Ms. Bernadette Vickers
(Represented by Sherrys Solicitors)
vs
Daughters of Charity of St. Vincent de Paul
(Represented by IBEC)
1. DISPUTE
1.1 The dispute concerns a claim by Ms. Vickers that she has been subjected to discriminatory dismissal by the Daughters of Charity of St. Vincent de Paul on the grounds of age within the meaning of Sections 6(1) and 6(2) of the Employment Equality Acts, 1998-2004 when she was obliged to retire against her will on the last day of her 65th birthday.
2. BACKGROUND
2.1 The complainant was employed by the respondent organisation under a Community Employment Scheme which was funded by FÁS. It is her contention that she was dismissed on the last day of her 65th birthday for no reason other than her age. The respondent denies the allegation and argues that the complainant's continued employment was dependent on continued funding from FÁS.
2.2 Consequently the complainant referred her complaint of discriminatory dismissal to the Director of Equality Investigations on 20th July, 2005 under the provisions of the Employment Equality Acts, 1998-2004. In accordance with her powers under Section 75 of those Acts the Director then delegated the claim to Gerardine Coyle, Equality Officer on 17th November, 2006 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Following receipt of submissions a joint hearing took place on 22nd March, 2007.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant has been employed with the respondent organisation since 16th November, 1992. She was employed under a FÁS Sponsored Social Employment Scheme and her contract was renewed annually. The complainant states that after a number of years she was employed as a Community Employment Supervisor working 39 hours a week. At the time of her dismissal she was earning €423.00 net per week. The complainant was based at the respondent's Knockmaroon facility which provides services for persons with intellectual disabilities. According to the complainant many of the staff on the premises are employed as part of Community Employment Schemes and the complainant was their supervisor.
3.2 The complainant states that she was furnished with a contract of employment in September, 1999 in which it specified that her employment was as 'a Supervisor as part of the CES' and it provided that the period 'may be extended for a further period with the approval and funding from FÁS'. The contract stated that the provisions of the Unfair Dismissals Act, 1977 was not to apply to termination of the contract and it was silent on the issue of mandatory retirement or their being any retirement age. The complainant notes that the contract was renewed in January, 2002 and again by letter in June, 2003. It was not renewed thereafter and the complainant was 'retired' on 6th February, 2005 upon her attaining her 66th birthday. It is the complainant's submission that she received a letter from the respondent dated 24th January, 2005 wishing her 'all the best' in her impending retirement. The complainant, through her representative, wrote to the respondent pointing out that she was not aware of any mandatory retirement age, that the respondent's own policy was that continuation of employment depended entirely on capacity and capability and that she did not wish to retire and intended to continue to work so long as she retained capability and capacity. It is the complainant's contention that the purported reason for the respondent's dismissal is that by virtue of her age she is no longer eligible for sponsorship under a FÁS Community Employment Scheme and that FÁS 'have a mandatory retirement age of 65 years' and 'that employees on their project should leave the day before they reach 66 years'. The complainant notes that the respondent has also stated that in those circumstances, and in circumstances where they are funded by the Eastern Regional Health Authority, they are bound by Public Sector Guidelines and Legislation in the matter of mandatory retirement age.
3.3 The complainant states that it may seem that her termination of employment arose either on the grounds of retirement or because the fixed purpose of the contract had run its course and was not renewed. In terms of retirement the complainant says that there is nothing in her contract of employment to indicate that there is a fixed retirement age for employees and the respondent has indicated that it has no policy with regard to mandatory retirement. In these circumstances the complainant says that the saver in Section 34(4) of the Employment Equality Act, 1998 is inapplicable. The complainant notes that the respondent claims to rely on guidelines from the Department of Health and Children in the matter of the retirement age and she notes that the respondent has not furnished a copy of such guidelines which would have non-binding effect. The complainant argues that such guidelines cannot be said to overrule the statutory imperative as to non discrimination on the age ground and the stated policy of the Equality Authority to encourage the act of participation of older members of society in the workforce. In correspondence with the respondent the complainant notes that the respondent has pointed out that the provisions of the Public Service Superannuation (Miscellaneous Provisions Act), 2004 do not apply as the complainant's commencement of employment pre-dated that Act. The complainant says that it could be assumed that the respondent is arguing that she is a 'Civil Servant' subject to Section 8 of the Civil Service Regulation Act, 1956 but it is the complainant's belief that such an assertion can have no basis in reality.
