Case Number: DEC-E2012-093- Full Case Report. Equality Tribunal

• Docket Number: DEC-E2012-093- Full Case Report
• Date: 01 July 2012
• Court: Equality Tribunal

EQUALITY OFFICER DECISION NO: DEC-E/2012/093

PARTIES O'NEILL
(REPRESENTED BY BRIAN FOLEY BL -
INSTRUCTED BY MASON HAYES & CURRAN - SOLICITORS) AND FAIRVIEW MOTORS LTD
(REPRESENTED BY BRIAN CONROY BL -
INSTRUCTED BY O'SHEA BARRY - SOLICITORS)

File No: EE/2008/793 Date of issue: 18 July, 2012

Headnotes: Employment Equality Acts 1998- 2008 - sections 6, 8 and 34 - age - discriminatory dismissal -retirement - objective justification- purposive interpretation.

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...