This case relates to a pilot employed by the respondent who, on approaching his sixtieth birthday was informed, by letter from the respondent, that he would be retiring on reaching that age.

The respondent asserted the complainant was sent an annual pension benefit statement from 1999 which informed him that his retirement age was 60. Also in 1999, the Irish Aviation Authority issued a new policy increasing the maximum age for licensed pilots to 65.

The Equality Officer found that the date of the “original occurrence” was 1999 when the complainant first received the pension notification, the more recent letters did not amount to a new occurrence and on that basis the claim was statute barred. The wording of the retirement correspondence is included in the Decision but the wording of the pension benefit notice is not although it would appear pivotal.

As always, the Equality Officer is likely to have had this information and appears to have concluded that the pension notice, (a pension related document and not a HR document) was sufficiently specific as to include a indication that the respondent required the complainant to retire at 60 as distinct from being in a position to draw down a pension at 60.

This case was further complicated in that the complainant was dismissed for gross misconduct two months in advance of his expected retirement date. The Equality Officer considers previous cases and states: “In all of the above authorities the “act of discrimination” was the retirement itself and not the notice of the pending retirement” and concludes that the ‘act of discrimination’, i.e. retirement, could never have occurred as the complainant was dismissed for gross misconduct.

However, as noted above the complaint was found to be statute barred as distinct from no discrimination having occurred. If it is being suggested that in respect of retirement issues, the only act of discrimination could be the retirement itself, this appears to neglect cases where, for example, a person is issued with a letter relating to compulsory retirement at 60 while colleagues in other roles are not issued with such letters.

In such cases, it could be asserted that the letters themselves were discriminatory i.e. less favourable treatment. Where this amounted to a prima facie case it would be for rebuttal by the respondent.

The second claim lodged by the complainant relates, as far as can be discerned, to the payment he received on dismissal from the employer who paid him the equivalent of the two months pay, the difference between his dismissal and retirement date, rather than have him disadvantaged in respect of his retirement.

He argued he should have been paid the amount to his 65th birthday and that to fail to do so was discriminatory. The Equality Officer goes on to consider that following his dismissal the complainant was no longer an employee although no discriminatory act following the dismissal appears to have been raised by the complainant.

Even so, the complainant was found to have no locus standi on the basis he was no longer an employee following his dismissal. An alternate view might be that the complainant was arguing that the payment, at the point of his dismissal, should have been larger to take account of the 5 years from his 60th to his 65th birthday.

The Equality Officer states that he argued his “actual loss would amount to five years salary”. It may be the allegation of discrimination relates directly to the amount of his gratuity payment at the point of dismissal and not to any event when he was no longer an employee. In circumstances where employees are dismissed for gross misconduct gratuity payments are not normally paid.

Therefore, it could be argued that the complainant in this case was in fact treated more favourably than others in similar circumstances and the concept of less favourable treatment does not arise meaning a prima facie case could not be established. The Decision notes at this point that both claims have failed.

Finally, the Equality Officer considered section 101(2) in a situation where proceedings for Unfair Dismissal (UD) were adjourned in the EAT. This section states, in circumstances where the person was dismissed before referring the equality case, they cannot seek redress under UD unless directed by the Director.

The Act is silent on what the Director might consider relevant to such a direction. To date, this provision has generally been considered as relevant only when dismissal claims have been lodged under both the equality and unfair dismissal legislation. There is no reference to a discriminatory dismissal claim in this Decision.

The ordinary meaning of the words in the provision suggests that an Equality Officer can base a Direction on any claim lodged under section 77(1) rather than a discriminatory dismissal claim specifically. In this case it appears that the existence of a claim of discriminatory treatment, rather than a discriminatory dismissal claim, has resulted in the complainant not having had the opportunity for a consideration of his actual dismissal at first instance.

However the Equality Officer proceeds to consider several issues as relevant to her decision not to ‘direct otherwise’ in accordance with the section including whether the employer was legally obliged to retain the complainant until the age of 65 and section 34(4). She concludes: “The question for this Tribunal is whether or not there is an obligation to interpret Section 34(4) in a manner consistent with Article 6 of the Directive?”

She considers horizontal direct effect and ultimately finds that the respondent was entitled to set a mandatory retirement age of 60 without the need to objectively justify that decision.This would appear to follow the LC decision in Hospira Finally it is stated that the Act remains silent in relation to the requirements as set out in Article 6.

This has since been addressed by a recent amendment to section 101. Indeed, note should be taken of the many amendments to section 101 in various pieces of legislation during 2015. The general situation appears to be that legacy cases (those lodged before 1 October 2015) and which have both discriminatory and unfair dismissals included will be handled by section 101(2) as in this case while those lodged subsequent to that date will be handled by the various versions of section 101(4) as it was amended. A temporary situation exists, therefore, permitting creative arguments in respect of dual claims lodged during the period of statutory change to section 101.

Why is this case of interest?

• Section 101(2) appears to have presented a second opportunity to address the retirement issue in circumstances where the claims were already decided.
• Was section 101(2) relevant in a situation where the complainant had not lodged a discriminatory dismissal claim?
• Section 34 has now been amended to require objective justification by the Equality (Misc. Provisions) Act 2015.
• Can pension notices amount to notices of mandatory retirement? Without knowledge of the wording of the notices in this case it is difficult to assess the broader application of this finding.