Iarnrod Eireann v John Coyle (Represented by Gilvarry & Associates)
| Jurisdiction | Ireland |
| Judgment Date | 08 February 2021 |
| Judgment citation (vLex) | [2021] 2 JIEC 0805 |
| Docket Number | FULL RECOMMENDATION ADJ-00009268 CA-00012097-001/002 DETERMINATION NO.EDA213 |
| Court | Labour Court (Ireland) |
FULL RECOMMENDATION
ADE/18/80
ADJ-00009268 CA-00012097-001/002
DETERMINATION NO.EDA213
Labour Court
Chairman: Mr Geraghty
Employer Member: Ms Connolly
Worker Member: Ms Treacy
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015
1. Appeal of Adjudication Officer Decision No(S) ADJ-00009268 CA-00012097-001/002.
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 14 November 2018. A Labour Court hearing took place in a virtual Courtroom on 12 January 2021. The following is the Court's Determination:-
This is an appeal by Mr. Coyle, ‘the Complainant’, against a Decision of an Adjudication Officer, ‘AO’, ‘the Respondent’, under the Employment Equality Acts 1998 to 2015, ‘the Acts’. The Complainant claimed that he had been discriminated against on grounds of age and that he had been victimised for having raised this issue with the Respondent.
The Complainant commenced working for the Respondent as a Crossing Keeper in 1996. It is common case between the parties that, subject to medical fitness and business needs, the Complainant's terms and conditions upon taking up this role permitted him to remain in employment until age 70.
The Crossing Keepers were given an option of joining the occupational pension scheme in 2004. The ‘normal’ retirement age for members of the scheme was 65, since changed to 66. The Complainant took up the option to join the scheme.
The Complainant lodged his two complaints with the Workplace Relations Commission under the Acts on 23 June 2017. The AO found against the Complainant on the two complaints and he appealed to this Court.
The names of Mr. Jimmy Hopkins and Mr. Johnny Keady were given to the Court as comparators.
The complaints were lodged on 23 June 2017, so the cognisable period was 24 December 2016 to 23 June 2017.
The most recent date cited for alleged discrimination on the claim form submitted to the Workplace Relations Commission was 5 May 2017. The date on which the Complainant was compelled to retire was 4 August 2017.
The Complainant's representative stated to the Court that from the time when the matter of his retirement age was raised by the Complainant in February/ March 2016 up to the date of his compulsory retirement in August 2017 there was, in their view, continuing and ongoing discrimination. A complaint of discriminatory dismissal ‘ per se’ was not made to the Court but there was a complaint of ongoing discrimination in the period in question, during which time it was stated that the Complainant was prevented from availing of VS because of his age, contrary to the Acts. It was clarified also that it was not being argued that the retirement age of 66 was, itself, discriminatory but, rather, it was being argued that the use of this retirement age as the basis for refusing access to the Complainant to the VS scheme was an act of discrimination.
The claim of victimisation was stated by the Complainant's representative to be based on the same set of facts.
The Complainant's terms and conditions upon taking up his employment entitled him to work until age 70, subject to medical fitness. He was not advised when he joined the company pension scheme in 2004 that this had resulted in a changed retirement age to 65 years, later 66 years. He believed that, while contributions to the scheme would cease at 66, he would be permitted to work until age 70. He was ultimately dismissed on grounds of retirement and was victimised by being refused access to the VS scheme on the apparent grounds that he was close to retirement. He made clear that he wanted to remain in employment until age 70.
The first that the Complainant heard of any change to retirement age was at the end of 2015. He then raised the matter with the Respondent through his union. The Complainant is a stranger to an alleged agreement that purports to change his retirement age.
The Complainant was offered VS in April 2017. The figures quoted to him related to a retirement age of 66 not 70. He decided that, rather than engage in a long legal battle, he would accept the offer. However, when he handed in his acceptance on 5 May 2017, he was told that he was too late and he had to await a new scheme, to be announced shortly. No such offer was forthcoming. The Complainant was upset, took legal advice and a letter was sent to the Respondent to protest this age-based discrimination.
The Respondent purported to retire the Complainant on 4 August 2017.
A retirement age must be objectively justified as per s. 34(4) of the Acts.
There is no change in the Complainant's retirement age as set in his contract as was the situation in Longford County Council v. Michael Neilon (UDD 1950) in which case the Labour Court found for the Complainant.
The burden of proof for the existence of a change in retirement age rests with the Respondent. As was noted in Reilly v Drogheda Borough Council (2008) IEHC 357, when an employee has not contracted to an altered retirement age, their employer cannot change it unilaterally. If there was no change in retirement age, the Complainant must succeed.
Other staff have worked past age 65.
By denying the Complainant access to the scheme of V S due to his age, the Respondent discriminated against him contrary to the Acts. The Complainant raised concerns about his retirement age with the Respondent in 2016. The refusal to allow him access the VS scheme on 5 May 2017 was an act of victimisation for having raised these concerns.
The written submission on behalf of the Complainant elaborates arguments regarding the need for objective justification for retirement ages. It was clarified at the hearing that this was not being pursued. Part of the Respondent's response also deals with this matter and much of this is also omitted from the summary below.
The Respondent did not discriminate against the Complainant nor was the Complainant victimised by reason of refusal of access to the VS scheme.
The Complainant, as a member of the company pension scheme, was required to retire at age 66. This was provided for in the relevant collective agreement that allowed the Complainant to join the scheme and was set out in the information provided to him...
To continue reading
Request your trial