EDA0516

• 
  The complainant is aged in his early 50s. He worked as a bus driver with the respondent company from 1978 until he left on voluntary severance in November 2001. Prior to his departure, he asked to be considered for part-time Summer and/or school bus driving. He formally applied for such work in April 2002 and received a reply in May 2002 from the Area Manager informing him that the company did not, as a matter of policy, re-employ staff who left on voluntary severance.
  He complained to the Equality Authority who wrote to the Respondent Company querying the above policy. The Respondent Company replied, stating that the complainant had voluntarily retired under the terms of the Voluntary Severance Scheme (the VSS) as per a Company / Union Agreed Driver Change Programme, had severed his links with the Company and that it was policy across the C.I.E group of companies not to re-employ staff who had severed their links and accepted voluntary severance terms.
  
  On the 5th of November 2002, the complainant referred a complaint under the Act to the Director of Equality Investigations. He stated that he had been discriminated against on the age ground on the basis that that the vast majority of the workers who had availed of the VSS were aged 50 and above and the companies policy of not re-employing such workers was discriminatory on the age ground. On 26th of January 2004, the case was delegated to an Equality Officer for investigation. A joint hearing of the claims took place on 26th August 2004.
  
  On the 28th September 2004, the Equality Officer issued the following decision:
  
  “ I find that the respondent did not directly discriminate against the complainant on the age ground in terms of Section 6(2)(f) of the Employment Equality Act in relation to access to employment.”
  “I find that the Respondent indirectly discriminated against the complainant on the age ground in terms of section 31 of the Act in contravention of Section 8 of the Act in relation to access to employment.”
  
  “I hereby order that the respondent:
  • (i) treat the complainant in the same manner as any other applicant in relation to any application(s) he makes for the position of school bus driver or seasonal bus driver;
    
    (ii) pay to the complainant the sum of €3000.00 compensation for the effects of the act of discrimination (This award relates to compensation for distress and breach of rights under the 1998 Act and does not contain any element of lost income);
    
    (iii) immediately implement an Equality Policy which takes account of the provisions of the Employment Equality Acts, 1998-2004 and effectively communicate the policy to all those potentially affected by it including management and employees.
    
    By application to the Labour Court dated 5th November 2004, the Respondent Company appealed against this decision. A Labour Court hearing of the appeal was held in Donegal on the 27th May 2005.
    
    
    
    
    Appellant Company’s Arguments:

• • The appellants stated that the Equality Officer had found as a fact that the complainant had established a prima facie case of indirect discrimination on the basis that 96.5% of persons who availed of the VSS were over 50. The appellant accepted that the statistics were correct. The Equality officer therefore held that since the prohibition on returning to work with the company impacted more heavily on workers over 50 than those under 50 the complainant had established a prima facie case of indirect discrimination.
  However the appellants contended that the Equality Oficer had misdirected herself, in that she had not established the correct pool for comparison purposes. They contended that the correct pool which should have been looked was not the number of employees over 50 who had availed of the VSS but the number of employees over 50 who having availed of the VSS then actually applied for re-employment. They stated that 28 former employees availed of the VSS, and of those, 27 were aged 50 or more. Of those 27, only one applied for further employment with Bus Eireann. During 2003, there were 263 applicants for the type of position in question. There were 85 applicants over the age of 50. Only one applicant (the complainant) was excluded by virtue of not being able to comply with the provision/requirement in question. Therefore, in 2003, the proportion of prospective employees having the same relevant characteristic in question as the complainant (i.e.-being aged 50 +) who could not comply with the provision / requirement in question was only 1.2%.
  • The Appellants further contended that the Equality Officer had also found that it was not necessary to adduce statistical evidence to establish an unequal effect on the over 50 age group of the requirement. The Equality Officer in that regard relied on the decision of the Labour Court in Inoue v NBK Designs Limited ED/02/34 Determination No. 0212, 25th November 2002. That case concerned an allegation of indirect discrimination on the grounds of gender in circumstances where a part-time female employee had lost her employment when two part-time positions were merged into one full-time position. The Court in that case held that elaborate statistical evidence was not required to show that requiring an employee to work full-time indirectly impacted on a substantial proportion of female employees as the Court felt it could draw on its own knowledge and experience of the likely impact of requiring applicants for a position to be able to work full-time.
    
