Case Number: DEC-E2012-016- Full Case Report. Equality Tribunal

• Docket Number: DEC-E2012-016- Full Case Report
• Date: 01 February 2012
• Court: Equality Tribunal

Employment Equality Acts Decision DEC-E2012-016

PARTIES Peter Gallagher
(Represented by Michael Landers, IMPACT) -V- Ryanair Ltd.
(Represented by Martin Hayden, S.C.
instructed by O'Rourke Reid Law Firm)

File reference: EE/2009/224
Date of issue: 14 February 2012

Keywords - Employment Equality Acts - Discriminatory Treatment - Discriminaotry Dismissal - Age - Prima facie case

1. DISPUTE

1.1 This dispute concerns a claim by Mr Peter Gallagher that he was subjected to discriminatory treatment and discriminatory dismissal 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 6 April 2009 under the Acts. On 18 January 2012, in accordance with his powers under section 75 of the Acts, the Director 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 had been sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 27 January 2012. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.

2. PRELIMINARY MATTERS

2.1 The respondent submitted that it wished to have a stenographer take a note of the proceedings and had engaged a firm of stenographers for that purpose. The Equality Officer considered this request and granted permission for a stenographer to take notes on condition that the provisions of Section 97 of the Acts were adhered to. In addition, the Equality Officer noted that, in the interests of fairness and natural justice, a copy of any such note should be made available to the complainant. The respondent agreed to make a copy available to the complainant on a shared cost basis, but the complainant declined this offer.

2.2 The respondent sought to have a number of further matters determined by way of a preliminary decision. Having considered submissions on these matters from both parties, the Equality Officer informed the parties that he would proceed to hear the evidence of the parties and to deal with any matters that were appropriate as preliminary matters within the context of issuing a final decision. The respondent submitted that under those conditions, it did not wish to have any further involvement in the hearing and, respectfully, would have to withdraw from the hearing of the complaint. As had been advised to the respondent, the Equality Officer then proceeded to hear the complainant's evidence in the absence of the respondent.

2.3 One issue upon which the respondent sought clarification was whether the complainant was in a position to pursue a complainant before the Tribunal given that the employment relationship had ended with the complainant's retirement. Section 77(5)(a) of the Acts provides that
"a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates."

In this instance the complainant is claiming that the act of retirement amounts to discrimination, and I note that his complainant was lodged within 6 months of the date of that retirement. Accordingly, I consider that the Tribunal is intra vires in proceeding to hear this complaint.

2.4 Another issue upon which the respondent sought clarification was whether the Tribunal would determine the applicability of Council Directive 2000/78/EC as a preliminary matter and issue a preliminary decision. This, it was submitted, would enable the respondent to tailor its defence to a particular set of circumstances.

3. SUMMARY OF THE COMPLAINANT'S SUBMISSION

3.1 The complainant submitted that he was employed by the respondent as a pilot since 1990. The complainant further submitted that his contract of employment did not specify a normal retirement age, instead requiring him to hold and maintain a Commercial Pilot's Licence (CPL) in order to discharge his contractual duties.

3.2 The complainant submitted that until relatively recently, the CPL was only valid until a pilot reached age 60 but that the situation has now changed and the CPL can be renewed until the pilot reaches age 65.

3.3 The complainant submitted that he reached the age of 60 on 7 October 2008 and that he did not wish to retire and made this clear to the respondent both orally and in writing, however the respondent proceeded to terminate his employment, with effect from 7 October 2008.

3.4 The complainant submitted that he also offered to continue to work for the respondent in other than full-time capacity either directly or on a contract basis through Company X, a contracting organisation used by the respondent. The complainant further submitted that this was refused and that the respondent stated that "having considered your record and performance during your time with us (including your continuing litigation) we would not consider you as a suitable candidate for future employment in this airline".

3.5 The complainant submitted that the respondent's termination of his employment could not or would not have happened to a pilot aged less than 60 years and that this constitutes discrimination on the age ground. The complainant further submitted that 60 is not a mandatory retirement age for pilots in the respondent's employment and that at least 5 other pilots have continued in employment after age 60 either directly or through a contracting agency. The complainant also submitted that the respondent cannot rely on the exclusion contained in Section 34(4) of the Acts.

3.6 The complainant submitted that notwithstanding the foregoing, even if the respondent does have a mandatory retirement age of 60, Section 34(4) of the Acts must be interpreted so as to comply with article 6(1) of Council Directive 2000/78/EC which prohibits age discrimination save for appropriate and necessary means to achieve legitimate aims within the context of national law and that the imposition of a mandatory retirement age by the respondent cannot come within the scope of measures allowed by article 6(1) and is thereby unlawful.

4. SUMMARY OF THE RESPONDENT'S SUBMISSION

4.1 The respondent submitted that the complainant is a former retired former pilot who has been a serial litigant against the airline throughout the course of his employment.

4.2 The respondent...