Irish Rail has been ordered to pay compensation for ageist discrimination against a former level crossing guard after a tribunal concluded he was let go "for no reason other than his age".
The Workplace Relations Commission (WRC) made the award to the worker, Brendan Connor, on foot of a complaint against the national rail operator under the Employment Equality Act 1998, in a decision published today.
The tribunal heard Mr Connor had joined Irish Rail in March 2000, when he was already over 50, and so could not join the company's pension scheme. After the level crossing he was staffing at Claremorris, Co Mayo was automated in 2017, he began working at Westport Railway Station, on an "as required" basis doing cleaning duties and covering for absent staff, the WRC noted.
Mr Connor’s case was that he had turned down a voluntary severance package offered to him in 2021, worth over €75,000, "on the understanding that he could work until age 70". The following year, he was transferred to Westport but remained on his salary as a gatekeeper, it was submitted.
Then in 2023, he received a letter of dismissal on the basis that he had reached retirement age at 66.
Mr Connor’s barrister, Stephen O’Sullivan BL, appearing instructed by Denis O’Mahony of Gallagher McCartney Barry Solicitors, submitted that the retirement age for a worker in his client’s position was not 66, but 70.
His client’s case was that there was an "express or implied agreement by custom and practice that gatekeepers who were not a member of the Irish Rail pension scheme could work until 70".
Mr O’Sullivan submitted that in a previous case brought to the WRC by his client in 2016 in connection with access to the company pension scheme, Irish Rail had told the adjudicator that Mr Connor "has an option to remain working until 70".
Counsel also produced correspondence with a Siptu official dating to 2006 referring to a directive that Irish Rail gatekeepers "must retire when they reach 70" – as well as a letter to a colleague of Mr Connors in 2017 stating that gatekeepers "may work until age 70 provided they are medically fit and there is a role for them".
Mr O’Sullivan then pointed to 2022 correspondence sent by the Irish Rail industrial relations manager John Brosnan setting out an additional requirement of fitness to work: that there was "a level crossing still open".
The barrister argued that this contradicted the earlier position taken by Irish Rail HR and called on the company to "put before the WRC all correspondence or agreements pertaining to retirement age", as his client disputed the final condition.
"It is clear that if the complainant was younger than 66, he would not have been dismissed. Age was the sole reason for the termination," Mr O’Sullivan said.
Mr Connor named two gatekeepers he said had been allowed to work on past 66, one man who retired from operating a level crossing at 70, and another who continued work at a level crossing until he reached 67 and the crossing was automated, after which he was given cleaning duties at a station.
A third gatekeeper had received voluntary severance based on a retirement age of 70, he said, while a fourth worker – the only other Irish Rail gatekeeper "left in the West or Ireland", was aged 62 and had been given cleaning duties.
Irish Rail contended that Mr Connor had been "deemed unfit for all safety critical roles" by its chief medical officer in 2019 and had been required to redeploy, retrain or take voluntary severance in 2021 because of the closure of the level crossing.
The complainant’s appointment to work in Westport was on a "red circle" basis, leaving him in receipt of his existing pay but taking on the terms and conditions of his new job, it argued.
Mr Brosnan, the Irish Rail industrial relations officer, submitted: "The complainant was not selected for retirement. He retired upon reaching the mandatory retirement age for his role".
"There is a mandatory retirement age for all staff to ensure that they are able to perform their roles safely to safeguard their colleagues and members of the travelling public," he added in his submission. This was provided for in a collective agreement, it was further submitted.
Adjudicator Janet Hughes wrote in her decision that Irish Rail was "attempting to apply a wholly different collective agreement to the complainant" which referred to the retirement age of pensionable staff.
"The terms and conditions of the complainant were determined by an entirely separate and unique collective agreement involving the category of level crossing keeper with particular reference to those who were not in membership of the pension scheme," she wrote.
As Irish Rail "did not provide certain information" on the circumstances of comparative staff referred to by Mr Connor, Ms Hughes said her view was that there was "no person who was compulsorily retired at age 65 or 66" in the complainant’s circumstances.
"The treatment of the complainant stands out as unique, and the most disadvantageous compared to other employees who were active or former gatekeepers," she wrote.
This was "for no reason other than his age," she found. "No objective reason to justify that decision has been advanced such as to overcome the burden of proof test in the Employment Equality Act," she added, finding Irish Rail in breach.
In setting redress, Ms Hughes took account of the fact that Irish Rail had given Mr Connors notice "of sorts" a year before the termination that it believed his retirement year was to be 66, but noted that he did not refer a grievance.
Setting compensation for the age-related discrimination, Ms Hughes did not specify an exact figure, but directed Irish Rail to pay Mr Connor a lump sum "equivalent to statutory redundancy" with an "additional provision for a period of pay in lieu of notice based on the service-related statutory provisions".