    The appellants contended that the Inoue could be distinguished on the basis that it involved discrimination on the grounds of gender whereas in the instant case, the issue is whether a substantial proportion of prospective employees for part-time school bus driving and/or seasonal bus driving positions to Bus Eireann were former employees of Bus Eireann aged 50 or over who had availed of voluntary severance. This situation is entirely distinguishable from the position in 'Inoue' and that the Equality Officer, therefore, accordingly erred in applying that approach to the facts of this case.
    
    The appellants contended that there was substantial statistical evidence before the Equality Officer to show that the impact of the requirement on those actually applying for positions with the company was minimal.
    
    
    
    It stated that the statistical evidence available ran entirely counter to the assumption implicit in the finding of the Equality Officer. In total, 563 persons applied for positions as part-time summer and /or seasonal bus drivers from the 16th of October 2001 to the 31st of December 2003 (205 part-time school bus drivers and 358 Summer seasonal). Of that number, 167 (91 part-time school bus drivers and 76 Summer seasonal) were aged 50 or over and of that latter number only one was an employee who had previously been made redundant pursuant to a voluntary severance package.
    
    The appellant further contended that the Equality Officer implicitly assumed that a substantial portion of prospective employees applying for positions as part-time school bus drivers and/or Summer seasonal bus drivers were aged 50 or over would have been previously former employees of Bus Eireann who left on voluntary severance packages. The only statements put forward to support that proposition was that older workers were more likely to have longer service and therefore to qualify for more substantial awards than younger colleagues and that 27 of the 28 employees who were made redundant on the voluntary severance package in question in this case were aged 50 or over. However those facts do not form a basis for the conclusion that a substantial portion ofprospectiveemployees for the position of part-time Summer and/or seasonal bus driver would therefore be former employees who have applied for voluntary severance.
    
    The appellants contended that their experience had been entirely contrary to the assumption made and/or implicit in the Equality Officer’s findings. It is very rare for former employees of Bus Eireann to subsequently apply for re-employment in the company. In addition the vast majority of the employees who are made redundant pursuant to the VSS under consideration in this case simply retire. Twenty two of the twenty eight availing of the scheme were in their 60’s; therefore in addition to receiving a very generous and significant lump sum as part of the voluntary severance package they received their pension entitlement immediately on retirement.
    
    The appellants contend that their experience, leaving aside the actual statistical evidence, is to the effect that employees who are made redundant pursuant to generous voluntary severance do not seek re-employment with Bus Eireann.
    
    Finally the appellants contended that even if the requirement were found to be discriminatory, there was objective justification for the requirement within the meaning of Section 31 (1) (d) of the Act.
    They advanced three grounds for this contention.
    

• • 
    Complainants Arguments:
    
    (1) The complainant contended that, of the 28 employees who availed of the VSS in 2001, 27 were aged 50 or above. Uncontroverted evidence was given that voluntary severance was offered to employees in order of seniority.
    
    (2) The complainant therefore contended that in offering voluntary severance to employees in order of seniority and in determining that such employees could not be re-employees by the respondent the Appellant was discriminating against those persons seeking to avail of the VSS 96% of whom were over the age of 50.
    
