Case Number: DEC-S2020-008. Workplace Relations Commission

• Docket Number: DEC-S2020-008
• Court: Workplace Relations Commission

EMPLOYMENT EQUALITY ACTS

DECISION NO.DEC-S2020-008

PARTIES

Mr. Michael McKenna

-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/2008/718

Date of issue: 15th of October 2020

1. DISPUTE

1.1 This dispute involves a claim by Mr. Michael McKenna that he was discriminated against by the respondents on grounds of age, in terms of section 6(2) of the Employment Equality Acts, 1998-2004 and contrary to section 8 of those Acts, in relation to his compulsory retirement from an Garda Síochána on his 60th birthday

• BACKGROUND

2.1 The complainant is challenging the mandatory retirement age by which his employment was terminated on the 3rd of November 2008 when he reached the age of 60 on the basis that this amounted to direct discrimination on the grounds of age in terms of section 6(2) of the Employment Equality Acts 1998-2004 and contrary to section 8 of those Acts. The respondents reject the assertion that they discriminated against the complainant, stating that varying retirement ages are 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’). The respondent also submits that the retirement age is objectively justified in terms of sections 34 and/or 37 of the Employment Equality Acts 1998-2004.

2.2 The complainant referred a complaint to the Director of the Equality Tribunal (as it was then) under the Employment Equality Acts 1998-2004 on the 31st of October 2008.

At that time a number of similar cases were lodged with the Tribunal and an objection was raised by the respondent to the hearing of these cases firstly awaiting the written judgement of Mr Justice McKechnie in the High Court case of "Donnellan v Minister for Justice" in respect of the mandatory retirement age for Assistant Commissioners and secondly awaiting the outcome of "the Minister for Justice Equality and Law Reform v Director of the Equality Tribunal” which challenged the jurisdiction of the Equality Tribunal.

2.3 In February 2009 the High Court (Charlton J) held that the Equality Tribunal, as a body whose powers were defined by statute, was not entitled to commence a Hearing that had a result which enabled that Tribunal to overrule or disapply a Statutory Instrument made by the Minister for Justice, Equality and Law Reform even in circumstances where it considered that the Regulations were inconsistent with the Framework Directive .

2.4 The Equality Tribunal appealed the High Court judgement and in June 2017 the Supreme Court decided to refer a question to the Court of Justice of the European Union (“CJEU”) under Article 267 of the Treaty on the Functioning of the European Union (“TFEU”). The question referred was, in essence, whether a national body established by law, with a general jurisdiction to enforce EU law (in this case equality law) must be taken to have jurisdiction to disapply national legislation that was in breach of the relevant EU law, notwithstanding that jurisdiction also lay with the High Court. The CJEU delivered its judgement on 4 December 2018 (by which time the functions of the Equality Tribunal had transferred to the Workplace Relations Commission pursuant to the Workplace Relations Act 2015). It held that EU law, in particular the principle of primacy of EU law, must be interpreted as precluding national legislation, which restricted a national body established by law to ensure the enforcement of EU law in a particular area (such as the Workplace Relations Commission), including the jurisdiction to disapply a rule of national law that is contrary to EU law. In light of the judgement of the CJEU the WRC must be taken to have jurisdiction to disapply national legislation that was in breach of the relevant EU law, notwithstanding that jurisdiction also lay with the High Court. Accordingly following the CJEU judgement the Workplace Relations Commission proceeded to a hearing on the complaint.

2.5 In accordance with his powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission referred the case to me, Orla Jones an Adjudication Officer/Equality Officer for investigation, hearing and decision and for the exercise of other relevant functions of the Director (General) under Part VII of the Acts, at which point my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on 27th of January 2020.

2.6 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 83 of the Workplace Relations Act 2015.

• SUMMARY OF COMPLAINANT’S CASE

3.1 The complainant submits that he was discriminated against by the respondents on the grounds of age in relation to his compulsory retirement from an Garda Síochána at the age of 60. The complainant is challenging the mandatory retirement age by which his employment was terminated when he reached the age of 60 on the basis that this amounted to direct discrimination on the grounds of age.

3.2 On 31st of October 2008 the complainant instituted a claim of discrimination on the grounds of age under the Employment Equality Acts against the Minister for Justice and Equality, (then called the Minister for Justice, Equality and Law Reform and hereinafter referred to as “the Minister”) and the Garda Commissioner (“the Commissioner”) in respect to his mandatory retirement from his role of Superintendent of the Garda Síochána on reaching the age of 60.

3.3 The complainant was appointed Superintendent on 4th of June 2001. On 1st of October 2008 the complainant wrote to the Commissioner seeking an extension of his service beyond his age of retirement as per Regulation 6(b) of the Garda Síochána (Retirement)(No. 2) Regulations S.I. No. 335 of 1951 (“the 1951 (No.2) Regulations”) which Regulations are addressed in more detail below.

3.4 In this letter, the complainant referred to his work in Internal Affairs Investigations and the considerable experience he had built up since working in this area since June 2005. He also referred to his considerable experience prior to that in the investigation of crime as well as his experience and skills and managerial responsibilities undertaken in his role as Superintendent within the force. He stated that he believed that he was capable of providing further contributions over the coming years in the investigation of either complaints or crime or indeed in any area deemed appropriate in the interests of effectiveness and efficiency as Superintendent of An Garda Síochána. He requested to be retained in the job for a period not exceeding 5 years.

3.5 The complainant received a response to this letter on the 29th of October 2008 from the Superintendent who was Personal Assistant to the Commissioner.

The reply stated as follows:

The Commissioner has given consideration to your application for an extension of service under Regulation 6(b) of the Garda Síochána (Retirement) (No 2) Regulations 1951 and has noted the grounds put forward by you in support of your application.

I wish to advise you that the Commissioner is not satisfied that in your case it is necessary for him to invoke the provisions of Regulation 6(b) of the Garda Síochána (Retirement) (No 2) Regulations 1951 and accordingly will not be seeking the consent of the Minister for Justice, Equality and Law Reform to do so.

3.6 On 31st of October 2008 the complainant wrote to the Equality Tribunal alleging discrimination on the ground of age under the Employment Equality Acts 1998 and 2004. The correspondence stated that the claim was based on comparable compulsory retirement ages within the Civil Service.

3.7 The complainant submits...