector are generally set out by means of:
(a) an express term in the employee’s contract of employment;
(b) an implied term in the employee’s contract of employment;
(c) relevant policies, for example a staff handbook; and
(d) custom and practice generally arising from the pension date set out in the relevant occupational pension scheme.
The rules governing the compulsory retirement ages for public servants are, in the main, set down in primary legislation.
The Employment Equality Acts 1998 to 2015 prohibit discrimination on nine grounds including age. Therefore, the termination of an employee because of age could be construed as discrimination under the legislation. The Equality (Miscellaneous Provisions Act) 2015, which came into effect on 1 January 2016 made a number of amendments to the 1998 Act. Section 34 (4) of the Act now 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 voluntary 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.”
Essentially the law is now that compulsory retirement ages set by employers must be capable of objective justification both by the existence of a legitimate aim and evidence that the means of achieving that aim is appropriate and necessary. Examples of what constitutes a legitimate aim by an employer may include:
• Intergenerational fairness (allowing younger workers to progress);
• Motivation and dynamism through the increased prospect of promotion;
• Health and Safety (generally in more safety critical occupations);
• Creation of a balanced age structure in the workforce;
• Personal and professional dignity (avoiding capability issues with older employees); or
• Succession planning.
Standard Retirement Arrangements
1. Identifying Individual Intentions
Good workforce planning is a critical element in any workplace. Central to this are appropriate employee numbers and skill sets, recruitment, and planning for departures including retirement. Where no contractual retirement date exists, it is reasonable as part of workforce planning for an employer to raise and discuss with the employee, their retirement intentions.
2. General Information/Supports
Good information and suitable guidance can enable employees to make more informed choices in planning for their retirement. Employers could
consider the provision of certain supports, for example, suitable pre-retirement courses, a flexible or part time working arrangement, counselling etc., essentially with a view to assisting the transition to retirement.
It is recommended that an employer should provide clear information on how retirement procedures work, both at recruitment and at regular occasions throughout an employee’s career. At the very least, appropriate guidance on how reliable and informative information can be sourced should be made available to the employee. This should be the case irrespective of whether the employment has a pension scheme in place or not.
The Retirement Process
It is good practice for an employer to notify an employee of the intention to retire him/her on the contractual retirement date within 6 — 12 months of that date. This allows for reasonable time for planning, arranging advice regarding people succession, etc. While the initial notification should be in writing, it should be followed up with a face-to-face meeting which should focus on addressing the following:
• Clear understanding of the retirement date and any possible issues arising;
• Exploration of measures (subject to agreement) which would support the pathway to retirement, for example flexible working, looking at alternative roles up to the date of retirement;
• Transitional arrangements in regard to the particular post; and
• Assistance around guidance and information.
Request to Work Longer
Questions for the Employer and Employee
A request from an employee to work longer than their contracted retirement age should be considered carefully. There are a number of matters to be considered by the employer and employee in this regard including:
For the Employee
• Is the employee confident that he/she can continue to perform the role to the required standard?
• Can flexible working options or alternative roles be considered?
• What is the duration of the extension being sought?
• Are there any pension implications?
• Are there contract of employment implications?
For the Employer
• Are there good grounds on which to accept or refuse the request e.g. can the retirement be justified on a legitimate and objective basis? It is important to note that the Equality (Miscellaneous Provisions) Act 2015 requires that a fixed-term contract post-retirement age must be objectively justified.
• What are the objective criteria applicable to the request? This should form the basis of any assessment of a request to work beyond retirement age to ensure an equal and consistent approach to addressing this and other future requests.
• How would the arrangements for the employee remaining on in the workforce be contractually framed (e.g. fixed term contract)?
• Could granting the request be on the basis of a more flexible working arrangement (e.g. less than full hours or an alternative role)?
Request to Work Longer Procedure
In dealing with a request to work longer it is recommended that the parties engage as follows:
1. The employee should make such a request in writing no less than three months from the intended retirement date to be followed up with a meeting between the employer and employee. This meeting gives both the employee an opportunity to advance the case and allowing the employer to consider it. It is important that the employee is listened to and that any decision made is on fair and objective grounds.
2. The employer’s decision should be communicated to the employee as early as practical following the meeting.
3. Should the decision be to offer a fixed-term contract post-retirement age, the period should be specified, setting out the timeframe, and the legal grounds underpinning the new contract should be made clear (i.e. fixedterm contract). It is good practice to include a reference that the decision is made solely having regard to the case being made by the employee and does not apply universally.
4. Where the decision is to refuse the request, the grounds for the decision should be set out and communicated in a meeting with the employee. This will help the employee to understand why the request has not been granted, and give the employee confidence that his/her case has been given serious consideration and that there are good grounds for refusing the request. The applicant should have recourse to an appeals mechanism, for
example through the normal established grievance procedures in the organisation.