    (3) In relation to the claim that the requirement was objectively justified the complainant contended that it did not make sense to argue that the re-employment of the complainant as a part-time or seasonal driver would militate against the Driver Change Programme or on the Voluntary Severance Scheme, or would amount to an abuse of the Redundancy Payment Scheme. The requirements of the VSS and of the Redundancy Payment Scheme were either satisfied on the termination of the complainant’s employment or they were not. The subsequent re-employment of the complainant in a different position cannot affect that issue. It was the position which became redundant, not the occupant of it. The complainant merely wished to be in a position to apply for a vacancy in a different position. The respondent has therefore failed to show that its policy is reasonably justified. It has not identified the objectives of its policy nor has it demonstrated that the policy goes any further than is reasonably required for the attainment of that objective.
    
    The Law.
    
    It is the view if the Court that the requirement complained of cannot be directly discriminatory. It is on the face of it neutral. The two issues before the Court are whether the requirement companied of is indirectly discriminatory and if so whether it can be objectively justified.
    
    
    Section 31(1) of the Act states as follows;
    
    ‘‘(1) Subsections (1) and (1A) (inserted by section 13 of the Equality Act 2004) of section 22 apply, in relation to C and D as they apply in relation to A and B, with the modification that the reference in subsection (1) to persons of a particular gender (being As or Bs) is a reference to persons (being Cs or Ds) who differ in a respect mentioned in any paragraph of section 28(1) and with any other necessary modifications.’’

• • ‘‘(1) (a) Indirect discrimination occurs where an apparently neutral provision puts persons of a particular gender (being As or Bs) at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.
    
    (b) Where paragraph (a) applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to (including A or B), unless the provision is objectivelyjustified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
    
    (1A) In any proceedings statistics are admissible for the purpose of determining whether subsection (1) applies in relation to A or B.’’

• • Section 28states as follows:
    

    “(e)in relation to the age ground(discrimination occurs)where C and D are of different ages.

“althoughthere is quite a simple answer to the indirect discrimination point, it has become virtually impossible and almost unacceptable to decide points of this kind in short form.

The legal materials on indirect discrimination and equal pay are increasingly voluminous and incredibly intractable. The available arguments have become more convoluted, while continuing to multiply. Separating the wheat from the chaff takes more and more time. The short snappy decisions of the early days of the industrial tribunals have long since disappeared. They have been replaced by what truly are ‘extended reasons’ which have to grapple with factual situations of escalating complexity and with thicker seams of domestic and EC law, as interpreted in cascades of case law from the House of Lords and the European Court of Justice”

Article 141 does not define the test for determining indirect discrimination. There is no decision of the European Court of Justice or of the English Courts on the precise issue at the heart of this case: how to define the relevant pool of employees for the purposes of determining whether there is indirect discrimination. That is a matter for the National Court dealing with the case to decide.

However since the seminal case ofR V Secretary of State Ex parte Seymour Smith 1999 IRLR 253, the European Court of Justice has in a number of Gender cases given guidelines as to how a National Court should approach this issue.

InLewen v Denda[2000] IRLR 67, the ECJ said: “According to settled case law, indirect discrimination arises where a national measure ... works to the disadvantage of far more women than men.” InJ�mstallahetrsombudsmamen v Orebro Lans Landsting[2000] IRLR 421,it asked, is there “a substantially higher proportion of women than men in the disadvantaged group”? InSteinicke, it referred to “significantly more women than men ... are excluded”. InKruger V Kreiskrankenhaus Ebersberg[1999] IRLR 808, it said that the criterion was whether the rule “actually affects a considerably higher percentage of women than men”. InJ�rgensenVForeningen AF Speciallaegerer and Sygesikringens forhandlings sudvalg[2000] IRLR 726, the formulation was “once it is established that a measure adversely affects a much higher percentage of women than men, or vice versa, that measure will be presumed to constitute indirect discrimination on grounds of sex”. Most recently, inAllonby v Accrington and Rossendale College[2004] IRLR 224, the ECJ noted that “among the teachers who ... fulfil all the conditions except that of being employed under a contract of employment ... there is a much higher percentage of women than men”.