3.4 It is the complainant's submission that her dismissal arose for one reason only namely the fact that she had attained her 66th birthday. The complainant notes that the respondent also suggests that the retirement/dismissal has been as a result of FÁS declining to renew funding for her continued employment but she submits that it is impermissible and unjustifiable for the respondent to rely on an argument of 'force majeure' to justify their discriminatory conduct. According to the complainant she has received no copies of correspondence received by the respondent from FÁS in relation to the matter and she says that the respondent has not cited or referred to any guidelines, scheme rules or legislation in that context. The complainant notes that the Labour Services Act, 1987 extensively outlines the principal functions of FÁS and that such functions at no stage make any reference to the beneficiaries of its functions being limited to persons of a particular age category.
3.5 The complainant notes the recommendations from the Equality Authority which formed part of the Forum Report issued by the National Economic and Social Forum1. At paragraph 6.1 and 6.5 the Authority drew specific attention to the importance of removing obstacles to older persons remaining in employment past usual retirement age of 65 years and further recommended that FÁS 'in its placement work should seek to attract older clients under or over 65 offering themselves for employment whether that is for full-time or more flexible attendance patterns'. It is the complainant's submission that the sole reason for the termination of her employment was her age and there is no objective criterion for the maintenance of such a policy. The complainant notes that the respondent has conceded that in all respects she had the necessary capabilities and capacity.
3.6 The complainant seeks redress by way of compensation for wrongful dismissal on the age ground.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent states that it is one of the largest service providers in the Intellectual Disability sector that provides a number of day, residential, community based and sheltered workshops to clients with intellectual disabilities in Limerick and Dublin.
4.2 The respondent states that the complainant was employed under a FÁS sponsored Community Employment Scheme and her contract was renewed annually. It rejects the complainant's contention that her contract was terminated unilaterally on her reaching her 66th birthday. Rather due to the nature of the complainant's employment under the Community Employment Scheme the respondent says that it was restricted in maintaining her continuing employment. It is the respondent's position that there is no basis to the claim of discrimination on the grounds of age in relation to the conclusion of the complainant's employment. The complainant was employed with the respondent through the FÁS administered Community Employment Scheme and as such specific conditions in relation to the continuance of this post were applied by FÁS.
4.3 According to the respondent the complainant worked as a supervisor on the specific scheme based in the respondent organisation and she was paid through FÁS, inclusive of PRSI. The funding for the complainant's post came directly from FÁS and the sustaining of this post was directly dependent on this funding continuing. The respondent states that the complainant was issued with a contract of employment in September, 1999 which set out her terms and conditions of employment. According to the respondent this contract reflected the core conditions of her employment but did not refer to a mandatory retirement age as the complainant would not be contributing to the respondent's pension scheme and the retirement element of her employment would fall into the jurisdiction of the continuous funding arrangement with FÁS for this post. The respondent states that its position is that the complainant's capability and performance were never called into question or formed the basis for the decision to discontinue her employment. Rather the complainant was always considered an effective and valued member of staff.
4.4 The respondent states that the sole reason why the complainant's employment was concluded in the respondent organisation was on the basis that it is the policy of FÁS not to fund Community Employment positions beyond the last day of their 65th birthday. Correspondence from FÁS clearly states:
"In line with Government policy, participation on employment schemes has an upper age limit of 65 years of age, i.e. FÁS may provide funds to community based employers to cover participant costs until the day before their 66th birthday (at which point entitlement to a state pension becomes available)".