5. An employee may be accompanied to a meeting by a work colleague or union representative to discuss a request to the employer to facilitate working longer and in any appeals process around same.
GIVEN under my hand, 20 December 2017.
PAT BREEN, Minister of State at the Department of Business, Enterprise and Innovation.
Code of Practice
(Code of Practice on Longer Working) (Declaration) Order 2017
Recitals
WHEREAS the Workplace Relations Commission has prepared, under subsection (1) of section 42 of the Industrial Relations Act 1990 (No. 19 of 1990), a draft code of practice around the issue of longer working, setting out best industrial relations practice in managing the engagement between employers and employees in the run up to retirement age i tnhe employment concerned.
AND WHEREAS the Workplace Relations Commission has complied with subsection (2) of that section and has submitted the draft code of practice to the Minister for Business, Enterprise and Innovation.
NOW THEREFORE, I, Pat Breen, Minister of State at the Department of Business, Enterprise and Innovation, in exercise of the powers conferred on me by subsection (3) of that section and the Labour (Transfer of Departmental Administration and Ministerial Functions) Order 1993 ( S.I. No. 18 of 1993 ), the Business, Enterprise and Innovation (Delegation of Ministerial Functions) Order 2017 ( S.I. No. 569 of 2017 ) hereby order as follows:
1. This Order may be cited as the Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017.
2. It is hereby declared that the code of practice set out in the Schedule to this Order shall be a code of practice for the purposes of the Industrial Relations Act 1990 (No. 19 of 1990).
SCHEDULE
CODE OF PRACTICE
Introduction
Section 42 of the Industrial Relations Act 1990 provides for the preparation of draft codes of practice by the Workplace Relations Commission for submission to the Minister for Business, Enterprise and Innovation. Codes of Practice are written guidelines, agreed in a consultative process, setting out guidance and best practice in regard to industrial relations practice and compliance.
Arising from a recommendation of the Report of the Interdepartmental Group on Fuller Working Lives (published in August 2016), the Commission was requested on 28 September 2016 by the Minister to prepare a Code of Practice around the issue of longer working, setting out best industrial relations practice in managing the engagement between employers and employees in the run up to retirement age in the employment concerned.
Background
The proportion of older workers, and, in particular, workers who want to continue in employment beyond what would have been regarded as the traditional retirement age, i.e. 65 years of age, is forecast to grow significantly in the future. Employers need to be prepared for this in the context of:
• Managing requests from people to continue to work beyond what would have been regarded as the normal retirement age;
• Developing employment practices and procedures appropriate to increasingly age diverse workplaces that encourage retention of older workers and longer working lives; and
• The changing statutory and legal framework in regard to retirement and pension entitlements.
Purpose
The main purpose of this Code is to set out, for the guidance of employers, employees and their representatives, best principles and practices to follow during the engagement between employers and employees in the run up to retirement including responding to requests to work beyond the retirement age in the employment concerned.
In preparing this Code of Practice, the Workplace Relations Commission consulted with the Irish Business and Employers Confederation, the Irish Congress of Trade Unions and relevant Government Departments.
The Code sets out best practice over the following headings:
• Utilising the skills and experience of older workers.
• Objective justification of retirement.
• Standard retirement arrangements.
• Requests to work longer.
Utilising the Skills and Experience of Older Workers
From an employer perspective, managing an older and diverse workforce in a positive way will deliver greatest value by looking at how best to maximise the experience and skills of older workers, and to harness and accommodate those experiences and skills to the advantage of the business. Such measures could include:
• Training of management at all levels about age diversity and the benefits of such diversity;
• Encouraging knowledge and experience sharing and utilising the skill and experiences of all workers;
• Exploring measures around flexible working patterns;
• “Proofing” policies and procedures for age bias; or
• Encouraging a culture that appreciates the continuing need for relevant training and development amongst all age groups.
Delivering a positive message around embracing and valuing employees of all ages, raising age discrimination awareness and having a culture that does not tolerate discrimination are key to good industrial and workplace relations.
Objective Justification
There is no statutory retirement age in the private sector. Retirement ages in the private sector are generally set out by means of:
(a) an express term in the employee’s contract of employment;
(b) an implied term in the employee’s contract of employment;
(c) relevant policies, for example a staff handbook; and
(d) custom and practice generally arising from the pension date set out in the relevant occupational pension scheme.
The rules governing the compulsory retirement ages for public servants are, in the main, set down in primary legislation.
The Employment Equality Acts 1998 to 2015 prohibit discrimination on nine grounds including age. Therefore, the termination of an employee because of age could be construed as discrimination under the legislation. The Equality (Miscellaneous Provisions Act) 2015, which came into effect on 1 January 2016 made a number of amendments to the 1998 Act. Section 34 (4) of the Act now 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 voluntary 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.”
