FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : MOUNT TEMPLE COMPREHENSIVE SCHOOL (REPRESENTED BY ARTHUR O'HAGAN SOLICITORS) - AND - EILEEN MCEVOY (REPRESENTED BY LINDA MCEVOY SOLICITORS) DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal Under Section 83 Of The Employment Equality Act, 1998 Dec-E2006-060
BACKGROUND:
2. A Labour Court hearing took place on the 26th June, 2007 in accordance with Section 83 of the Employment Equality Act, 1998. The following is the Court's Determination:
DETERMINATION:
The Complainant is a retired Teacher. The Respondent is her former employer. The Complainant was compulsorily retired on 31st August 2004 having reached the age of 65. She sought to re-enter employment with the Respondent pursuant to an arrangement whereby retired teachers may apply to resume wholetime teaching after the expiry of 26 weeks from their retirement date. Upon the Complainant’s retirement the Respondent filled her former post on a permanent basis. This, the Complainant contends, deprived her of the opportunity to apply for the post after the expiry of the prescribed period.
The Complainant believes that the actions of the Respondent, which deprived her of the opportunity to apply for reemployment in her former post, constituted an act of discrimination on the Age ground. She presented a complaint to the Equality Tribunal pursuant to S.77 of the Employment Equality Acts 1998 and 2004 (the Act). The complaint was investigated by an Equality Officer who found against the Complainant. It is against this decision that she appealed to this Court.
Material Facts:
The material facts as admitted or as found by the Court can be summarised as follows:
The Complainant was employed by the Respondent as a wholetime teacher until her retirement. She did not wish to retire but was required to do so under the provisions of the Secondary Teachers Superannuation Scheme 1929. This scheme prescribes a compulsory retirement age of 65.
The Public Service Superannuation (Miscellaneous Provisions) Act 2004 came into effect on the 1st April 2004. In so far as is relevant for the present purposes this Act allows a person in the circumstances of the Complainant to apply to re-enter the public service as a new entrant after the expiry of 26 weeks from their date of retirement. A person who is reappointed under this provision is not then subject to a compulsory retirement date.
In or about March 2004 the Complainant spoke to a member of the Board of Management of the Respondent and informed him of her desire to remain in her employment beyond her retirement date. She understood that this person would make her position in that regard known to the relevant school authorities.
In or about April 2004 the Respondent became aware of the Complainant’s impending retirement. It took steps to fill her position and to that end it advertised for either a wholetime or temporary teacher of Business Studies.
By letter dated 25th June 2004 the Complainant was advised by the Respondent of her retirement date. By further letter dated 30th June 2004 the Complainant was informed by the Respondent that another teacher had been appointed to replace her with effect from the commencement of the next academic year. In response to these communications the Complainant, through her Solicitor, informed the Respondent that she did not intend to retire. There were no further communications between the Complainant and the Respondent in the matter but her salary ceased with effect from 31st August 2004 and she thereafter was in receipt of a pension.
It was not unusual for the school to fill a position on a temporary basis if the successful applicant was newly qualified or inexperienced although this was not the universal practice.
The person appointed to the disputed post had taken the examinations leading to the award of the H.Dip ED qualification but had not received the results of the examination at the time of her appointment.
The position of the parties
The Complainant
The Complainant contends that in filling the vacancies occasioned by her retirement on a permanent basis the Respondent deprived her of the opportunity to reapply for her former post. This, she submitted was an act of discrimination on the age ground.
In evidence the Complainant told the Court of the history of her employment with the Respondent and of the circumstances in which she became aware of impending changes in the Superannuation regulations applicable to public servants. She said that she did not wish to retire at age 65 and made her position in that regard known to a member of the Board of Management of the School.
The Complainant further testified that, in her experience, newly recruited teachers who had not yet obtained a H.Dip ED qualification were always appointed by the Respondent on a temporary basis after which the post was again opened to competition. She said that if that practice had been followed in filling the disputed post she could have reapplied at the point at which a permanent appointment was to be made.
The Respondent
The Respondent denied that its decision to make a permanent appointment to the vacant post was calculated to prevent the Complainant from applying for the post when she became eligible to do so after the expiry of 26 weeks from her retirement date.
