Reported in this month’s Irish Employment Law Journal is the interesting case of Sweeny v Aer Lingus Teo (DEC-E2013-135) which was delivered on October 23rd 2012. A link to the decision is found here. The dispute concerns a claim by Ms Elizabeth Sweeny that she was subjected to discriminatory treatment by the Respondent on the grounds of age in terms of Section 6(2) of the Employment Equality Act 1998 (as amended) and Section 8 of those Acts.
The Complainant stated that she had been employed by the Respondent from 25th September 1961 until 1st January 2008. She stated that she was informed in September 2007 that her retirement would commence on 1st January 2008. The Complainant challenged this on the basis that there was no retirement date set out in her contract of employment and the only reference to retirement dates concerned her pension benefits which she contended was separate to her employment contract. The Complainant stated that she was informed on 20th December 2007, despite her complaints, that she had to remove herself from the workplace within four working days on the grounds of age.The Complainant submitted that at no stage during her employment was mandatory retirement clearly communicated to her and at no stage did she expect to be facing compulsory retirement.
The Respondent contended that in every employee’s contract of employment, it was subject to an express or implied term that it ran until the normal retirement date, that is after attaining the age of 65. It further contended that the absence of an express reference to retirement dates did not mean that there was not an implied retirement date. Is further contended that it does not rely on the normal retirement date provided for in its pension scheme but rather it relies on the case of Delaney v Electrical Contractors Safety and Standard Association Limited (UD 1322/2003). In that case the Employment Appeals Tribunal explicitly dealt with the question of establishing a normal retirement date for the purposes of the Unfair Dismissal Acts and determined inter alia “….it is clear that the term normal retirement age means a definite or particular retirement age in the relevant employment”. The Respondent contended that its retirement age is well known to all staff including the complainant. The Respondent contended in any event that Section 34(4) of the Acts provide for the imposition of a normal retirement date and that it is not discriminatory and referred to the case of Palacios de la Villa v Cortefiel Servicios SA (Case C-411/05). The Respondent also cited the case of Donnellan v Minister for Justice, Equality and Law Reform (High Court  IEHC 467) where McKechnie J held that whilst national government’s could impose a retirement age by means of domestic legislation, that legislation must be “compatible and comfortable” with the Directive.
Findings and Conclusion of the Equality Officer
The Equality Officer determined that the Respondent had established that the retirement age for its non flying staff was 65 years of age even though no age was set out in the Complainant’s contract of employment. The Equality Officer noted that it was common practice for those employees reaching the age of 65 to retire and the Complainant was aware or ought reasonably to have been aware that 65 was the retirement age for non flying staff.
Whilst it was noted that there was “no doubt that the decision to retire someone at a particular age is a decision that is influences by that persons’ age” and that this had been held to be direct discrimination (Deutche Lufthansa AG v Gertraud Kumpan Case C-109/09 and others), the Respondent submitted that Section 34(4) of the Acts provided a defence in that it states inter alia “…..it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntary or compulsory) of employees or any class or description of employees”.
The Equality Officer referred to a series of cases that establish in both community and Irish law that a pension entitlement does not necessitate retirement. He concluded that
(a) the Complainant has established facts from which discrimination may be inferred and the onus to rebut the presumption is on the Defendant.
(b) In circumstances where there is an absence of justification, the Complainant is entitled to succeed.
The Equality Officer awarded the Complainant €5,000 in compensation for the effects of the discrimination suffered whilst taking into account that the Complainant has been in receipt of a full pension from the date of her retirement.