The respondent states that this clearly outlines the funding conditions set down by FÁS in relation to the continuance of Community Employment Schemes which organisations such as the respondent organisation must adhere to.
4.5 In conclusion the respondent states that there is no basis for a claim of discrimination on the grounds of age concerning the termination of the complainant's employment with the respondent organisation. The respondent says that the complainant was a valuable member of staff but her continued employment was always going to be dependent on funding from FÁS. It is the respondent's position that participation in the workplace by senior citizens should be encouraged and supported but it is unfair that the respondent organisation should be held accountable for a policy that has been adopted by another organisation (in this case namely FÁS). The respondent asks the Equality Officer to reject the claim that there was any basis of discrimination for the termination of the complainant's employment with the organisation. This was a FÁS funded scheme and the respondent was merely acting in compliance with FÁS policy.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issue for decision in this claim is whether or not the complainant was subjected to discriminatory dismissal by the respondent within the meaning of Section 6 of the Employment Equality Acts, 1998-2004 on the grounds of her age. In making my decision in this claim I have taken into account all the submissions, both written and oral, from the parties.
5.2 The complainant was employed by the respondent as a Supervisor under a FÁS Community Employment Scheme and the salary she received was totally funded by FÁS. It is the complainant's contention that she was forced to retire on the last day of her 65th birthday and that this amounted to discriminatory dismissal on the grounds of age. The respondent rejects this allegation stating that it could no longer continue to employ the complainant as funding was no longer forthcoming from FÁS.
5.3 At the hearing of this claim the complainant stated that the FÁS policy in respect of retirement was discriminatory and she suggested that the issue to be addressed was whether or not an employer is obliged to enforce and apply discriminatory policies of another organisation. It was the complainant's contention that the employer cannot breach a statutory obligation and she stated that the respondent should have pursued the issue with FÁS or continued her employment. The complainant noted that she received no response from the respondent to any of the statutory forms she completed seeking additional information and she asked that the Equality Officer draw inferences from this fact. At the hearing of this claim the complainant sought compensation as opposed to re-instatement and asked that she be reimbursed for loss of earnings in the amount of €46,530 (i.e. salary of €423 per week for a period of 110 weeks).
5.4 I am satisfied that the complainant was employed by the respondent. However her employment by the respondent was under the provisions of the Community Employment Scheme and on the premise that funding would be received from FÁS to permit her continued employment. When the complainant reached the last day of her 65th birthday FÁS ceased funding her on the Community Employment Scheme in accordance with the rules of the scheme. Under that Scheme FÁS has clearly stated that:
"In line with Government policy, participation on employment schemes has an upper age limit of 65 years of age i.e. FÁS may provide funds to community based employers to cover participant costs until the day before their 66th birthday (at which point entitlement to a state pension becomes available)"
Consequently when the funding ceased the respondent could no longer retain the complainant in its employment.
5.5 It should be noted that Section 34(4) of the Employment Equality Acts, 1998-2004 provide:
"... it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntary or compulsorily) of employees or any class or description of employee".
In these circumstances the respondent was not enforcing a discriminatory policy of another organisation.
5.6 For its part the respondent has no mandatory retirement age but rather retirement is determined by an employee's capability and performance. While the respondent had no difficulty with the complainant's capability or performance it could not retain her in employment in the absence of funding from FÁS. In these circumstances I find that the complainant was not subject to discriminatory dismissal by the respondent on the grounds of age as alleged.
6. DECISION
6.1 In view of the foregoing I find that the Daughters of Charity of St. Vincent de Paul did not subject Ms. Vickers to discriminatory dismissal in accordance with the provisions of Section 6 of the Employment Equality Acts, 1998-2004.
______________________
Gerardine Coyle
Equality Officer
4th April, 2007
1. Forum Report No. 29 published in July, 2003