McPhillips v ISS Facility Services

Issues: Age, retirement, whether or not a Fixed Term Contract existed, evidence of compulsory retirement age

In this case the complainant’s employer had changes following a TUPE and his newer employer indicated to him that he would be required to retire at the age of 65 but he was offered a fixed-term (FT) contract for another year.  The equality Officer noted that the derogation in section 6(3)(c) “is confined solely to a fixed term contract being offered to a person over the compulsory retirement age for that employment”.  There are two aspects to this.  The contract must be a fixed-term one and there must be a compulsory retirement age for the employment.  She decided, in the first place, that the contract offered for the complainant’s the final year was not a fixed-term contract.  “I consider that the complainant for the full period of his employment with the respondent was employed on a continuous successive permanent contract”.  She found that the complainant’s employment did not terminate due to the expiry of a fixed term contract.

The Equality Officer then addressed the matter of whether the retirement age was compulsory in the employment.  The respondent was unable to present any evidence that it operated a compulsory retirement age and was likewise unable to indicate that the complainant’s previous employer had operated a compulsory retirement age.  She was satisfied that no actual retirement age had been fixed for the complainant. 

The respondent chose not to present any arguments in respect of objective justification as “it would weaken its argument that the natural expiry of a fixed term contract is the only issue before the Equality Officer and that retirement age was not at issue in this case.”

The complainant was awarded €22,000 which roughly equated to a year’s salary. 

Why is this case of interest?

Can you show that any fixed term contracts granted to employees will be considered as such if reviewed as part of a claim?

If you want to assert that you have a fixed retirement date do your records and policies support this?

Where it is felt, as in this case, that the matter before the Tribunal is a specific one consider whether to present arguments in respect of objective justification in the alternative.