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Article 6(1) of the Framework Directive, Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation states:

“Justification of differences of treatment on grounds of age

  1. Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.

Such differences of treatment may include, among others:

(a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;

(b) the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment;

(c) the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.

  1. Notwithstanding Article 2(2), Member States may provide that the fixing for occupational social security schemes of ages for admission or entitlement to retirement or invalidity benefits, including the fixing under those schemes of different ages for employees or groups or categories of employees, and the use, in the context of such schemes, of age criteria in actuarial calculations, does not constitute discrimination on the grounds of age, provided this does not result in discrimination on the grounds of sex.”

Section 8 of the Employment Equality Act 1998 (as amended) outlines the prohibition on discrimination in an employment setting.  The Act provides for nine discriminatory grounds, which include, as is relevant for the Complainant’s complaint, the ground of age.

Section 34 of the Employment Equality Act 1998, as amended by section 10 of the Equality (Miscellaneous Provisions Act) 2015 outlines that:

“(4) Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees if:

(a)it is objectively and reasonably justified by a legitimate aim, and

(b)the means of achieving that aim are appropriate and necessary”

Notwithstanding the recent amendment, this section reflects the approach taken by the Equality Tribunal for a number of years.  This approach had been taken to ensure that the 1998 Act was compatible with EU law.

Is it objectively and reasonably justified by a legitimate aim

In the case of R (on the application of the Incorporated Trustees of the National Council on Ageing) v Secretary of State for Business, Enterprise and Regulatory Reform [2009] E.C.R. I-1569, the Court of Justice accepted that a mandatory retirement age may be legitimate where there were social policy objectives to be satisfied. The Court of Justice went on to note that such a mandatory retirement age may not be permitted for “purely individual reasons particular to the employer’s situation such as cost reduction or a boost to competiveness”.

In the case of Nolan v. Quality Hotel Oranmore DEC-E2012-110 the Equality Officer criticised the Respondent’s failure to offer any objective justification for the mandatory retirement age. The Equality Officer had called on the Respondent to do so, both in writing and in person at the hearing and the Respondent failed to do so. It was held:

“4.15 To summarise, I am satisfied the complainant was unaware of the respondent’s compulsory retirement age as it was not written down in any of the documentation that she received nor did custom and practice apply as employees did not continue to work there until they were 65. When invited to give reasons as to why the respondent has a mandatory retirement age, they opted not to. Based on the totality of the evidence, I am satisfied that Ms Nolan has established a prima facie case of discriminatory dismissal on the grounds of age and Quality Hotel, Oranmore has failed to rebut it. For the avoidance of doubt, I am not saying that the respondent is not entitled to set a mandatory retirement age but that this requirement should be capable of being justified on objective and reasonable grounds.”

 

Furthermore, in the case of Furlong v. Applus Car Testing Service Ltd DEC-E2013-084 the Equality Tribunal found that there had been discrimination on the grounds of age where an employee was compulsorily retired. The Tribunal highlighted that the employer produced no evidence to support its assertion that the retirement could be objectively justified.

In the case of McPhillips v. ISS Facility Services DEC-E2013-042 the Equality Tribunal found that there had been discrimination on the grounds of age where an employee was told that he would be retired at the age of 65 and was then offered a one year fixed term contract up to the age of 66. The Equality Officer refused to accept that the employee had been validly placed on a fixed term contract and furthermore refused to accept that the mandatory retirement age applied.

In the matter of O’Neill v. Fairview Motors Limited, the Equality Officer followed the decision of the High Court in Donnellan.  In O’Neill, the Complainant worked for the Respondent as a motor mechanic, and brought a complaint pursuant to the Acts on the basis that he had been discriminated against in being denied access to training courses (which were afforded to younger mechanics) and in being compulsorily retired at the age of 66.  Despite holding that the Complainant was aware for a year prior to his compulsory retirement that the Respondent intended to compulsorily retire him at 66, the Equality Officer nevertheless held that he had been discriminated against and that the Respondent had failed to show any objective justification for same.  The Equality Officer duly awarded the Complainant the sum of €30,000 by way of compensation for distress suffered as a consequence of the discrimination.

If a Tribunal accepts that the Respondent dismissed a Complainant on grounds of his age, the Complainant has discharged the initial burden of proof required and the Respondent must rebut the inference of discrimination raised.

