The Equality Tribunal (the Tribunal) has awarded €12,000 in compensation to a former driver after finding he was discriminatorily dismissed on the grounds of age after he was forced to retire. The Tribunal found that the Respondent failed to provide objective and reasonable justification for the fixed retirement age of 65. This case is the latest determination from the Tribunal to further cement their views in relation to the requirement under the Employment Equality Acts 1998 – 2011 (the Acts) for an objective justification for a retirement age (notwithstanding the fact that the Irish legislation does not explicitly provide for this).
The Claimant commenced work as a part-time driver/attendant. His initial contract did not contain any retirement clause. However, when the recession hit in 2008 all employees were issued new contracts of employment with a clause stating the normal retirement age was 65. The Tribunal found that the Claimant had a legitimate expectation at least up until 2008 to work after his 65th birthday. The Tribunal found that the issuing of a different contract of employment (now containing a compulsory retirement clause) was an attempt by the Respondent to unilaterally alter the terms and conditions of his employment contract.
The Tribunal found that the Plaintiff had established a prima facie case of discriminatory dismissal and accordingly that the Respondent (even as a private actor) must provide objective justification for this age discrimination. In this regard it followed the reasoning set out by McKechnie J in the High Court case of Donnellan -v- the Minister for Justice, Equality and Law Reform [2008] IEHC 467. The Tribunal accepted that a "business – centric" justification as set out in the UK case of Seldon v Clarkson Wright and Jakes [2012] UKSC 16 SC could satisfy the objective justification requirement. However it distinguished the above case on the grounds that while succession planning is a legitimate aim for a law firm, this did not apply to the respondent in the present case as there were no efforts made to retain younger people or plan for succession. The Respondent here was driven solely by the desire to reduce headcount in the least expensive way. In relation to the issue of cost, it was acknowledged that budgetary restrictions can underpin a chosen policy; however, cost considerations cannot in themselves constitute a legitimate aim within the meaning of Article 6(1) of the grounding European Directive.
The Tribunal also rejected the health and safety argument as it said that the Respondent failed to provide evidence of why the chosen cut off point of 65 was appropriate and necessary, especially when employees happily worked beyond 65 prior to 2008. The reference to the Saunders v CHC Dec E 2011-142 case was not applicable here as in that case the Respondent provided empirical evidence to show that sick leave doubled for winch operators aged over the age of 50 thereby providing a valid reason for a fixed retirement. Evidence of this nature was not provided here. Having considered all of the above reasons, the Tribunal found that no objective justification was provided for the retirement age.
The determination also explicitly references the fact that this case differs from the Labour Court decision in Hospira v Roper and Ors EDA 1315 as that dealt with redundancy payments under section 34(3)(d) of the Acts rather than section 34 (4) as in this case. It was thought that the rationale applied in that Labour Court decision might also be applied to compulsory retirement cases however to date this has not happened. This case together with the decision earlier this year in John Roche v Complete Bar Solutions Dec E 2013-197 demonstrates the ongoing requirement for objective justification where a retirement age is imposed.
