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Latest in Employment Law>Case Law>Elizabethe Sweeny v Aer Lingus Teo [2012]
Elizabethe Sweeny v Aer Lingus Teo [2012]
Published on: 08/02/2013
Issues Covered: Dismissal Discrimination
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Background

This is another retirement age case, which have been increasing in occurrence of late. The complainant had been employed since the 1960s. She had also been a trustee of the employer’s pension fund. She was dismissed at the age of 65. The Tribunal accepted that, although her contract of employment was silent on retirement age, there was an implied term that the retirement age should be 65 for non-flying staff. Most non-flying staff retired before this retirement age. Only one had been kept on past 65 in the previous 10 years, for specific purposes involving the handover of duties. Through her role as a pension trustee, she was aware of the retirement policy of the employer.

The tribunal concluded that this was a case of direct age discrimination and considered the well-known arguments around Section 34(4) of the Acts. It decided that a retirement age still required justification, in line with the requirements of the Framework Directive 2000. In this case, the only justification provided by the employer was that “it would be perverse that the independent trustee of the pension scheme could pay pension benefits from a normal retirement date (under the scheme) while an employee continued to draw his or her salary from the respondent.”

However the Tribunal drew on EU Court of Justice cases, Case 262/84 Vera Mia Beets-Proper v Van Lanschot Bankiers NV [1986] ECR 773 and Case 152/84 Marshall v. Southampton and South West Hampshire Area Health Authority [1986] ECR 723) and Irish cases, Howell v JJ. McCreery (Case No. UDA654/2007) January 3, 2008, Donegal County Council v Porter (1993) E.L.R 101 and Bannon v Two Way International Freight Services Limited (Case No. UD127/2003). It concluded that “a pension entitlement does not necessitate retirement”.

Therefore the complainant succeeded in her claim. In light of the fact that she had received her pension since being dismissed, she was awarded €5,000 in compensation for the effects of the discrimination suffered.

Here again, the Tribunal is imposing strict conditions on the establishment of justification for the application of a retirement age. It appears necessary to conduct a specific exercise of determining a retirement age and to have a paper trail justifying that retirement age.


http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-135-Full-Case-Report.html 

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Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 08/02/2013
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