It then is for the Respondent to make some assertion or submission regarding the Complainant’s ability to do the job for which he was employed, his capacity or that there were some other objective grounds justifying the decision to dismiss the Complainant which might constitute legitimate aims in terms of Article 6 of the Framework Directive.  It would also be important to consider if the Respondent operated a strict compulsory retirement age in circumstances where it was able to ignore the Complainant’s age and extend the Complainant’s employment previously.

The means of achieving that aim must be appropriate and necessary

The second limb of the test is outlining that the aim was appropriate and necessary.

It is asserted that the means of achieving any aim asserted by the Respondent are not appropriate and necessary. It is of note that the Complainant would not be entitled to a state pension until he reached the age of 66. The Court of Justice has recognised the need to balance the legitimate aim with the hardship imposed on the worker. In the case of Gerhard Fuchs (C-159/10) and Peter Köhler (C-160/10) v Land Hessen the Court observed:

“In that regard, the Court has accepted that a measure that allows for the compulsory retirement of workers when they reach the age of 65 can meet the aim of encouraging recruitment and be regarded as not unduly prejudicing the legitimate claims of the workers concerned, if those workers are entitled to a pension the level of which cannot be regarded as unreasonable (see, to that effect, Palacios de la Villa , paragraph 73). The Court has also held, in regard to a measure requiring the automatic termination of employment contracts at that age, in a sector in which, according to the national court, that measure was liable to cause significant financial hardship to the worker concerned, that that measure did not go beyond what was necessary to achieve the desired aims, in particular the encouragement of recruitment. The Court took into account the fact that the worker was eligible for payment of a pension while at the same time remaining in the labour market and enjoying protection from discrimination on grounds of age (see, to that effect, Rosenbladt , paragraphs 73 to 76).

In the case of Donnellan v. Minister for Justice, Equality and Law Reform and others [2008] IEHC 467 the High Court emphasised that: “Any discrimination with regards to age must, as put by that Directive, serve a legitimate aim or purpose, and the means taken to achieve that purpose must be appropriate and should go no further than is necessary, i.e. they should be proportionate.”

Burden of Proof

In general, in order for a complainant’s allegation of discrimination to be upheld under the Employment Equality Act, 1998, he must show prima facie evidence of the discrimination. Once a prima facie case is established the burden of proof falls on the respondent to show that discrimination did not take place.

The Labour Court in this jurisdiction considered this evidential burden in Southern Health Board v Mitchell [2001] E.L.R. 201 and concluded as follows: [T]he complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.  It is only if these primary facts are established to the satisfaction of the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.”

Similarly, in the oft-cited case of Melbury Developments Ltd v. Valpeters EDA0917 the Labour Court held: “Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Court of Justice of the European Union has considered the standard of proof placed on a Member Stated when attempting to show that a difference in treatment was objectively justified in pursuance of a legitimate aim. The Court in the case of R (on the application of the Incorporated Trustees of the National Council on Ageing) v Secretary of State for Business, Enterprise and Regulatory Reform C-388/07 stated:  “However, it is important to note that the latter provision is addressed to the Member States and imposes on them, notwithstanding their broad discretion in matters of social policy, the burden of establishing to a high standard of proof the legitimacy of the aim pursued.”

It is submitted that a similar high standard of proof must be enforced on employers attempting to justify the dismissal of an employee on the grounds of their age. It is submitted that the case of Furlong v. Applus Car Testing Service Ltd DEC-E2013-084 discussed above applies to the effect that the Respondent must show detailed evidence to support any assertion of an objective justification in this case.

In Toker developments Ltd V Edgars Grods EDA10 the mere fact of a difference in status (in that case race) and the difference in treatment is in itself insufficient to shift the probative burden of proof and therefore there is a requirement to demonstrate actual discrimination “it would clearly be impermissible for the court to reach conclusions of facts based upon mere supposition or speculation”.  This was also confirmed in J.Ryan Haulage V Kostas Avizinis and  Madarassy V Nomura International plc 2007 IRLR 246.  A Claimant therefore must, in the first instance, establish facts from which it can be presumed that he was subjected to discriminatory treatment.  It is only when he has discharged that obligation to the satisfaction of the Equality Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised.

In conclusion, as already noted the provisions of the Acts provide that Discrimination shall be taken to occur where; “A person is treated less favourably than another is, has been, or would be treated in a comparable situation on any of the grounds specified in subsection 2.”  Therefore, what must be decided by an Adjudicator is whether a Claimant was less favourably treated in relation to their conditions of employment.  The burden of proof is detailed in Section 85A of the Acts which provides that should a Claimant establish facts by which it may be presumed that he suffered discrimination, it is for the respondent to prove the contrary.