Anne O'Connell Solicitors | View firm profile
Facts: The Complainant, Anthony Kenny commenced employment with the Respondent, Bord Na Mona Plc, on 15th May 1975, as a General Operative until he retired in April 2020. He thereafter requested to work beyond his retirement age. A meeting was convened in December 2019 and a correspondence declining his application was issued to him. The application was declined on the basis of (a) conditions of employment in relation to retirement age; (b) pension scheme rules; (c) custom and practice of the Respondent; and (d) employee’s entitlement to draw down a pension. This however did not refer to the Code of Practice on Longer Working nor did it provide an objective justification for the refusal. The Complainant appealed this decision and was issued an outcome of the appeal on 15th January 2020 confirming the above 4 headings and further added that “due regard to the health and safety requirements given the physically demanding nature of the general operative role and tasks associated with that role”.
The Respondent stated that the Company retirement age was 65 years and this was clearly set out in the Complainant’s contract of employment. The Complainant was thereafter represented by SIPTU. A JIRC was set up and this commission discussed the matter of retirement age and issued an interim decision on April 1, 2020 which set out a request to be offered a fixed term contract post retirement will be subject to satisfactory passing of medical examination in advance. In line with this decision, the Complainant was formally offered a 1-year post retirement fixed term contract on 8th May 2020, subject to satisfactory medical examination and made appointment with Medmark. The Complainant failed to attend the medical assessment and advised the Respondent that he was declining the Medmark appointments due to his concern over his diabetes and requested for alternative venue. The Respondent advised him that Medmark were the appointed Occupational Health Provider, and it was again reiterated that he could have his blood work completed locally to prevent him having to fast. The Complainant refused to attend any alternatively suggested dates and therefore was not granted a 1-year post retirement fixed term contract.
Findings & Decision: The Adjudicator noted that the original burden of proof is on the Complainant to present the facts that established discrimination and further noted that the Complainant had discharged this burden. The burden thus moved on to the Respondent. The Adjudicator noted that the contents of the letter of 13th December 2019 where the Respondent set out 4 reasons, did not meet the objective justification tests which have been set out by the Irish Courts, the Court of Justice of European Union and specifically in the matter of Mary Clarke and Louth County Council (EDA1916). The Adjudicator noted that the appeal decision which gave the 5th reason was the first time that an attempt was made to objectively justify the retirement and refusal to extend the employment. The Adjudicator further noted that the Respondent did not mention the arduous nature of the role in their letter of 13th December, which refused the extension. Based on the above observations, the Adjudicator held that the Complainant was discriminated against by the Respondent. The Complainant was awarded €25,000 in compensation for the breach of Employment Equality Acts.
Takeaway for the Employers: Extension of employment post retirement age is a tricky process. Employers should be wary of the fact that irrespective of whether such extension is granted or rejected, the employer should clearly lay down the objective justification for such a decision. In this case, although the Respondent laid down the “health and safety” ground for rejecting the application, it failed to notify the employee in the first instance of this or any objective justification. The other reasons did not amount to objective justifications. All reasons for the extension or rejection of an application for post-retirement employment contract must be clearly laid down in the initial letter, as opposed to explaining the same in later communications.
Authors – Chaitra Girish Mallya & Anne O’Connell