Ms. Eileen M. McEvoy
(Represented by Linda McEvoy, Solicitor)
vs
Board of Management, Mount Temple Comprehensive School
SUMMARY
Ms. McEvoy (complainant) Represented by Linda McEvoy, Solicitor vs Board of Management, Mount Temple Comprehensive School (respondent) Represented by Arthur O'Hagan Solicitors
Equality Officer Decision DEC-E2006-060 (Coyle G.) 28th November, 2006
Employment Equality Act, 1998 Sections 6 and 8 - Employment - Discriminatory Dismissal - Age
Background:
The complainant was employed as a permanent wholetime teacher with the respondent organisation until her compulsory retirement on 31st August, 2004. The complainant did not want to retire but was required to do so under the provisions of the Secondary Teachers' Superannuation Scheme, 1929. However the provisions of the Public Service Superannuation Scheme (Miscellaneous Provisions) Act, 2004 came into effect on 1st April, 2004. Under this new legislation the complainant could re-enter the public service as a "new entrant" with no compulsory retirement age following the expiration of a 26 week period from her retirement date. The respondent advertised the complainant's position (among others) in April, 2004 following receipt of notification from the Department of Education and Science about the complainant's impending retirement. It is the complainant's contention that the respondent discriminated against her on the grounds of age and subjected her to discriminatory dismissal on the grounds of age when it did not afford her the opportunity to re-apply for the position she held prior to her retirement. The respondent has denied the allegations.
Conclusions and Decision:
The Equality Officer held that there was no evidence to support the complainant's contention that she had been discriminated against on the grounds of age or that she had been subjected to a discriminatory dismissal on the grounds of age when she was not afforded the opportunity of re-applying for the position she held prior to her retirement.
1. DISPUTE
1.1 The dispute concerns a claim by Ms. McEvoy that she was discriminated against and dismissed by the Board of Management of Mount Temple Comprehensive School, Malahide on the grounds of age within the meaning of Sections 6(2) of the Employment Equality Acts, 1998-2004 and contrary to Section 8 and Section 77(1) of those Acts.
1.2 The complainant referred her complaint of discriminatory dismissal to the Director of Equality Investigations on 22nd February, 2005 under the Employment Equality Acts, 1998-2004. In accordance with her powers under Section 75 of that Act the Director then delegated the claim to Gerardine Coyle, Equality Officer on 12th September, 2006 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. As submissions had been received from both parties a joint hearing took place on 27th September, 2006. Additional information was received from both parties with the final information being received on 14th November, 2006.
2. BACKGROUND
2.1 The complainant was employed as a permanent whole-time teacher of commercial and secretarial subjects by the respondent until the termination of her employment on 31st August, 2004. On 20th July, 2004 she reached the age of 65. The complainant received correspondence from the respondent dated 25th June, 2004 stating that it had been informed of her impending retirement and correspondence dated 30th June, 2004 stating that the respondent had appointed a female to replace her in her area of Business in the School. The complainant (through her representative) informed the respondent that she had no intention of retiring and had not informed anyone to such effect. On 31st August, 2004 payment to the complainant unilaterally ceased and she received no further communication from the respondent in respect of timetabling or preparatory meetings for the academic year 2004/2005.
2.2 The complainant notes that the Secondary Teachers' Superannuation Scheme 1929 sets a retirement age of 65 years of age. The Public Service Superannuation Scheme (Miscellaneous Provisions) Act, 2004 abolishes compulsory retirement age in the case of "new entrants" to most branches of the public service (including teaching) as and from 1st April, 2004. According to the complainant she would be required to compulsory retire on 31st August, 2004 but would be entitled to re-enter the public service as a "new entrant" (with no compulsory retirement age and all benefits ancillary thereto) following the expiration of a twenty six week period from retirement date.
2.3 It is the complainant's contention that she was discriminated against on the basis of her age by the respondent's appointment of a replacement for the complainant prior to 31st August, 2004 without consulting her; the respondent's failure to advertise the complainant's post upon the cessation of her employment on 31st August, 2004 thus debarring her from applying for re-appointment and the respondent's failure to advertise a comparable position within the six month period commencing 31st August, 2004 to which she could be re-appointed under a new contract of employment. The complainant, therefore, seeks maximum compensation based on her projected loss of income resulting from the termination of her employment by the respondent.
2.4 In its response the respondent notes that the complainant has acknowledged that the Secondary Teachers' Superannuation Scheme sets a retirement age of 65 years for members and the Public Service Superannuation (Miscellaneous Provisions) Act, 2004 abolishes compulsory retirement age only in the case of "new entrants" to most branches of the public service including teachers. According to the respondent as the complainant was not a "new entrant" she was required to retire on 31st August, 2004. The respondent notes that the complainant was informed by the Department of Education and Science of her impending retirement in March, 2004 and the Department informed the respondent of this retirement in June, 2004 in accordance with normal custom and practice. (At the hearing of this claim the respondent confirmed that the Department of Education and Science had informed it of the complainant's impending retirement in March, 2004 at the same time as the complainant was notified.) In accordance with normal procedures the respondent advertised and recruited for the position to replace the complainant. As the complainant was not a "new entrant" the respondent could not apply the terms of the 2004 Act to her employment. It is the respondent's submission that at no time did it digress from established procedures or custom and practice in their treatment of the complainant. Rather it acted at all times under the guidelines and instructions of the Department of Education and Science.