The appellants have stated that the correct approach for the Court to take is to identify the persons who actually applied for the position and to see how many of the excluded ex employees did so. They then contend that since 176 of the 563 people who had applied for the job were over 50 and only one of those was a person excluded because of the requirement, the impact of the impugned requirement in terms of age discrimination was minimal.

The Court however takes the view in this case this is not the correct approach to adopt. The focus in this case should in the Court’s view be on the disadvantaged group in line with the various decisions of the Court of Justice.

This focus on those who are adversely affected makes sense from a policy and legal standpoint. The purpose of indirect discrimination is to protect those who are disadvantaged, so that is where the primary focus should normally be. The effect of focusing on those applying for positions is to dilute the impact of the requirement on the excluded group. A pool for comparison must be a relevant pool.

The Court is of the view that the correct pool to take in this case is the pool of those excluded from the ability to apply for positions.However the correct pool for comparison purposes must be assessed in each case.

Given that 96.5% of those persons who availed of the VSS were over 50 years
of age, the impact of being disqualified from returning to work with the CIE companies having accepted voluntary severance must logically, bear more heavily on those in the 50+ age group than on those under 50 years of age. Therefore, in the view of the Court, the policy is indirectly discriminatory.

OBJECTIVE JUSTIFICATION

The Appellants argue that there is objective justification for the impugned practice under section 22 (1) (b). For this defence to succeed they must show, in the words of Section 22 (1) (b) of the Act, that the requirement is objectively justified by a legitimate aim of the enterprise and that the means chosen are appropriate and necessary. In support of this contention they state the following:-

• • 
    (iii) The D.C.P. and its associated Voluntary Severance Programme have contributed greatly over the years to individual harmony and financial stability in the Company. It is agreed with all the Company's main Trade Unions.
    
    (iv) the Respondent occasionally needs part-time school bus drivers or summer seasonal drivers. It was agreed with the Unions that the most cost-effective and efficient way to fill these positions was from within the existing work force. (PT 4.3 of the D.C.P.),
    
    (v) to allow drivers both to avail of the VSS and also to fill part-time school bus /summer seasonal vacancies would not only run contrary to the D.C.P. but might also be considered an abuse of the scheme under the Redundancy Payments Acts,
    
    
    
    • Bus Eireann submits that that in all the circumstances the policy can be objectively justified as reasonable in all the circumstances of the case within the meaning of Section 31(1)(d) of the Act.
    
    The Court has applied this test in the instant case:-
    
    (1)Does the requirement that persons availing of the Voluntary Severance Programme should not be able to reapply for employment with the company correspond to a legitimate aim on the part of the respondent?
    
    • On the evidence presented to it, the Court is satisfied that the necessity to maintain industrial relations harmony does constitute a legitimate aim on the part of the appellants. This does not mean that a collective agreement can be relied on per se as objective justification for a discriminatory practice. If however the objectives underlying the agreement do constitute a legitimate aim and are appropriate and necessary for achieving that aim then the impugned term in the agreement may be allowed to stand.
    
    (2)Were the means chosen appropriate and necessary?
    
    The Court is satisfied that the Company the means chosen in the particular circumstances of this case were appropriate. The main objectives were to promote industrial relations harmony and to ensure that relationships between their various employees were maintained on an even footing. The only appropriate and necessary means was to prohibit past employees who had availed of the VSS from returning to work for the company.
    
    Accordingly, the Court is satisfied that the impugned requirement is
    necessary and appropriate and is justified by objective factors unrelated to
    the age of the Complainant.
    
    Determination.
    
    While the Court is satisfied that the impugned provision is indirectly
    discriminatory on the age ground, in terms of Section 8 of the Act, in
    relation to access to employment, the Court determines that the
    provision is objectively justified, under Section 22 (1) (b) of the Act by
    the need for the appellants to maintain a stable and harmonious industrial
    relations between their employees and that the means chosen were appropriate
    and necessary.
    
    The Court, therefore, allows the appeal and sets aside the decision of the
    Equality Officer.