Case Number: DEC-E2020-007. Equality Tribunal

Judgment Date01 October 2020
Docket NumberDEC-E2020-007
CourtEquality Tribunal

EMPLOYMENT EQUALITY ACTS

DECISION NO.DEC-E2020-007

PARTIES

Anthony Brislane

-v-

Garda Commissioner & Minister for Justice & Equality

(represented by Oisin Quinn SC, Desmond Ryan BL, instructed by Chief State Solicitor’s Office)

File reference: EE/2008/311

Date of issue: 20 October 2020

  1. Background to the Claim

1.1 The complainant referred a complaint to the Director of the Equality Tribunal under the Employment Equality Acts on 12th May 2008. At that juncture, the respondents objected to the hearing of this complaint together with a number of similar cases on the basis of jurisdictional issues. The matter was lodged with the Supreme Court which subsequently referred the matter to the European Court of Justice for a decision on the preliminary issue. The question concerning the jurisdiction of the WRC was given by the CJEU in January 2019 which gave jurisdiction to the WRC to hear the complaints. As confirmed by the CJEU in Minister for Justice v Workplace Relations Commission (C-378/17), the WRC is required to disapply any national measure that is contrary to EU law and accordingly the herein case was re-listed for hearing by the WRC.

On 2nd October 2019 in accordance with his powers under section 75 of the Employment Equality Acts, 1998 – 2015 the Director General delegated the case to me, Valerie Murtagh, an Equality Officer/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. As required by Section 79 (1) of the Acts and as part of my investigation, I proceeded to hold a hearing on the 28th January 2020.

1.2 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 84(3) of the Workplace Relations Act, 2015.

  1. Dispute

2.1 The dispute concerns a claim by the complainant that he was discriminated against by the respondents on the grounds of age in relation to his retirement from An Garda Siochana.

  1. Summary of the Respondents Case.

3.1 The complainant herein claims that he was discriminated against on the age ground in being required to retire at the age of 60 in accordance with the compulsory retirement age set out in the regulations pertaining to An Garda Síochána described in detail below. The complainant was obliged to retire from An Garda Síochána in 2008, being the year in which he attained the age of 60. The complainant held the rank of Superintendent at the time of his retirement. He claims that this mandatory retirement age is unlawfully discriminatory, being less favourable treatment on the age ground contrary to the Employment Equality Act 1998 as amended and contrary to Article 2(2) of the Directive Council Directive 2000/78/EC.

3.2 Counsel submitted that varying retirement ages were set for members of An Garda Síochána of various ranks in Regulation 6 of the Garda Síochána (Retirement)(No. 2) Regulations 1951, S.I. No. 335/1951 (‘the 1951 Regulations’) in the following terms:

“The following provisions shall apply to future members of the Garda Síochána in lieu of the existing provisions:

(a) subject to subparagraph (b) of this paragraph, every such member shall retire from the Garda Síochána on attaining the age which is applicable to the rank in the Garda Síochána for the time being held by such member, that is to say:

(i) in the case of a member holding any rank higher than the rank of chief superintendent—on attaining the age of sixty-five years, and

(ii) in the case of a member holding the rank of chief superintendent or of superintendent—on attaining the age of sixty years, and

(iii) in the case of a member below the rank of superintendent—on attaining the age of fifty-seven years,

(b) notwithstanding subparagraph (a) of this paragraph, if, but only if, the Commissioner is satisfied that it is in the interests of the efficiency of the Garda Síochána that the age at which any such member would retire under the said subparagraph should be extended because of the possession by that member of some special qualification or experience, the Commissioner may, with the consent of the Minister, extend that age in the case of that member by such period, not exceeding five years, as the Commissioner shall determine”.

3.3 In respect of the rank of Commissioner, the age was lowered from 65 to the age of 60 (or the Commissioner completing a period of seven years in that rank, whichever was the earlier) by the Garda Síochána (Retirement) Regulations 1990, S.I. No. 318/1990. The 1990 Regulations were replaced by the Garda Síochána Act 2005 (Retirement) Regulations 2018, S.I. No. 28/2018, which require the Commissioner to retire after five years’ service in that rank or upon reaching the age of 60, whichever is the earlier.

3.4 In respect of members of the rank of Assistant Commissioner or Deputy Commissioner, the age was lowered from 65 to the age of 60 by the Garda Síochána (Retirement) Regulations 1996, S.I. No. 16/1996 (‘the 1996 Regulations’). The Public Service Superannuation (Miscellaneous Provisions) Act 2004 created a uniform retirement age of 60 (with the possibility of being retired at 55) for new entrants to An Garda Síochána. In respect of existing members below the rank of Superintendent, the age was raised from 57 to 60 by the Garda Síochána (Retirement) (No. 2) Regulations 2006, S.I. No. 686/2006 (‘the 2006 Regulations’).

3.5 Counsel for the respondents submitted that the background to these 2006 Regulations was that the then Tánaiste and Minister for Justice sought Government approval for an increase in the retirement age of members of ranks in the Garda Síochána below the rank of Superintendent from 57 to 60 years. Prior to this change, the position was that under the relevant Garda Síochána Regulations, members of ranks in the Garda Síochána up to and including Inspector, who were recruited to An Garda Síochána prior to 1 April, 2004, were obliged to retire at 57 years of age. Members recruited after that date may serve until 60, subject to an annual check after the age of 55 on fitness to serve, in accordance with the provisions of the Public Service Superannuation (Miscellaneous Provisions) Act 2004.

3.6 In the context of discussions which the Tánaiste had with the Garda Associations in relation to the establishment of the Garda Reserve, he informed the Associations that he saw merit in considering an increase in the retirement age of pre-2004 members of Garda, Sergeant and Inspector ranks from 57 to 60 to facilitate the supervision and mentoring of reserve members by members of those ranks. The Tánaiste believed that the time was right to increase the retirement age for members of these ranks to 60 years, not only for that reason but as a measure to maximise Garda strength at this time. It was also the intention at the time for the Tánaiste to discuss this matter formally with the Garda Associations under the Garda Síochána Conciliation and Arbitration Scheme.

3.7 The combined effect of the above regulations and the 2004 Act is, broadly put, to set down a common retirement age of 60 for all members of An Garda Síochána.[1] The compulsory retirement age applied to the complainant has remained set at the age of 60 for members of his rank by virtue of the continued...

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