Dr Jones, who is Chairperson of the Board of the Respondent School, gave evidence gave evidence before the Court. He said that he had
chaired the Interview Board for a number of advertised positions (including this one) over a two-day period at the time of Summer 2004. He gave details of the composition of the Interview Board, which was a subset of the School Board of Management.
The witness told the Court that he was unaware of the specific provisions of the Public Service Superannuation (Miscellaneous Provisions) Act 2004. He said that he was unaware that the Complainant could have applied for appointment as a “new entrant” 6 months after her retirement.
The witness further testified that the Interview Board was unanimous that the person selected for appointment was an excellent mature candidate who would make a very suitable appointment, assuming that she was successful in her H.Dip ED exams. The Court was told that the Interview Board felt that, having regard to her calibre and experience, the successful candidate should be offered appointment on a permanent basis.
Dr Jones told the Court that, arising from the selection process in question, two other teachers were offered permanent appointments. In both cases the appointees had sat the examination for the H.Dips.but had not received the results.
Statutory Provisions
Section 34(4) of the Act provides as follows: -
- (4) Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees.
EU Directive 2000/78/EC of 27th November 2000 establishes a general framework for equal treatment in employment and occupation. Article 1 recites that the the purpose the Directive is to lay down a general framework for combating discrimination on the various grounds as regards employment and occupation. The concept of discrimination is not set out at Article 2.
Article 6(1) provides that member states may provide that differences of treatment on gender or age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that are appropriate and necessary.
It is well settled that the domestic law must be interpreted and applied in light of the wording and purpose of a relevant provision of a Directive so as to achieve the object pursued by the DirectiveseeMarleasing S.A. v La Commercial Internacional de Malimentacion S.A.ECR 4135).
Conclusions of the Court
The Complainant does not contend that her forced retirement was an act of discriminationper se. Any such contention would clearly be unsustainable having regard to s 34(4) of the Act, which comports fully with the relevant provisions of Community law. Rather, the import of the Complainant’s case is that the Respondent should have made a temporary appointment to the vacancy occasioned by her retirement so as to enable her to reapply for her former post as a new entrant on becoming eligible to do so. In order for the Complainant to succeed in that claim it would be necessary to impute to the Respondent an intention to prevent the her from reapplying for appointment to her former post. It would be further necessary for the Court to infer that the decision to make a permanent appointment was calculated to achieve that end.
In order to succeed in a claim of discrimination a Complainant must first establish, as a matter of probability, facts from which discrimination may be inferred. It is only if such facts are established that the probative burden shifts to the Respondent. If the requisite evidentiary facts are not established the Complainant cannot succeed. While this is a jurisprudential procedural rule established in the case law of the ECJ it is now enshrined in statute at s 85A of the Employment Equality Act 1998, as amended by s 38 of the Equality Act 2004.
In the Court’s view the only fact contended for by the Complainant which could avail her in discharging the initial evidential burden which she bears is her assertion that the Respondent departed from an established practice in making a permanent as opposed to a temporary appointment to the post which she formally held. In evaluating the Complainant’s evidence on this point the Court has considered the contrary evidence of Dr Jones. This witness told the Court that the practice of making temporary appointments was not universal and that there were good and compelling reasons for making a permanent appointment in the instant case. It is also significant that two other permanent appointments were made arising form the impugned competition in teaching subjects other than those taught by the Complainant.
The Court accepts that Dr Jones’ evidence is accurate in all material respects. It follows that the Complainant has failed to establish facts from which it could be inferred that that the Respondent discriminated against her in filling the disputed post on a permanent basis. A vacancy arose in the normal course following the Complainant’s retirement. The Respondent proceeded in the normal way to fill that vacancy and it was the Interview Board to select a suitable candidate for appointment on either a temporary or permanent basis as it considered appropriate. At the material time the Complainant was ineligible to apply for the vacancy as a new entrant. There is no rule in law or in logic which would have required the Respondent to so order its affairs as to keep open the possibility of the Complainant applying for the post as a new entrant when she become eligible to so apply.
For all of the foregoing reasons the Complainant has failed to establish a prima facie case of discrimination. Accordingly she cannot succeed.
Determination
The appeal herein is disallowed and the decision of the Equality Officer is affirmed.
Signed on behalf of the Labour Court
Raymond McGee
10th October 2007______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.