Essentially the law is now that compulsory retirement ages set by employers must be capable of objective justification both by the existence of a legitimate aim and evidence that the means of achieving that aim is appropriate and necessary. Examples of what constitutes a legitimate aim by an employer may include:
• Intergenerational fairness (allowing younger workers to progress);
• Motivation and dynamism through the increased prospect of promotion;
• Health and Safety (generally in more safety critical occupations);
• Creation of a balanced age structure in the workforce;
• Personal and professional dignity (avoiding capability issues with older employees); or
• Succession planning.
Standard Retirement Arrangements
1. Identifying Individual Intentions
Good workforce planning is a critical element in any workplace. Central to this are appropriate employee numbers and skill sets, recruitment, and planning for departures including retirement. Where no contractual retirement date exists, it is reasonable as part of workforce planning for an employer to raise and discuss with the employee, their retirement intentions.
2. General Information/Supports
Good information and suitable guidance can enable employees to make more informed choices in planning for their retirement. Employers could consider the provision of certain supports, for example, suitable pre-retirement courses, a flexible or part time working arrangement, counselling etc., essentially with a view to assisting the transition to retirement.
It is recommended that an employer should provide clear information on how retirement procedures work, both at recruitment and at regular occasions throughout an employee’s career. At the very least, appropriate guidance on how reliable and informative information can be sourced should be made available to the employee. This should be the case irrespective of whether the employment has a pension scheme in place or not.
The Retirement Process
It is good practice for an employer to notify an employee of the intention to retire him/her on the contractual retirement date within 6 — 12 months of that date. This allows for reasonable time for planning, arranging advice regarding people succession, etc. While the initial notification should be in writing, it should be followed up with a face-to-face meeting which should focus on addressing the following:
• Clear understanding of the retirement date and any possible issues arising;
• Exploration of measures (subject to agreement) which would support the pathway to retirement, for example flexible working, looking at alternative roles up to the date of retirement;
• Transitional arrangements in regard to the particular post; and
• Assistance around guidance and information.
Request to Work Longer
Questions for the Employer and Employee
A request from an employee to work longer than their contracted retirement age should be considered carefully. There are a number of matters to be considered by the employer and employee in this regard including:
For the Employee
• Is the employee confident that he/she can continue to perform the role to the required standard?
• Can flexible working options or alternative roles be considered?
• What is the duration of the extension being sought?
• Are there any pension implications?
• Are there contract of employment implications?
For the Employer
• Are there good grounds on which to accept or refuse the request e.g. can the retirement be justified on a legitimate and objective basis? It is important to note that the Equality (Miscellaneous Provisions) Act 2015 requires that a fixed-term contract post-retirement age must be objectively justified.
• What are the objective criteria applicable to the request? This should form the basis of any assessment of a request to work beyond retirement age to ensure an equal and consistent approach to addressing this and other future requests.
• How would the arrangements for the employee remaining on in the workforce be contractually framed (e.g. fixed term contract)?
• Could granting the request be on the basis of a more flexible working arrangement (e.g. less than full hours or an alternative role)?
Request to Work Longer Procedure
In dealing with a request to work longer it is recommended that the parties engage as follows:
1. The employee should make such a request in writing no less than three months from the intended retirement date to be followed up with a meeting between the employer and employee. This meeting gives both the employee an opportunity to advance the case and allowing the employer to consider it. It is important that the employee is listened to and that any decision made is on fair and objective grounds.
2. The employer’s decision should be communicated to the employee as early as practical following the meeting.
3. Should the decision be to offer a fixed-term contract post-retirement age, the period should be specified, setting out the timeframe, and the legal grounds underpinning the new contract should be made clear (i.e. fixed-term contract). It is good practice to include a reference that the decision is made solely having regard to the case being made by the employee and does not apply universally.
4. Where the decision is to refuse the request, the grounds for the decision should be set out and communicated in a meeting with the employee. This will help the employee to understand why the request has not been granted, and give the employee confidence that his/her case has been given serious consideration and that there are good grounds for refusing the request. The applicant should have recourse to an appeals mechanism, for example through the normal established grievance procedures in the organisation.
5. An employee may be accompanied to a meeting by a work colleague or union representative to discuss a request to the employer to facilitate working longer and in any appeals process around same.
http://www.irishstatutebook.ie/images/ls
GIVEN under my hand,
20 December 2017.
PAT BREEN,
Minister of State at the Department of Business, Enterprise and Innovation.
EXPLANATORY NOTE
This note is not part of the Instrument and does not purport to be a legal interpretation.
The effect of this Order is to declare that the draft code of practice set out in the Schedule to this Order is a code of practice for the purposes of the Industrial Relations Act 1990 .