3. CONCLUSIONS OF THE EQUALITY OFFICER
3.1 The issue for decision in this claim is whether or not the complainant was discriminated against and dismissed by the respondent on the grounds of her age within the meaning of Sections 6(2) of the Employment Equality Acts, 1998-2004. In making my decision in this claim I have taken into account all the submissions, both written and oral, from the parties.
3.2 It is a fact that the complainant, on attaining the age of 65, was required to retire in accordance with paragraph 17(2) of the Secondary Teachers' Superannuation Scheme, 1929. Special provisions applicable to teachers allow service to continue until the end of the school year in which the age of 65 is attained. The complainant reached the age of 65 on 20th July, 2004 and as a result her retirement was effective from 31st August, 2004. I note that it is not unlawful under the Employment Equality Act, 1998-2004 for employers to fix the age of retirement (Section 34 refers).
3.3 It is the complainant's contention that the Public Service Superannuation (Miscellaneous Provisions) Act, 2004 which came into operation on 1st April, 2004 had as one of its purposes the removal of the compulsory retirement age for certain categories of new entrants into the Public Service on or after 1st April, 2004. Section 2(6) of this Act provides as follows:
"Where on or after 1 April 2004 a public servant who is not a new entrant ceases to serve in a public service body ... and does so otherwise than for employment in another public service body ..., then that person shall, if he or she subsequently applies for an office or position within the public service, be treated as a new entrant in respect of such subsequent service unless he or she takes up appointment -
(a) under the same contract of employment, or
(b) as a public servant no later than 26 weeks following the last day of service prior to cessation".
The complainant submits that the respondent, while aware of this legislation, proceeded to advertise her position in April, 2006 without advising her of this advertisement and, thereby, failing to afford her the opportunity of applying for re-appointment to her position.
3.4 The fact is that the complainant was required to retire at the age of 65. Under the provisions of the Public Service Superannuation (Miscellaneous Provisions) Act, 2004 the complainant would be entitled to re-enter the Public Service as a "new entrant" (with no compulsory retirement age and all benefits ancillary thereto) following the expiration of a 26 week period from such retirement date. I note that the respondent was first notified of the complainant's impending retirement by letter dated 9th March, 2004 by the Department of Education and Science. The respondent advertised the complainant's position, along with a number of other positions, in April, 2004. The advertisement for these positions was approved by the Board of Management at a meeting on 30th March, 2004 and the advertisement was placed in the Sunday Independent on 18th April, 2004. I note that the respondent followed the Department of Education and Science guidelines (which had been agreed between the Department of Education and Science, the Managerial Representatives of the Boards of Management and the Unions) regarding the advertising of vacant positions. According to the complainant she was not aware of this advertisement. The respondent stated at the hearing of this claim that staff would not be formally notified about vacancies which were being advertised. However a staff representative was present at the Board of Management meeting at which it was agreed to advertise these posts and the respondent stated that it is expected that the staff representative would keep staff members informed about matters arising at Board of Management meetings. I accept that the staff representative would not necessarily have known that the complainant was due to retire but, after the Board of Management meeting she was aware that a position in the complainant's teaching discipline was to be advertised. There is no reason why the staff representative could not have informed the complainant of this fact.
3.5 The complainant's position was vacant in the respondent organisation for the 2004/2005 academic year. The respondent was obliged to fill that position and commenced that process in April, 2004. The complainant did not apply. The complainant, had she been aware of the advertisement, could have applied for the position and she would have been subject to the same selection process as all other applicants. However in any application that the complainant would have made she would have to indicate that she would not be in a position to fill the position for 26 weeks after her retirement commenced. In all probability she would, therefore, be at a distinct disadvantage to other candidates. At the hearing of this claim it was argued by the complainant that she was estopped from applying for her own position and that this was a form of dismissal. I cannot accept that this was the case. If the respondent had not advertised her position until such time as the complainant would have been able to take it up then it could be argued that the respondent was discriminating against others on the grounds of age in favour of the complainant. From the practical perspective of school management and the education of the children in attendance the filling of the complainant's position on a temporary basis for six months on the basis that the complainant might be successful in her application is not and could not be deemed to be acceptable.
3.6 The complainant argued that, on the basis of custom and practice, the person appointed to her position should have been appointed on a temporary basis where this person was new to the respondent organisation. It is the complainant's submission that when the position is subsequently being made permanent, it is again advertised and the incumbent may or may not be appointed to the permanent position. The complainant stated that if her position had been filled on this basis then the respondent would have had to advertise it as a permanent position and she could have applied and, at the same time, met the requirement of having been absent from employment for 26 weeks. The respondent noted that the person appointed to replace the complainant was appointed to a Permanent Wholetime Post because the complainant had vacated a Permanent Wholetime Post within quota for the respondent organisation. I note that of the nine positions filled in the respondent organisation for the academic year 2004/2005 a total of four were filled on a Permanent Wholetime basis.
4. DECISION
4.1 In view of the foregoing I find that the Board of Management, Mount Temple Comprehensive School, Malahide did not discriminate against Ms. McEvoy on the grounds of her age within the meaning of Sections 6(1) and 6(2)(f) of the Employment Equality Acts, 1998-2004 and contrary to the provisions of Section 8 of those Acts.
4.2 I further find that the Board of Management, Mount Temple Comprehensive School, Malahide did not subject the complainant to discriminatory dismissal under the Employment Equality Acts, 1998-2004.
______________________
Gerardine Coyle
Equality Officer
28th November, 2006