Thomas Hoey (represented by John Ussher, Irish Taxi Drivers' Federation)
v
Area Development Management Ltd. (represented by Brian Murray S.C. and Declan Murphy B.L. instructed by the Chief State Solicitor)
1. The complainant referred a case under the Equal Status Acts 2000 to 2004 to the Director of Equality Investigations on 29 September, 2004. In accordance with the due delegation to me by the Director of her powers under the Equal Status Acts, I investigated the case. I received written material from both parties including a detailed submission and a list of authorities relied upon from the respondent's legal representatives. Hearings took place on 5 and 16 July last.
Subject matter of the case
2. The complainant alleges discrimination on the ground of age insofar as he was refused compensation under the Taxi Hardship Payments Scheme because he was under 50 years old. This Scheme was designed to compensate taxi licence holders who were suffering hardship as a result of the liberalisation of the taxi licence regime. By letter of 24 August 2004, Area Development Management Ltd. (ADM), informed the complainant that his appeal against an earlier refusal under the Scheme was unsuccessful for the reason that he fell "outside the age criteria under Category 3 (Persons aged 50-65 on 31 December 2002)".
Preliminary issue
3. In a written submission, the Chief State Solicitor, on behalf of the respondent, referred to the fact that the complainant, in his complaint form, purported to proceed against "The Taxi Hardship Payments Scheme" and stated that there was no such entity in law capable of being sued. I enquired into this matter, obtaining the advice of counsel and forwarding it to the parties for their observations. Taking account of counsel's advice and the views of the parties, I then decided that I should not dismiss the complaint because of this factor but should proceed to investigate it treating ADM as the respondent. My reasons for adopting this approach, which were communicated to both sides, can be summarised as follows: (a) the complainant is a lay person who was unrepresented at the time he made the complaint; (b) in the light of this, the Tribunal, as a relatively informal forum which is intended to be readily accessible to persons seeking redress under the equality legislation, should not take a narrow or legalistic view on a matter such as this; (c) the complainant had evidently notified ADM as required by the Act and it had replied to the notification; and (d) ADM administered the Scheme in respect of the complainant as it did for others. The investigation then proceeded on this basis.
Matters for consideration
4. In a written submission on his behalf and at the hearing, the case made by the complainant is that he was refused payment under the Scheme solely on the ground that he was under 50 years of age on the specified date and that this constitutes discrimination on the age ground contrary to the Act. Mr Hoey was driving a taxi for 20 years and colleagues with much less service received payments solely on the basis that they were over 50. He considered that the consequences for him of the liberalisation of the licensing regime were more serious than they would be for a person over 50 in that he had young children to rear and educate. Also, in the material he submitted in support of his application for assistance from the Scheme, he stated that he suffered bad health due to an accident caused by a hit-and-run driver and other factors.
5. In a written submission and at the hearings, the following points were made on behalf of the respondent:
(a) by decision of 17 December 2002, the Government approved the publication of the Report of the Taxi Hardship Panel and the implementation of the Panel's recommendations. These were designed, not to compensate taxi licence holders for the loss in the value of their licences consequent on the liberalisation, but to assist licence holders who were experiencing extreme personal financial hardship as a result of that development;
(b) the Scheme was not arbitrarily conceived but was the product of careful consideration by an expert panel and that panel had received numerous submissions prior to issuing its report;
(c) any scheme of this nature involves the making of distinctions between those who are considered deserving of assistance and those who are not. This was done in a considered and bona fide way;
(d) for this reason, section 14(1)(b)(ii) of the Act applies. This provides that nothing in the Act shall be construed as prohibiting preferential treatment or the taking of positive measures which are bona fide intended to cater for the special needs of persons, or category of persons, who, because of their circumstances, may require facilities, arrangements, services or assistance not required by persons who do not have those special needs. The test is not whether there was a better way of compensating for hardship among taxi licence holders but whether in all the circumstances what was adopted was bona fide;
(e) the Report of the Taxi Hardship Panel described the category of relevance to this case as persons aged 50 to 65 with no pension plan. The Report states that these individuals now find it is too late to make provision for a private pension plan as they claim that they had planned for the future on the basis that they could sell or rent the taxi licence to provide a pension on retirement. While the Panel's view was that it was unwise for such persons to have relied on their taxi licence as the sole source of their pension, they felt that extreme personal financial hardship had resulted for those aged 50 and over because of the liberalisation and recommended a payment of €13,000 for such persons subject to conditions. It was submitted that the basis upon which persons between 50 and 65 with no pension provision were identified as constituting a separate category of persons suffering extreme personal financial hardship was the significantly elevated cost to those approaching pensionable age of making private pension arrangements at a time when their income would naturally be declining;
(f) other exemptions in the Equal Status Act, apart from section 14(1)(b)(ii), apply. These are those provided for in section 5(2)(d), (h) and (l);
(g) in any event, the Scheme is not a service within the meaning of the Act. A service is an ongoing facility and does not include a once-off scheme of non-obligatory financial assistance such as this Scheme. While the definition of 'service' in section 2 of the Act expressly includes grants, by this is meant a formalised payment to a person to undertake a particular course of action, for example, a higher education grant or an IDA grant. The term 'grant' does not encompass a gift or other assistance to a person experiencing hardship;
(h) assistance by the Scheme is also not a service for the further reason that it was not available to the public generally or a section of the public and this is necessary for it to come within the definition of 'service' in section 2 of the Act. The category of persons to whom assistance from the Scheme was available was closed at the time the Scheme was put in place - it consisted of persons who held taxi licences on 21 November 2000. This was a private class of people and was not a class consisting of the public or a section of the public;
(i) the Scheme was put in place on foot of a Government decision and Government decisions are reviewable by no one except where they may be unconstitutional, in which case they are reviewable by the courts. While it is possible for a statutory duty to be imposed on the Government, if this were done it would be stated clearly in the statute. It is not stated in the Equal Status Act;
(j) the definition of 'person' in section 2 of the Act includes 'an organisation, public body or other entity' but you cannot describe the Government in those terms. In Kelly: The Irish Constitution, 4th Ed. pp 423-424, it is stated that the Government appears to have a less complete legal personality than its individual members possess. The Ministers and Secretaries Act 1924 provides that each Minister is a corporation sole but no such well-rounded persona is available to the Government itself. According to the respondent, this supports the argument that it does not constitute 'an organisation, public body or other entity'. The Act prohibits discrimination by persons and the Government is not a person within the meaning of the Act;
(k) ADM is being treated as the respondent in this case and it could only do what it was told to do i.e. implement the Scheme as approved by the Government. Therefore, it cannot be liable under the Act. The Tribunal decision in Mc Clean v The Revenue Commissioners DEC-S2004-016 provides a precedent for this view.
6. The second hearing, on 16 July 2007, was to hear the evidence of Mr Bill Attley who was a member of the Taxi Hardship Panel. Mr Attley described how the Panel obtained submissions from the taxi unions and from numerous individuals who had been negatively affected by the liberalisation. They randomly selected some of these people and interviewed them, in some cases more than once. One theme to emerge from this consultation was that working as a taxi driver got harder as a person got older because one became more prone to sickness and disability and had less energy than when younger. A person's earning capacity diminished. The age of 50 appeared to be the point at which things started to get difficult for taxi drivers in this regard. On top of this, the value of the taxi licence on which persons had hoped to cash in when they retired was now gone and the cost of a pension to replace this accelerated rapidly as one got older.
7. The respondent submitted a report from Mr Kevin J. Reynolds, Fellow of the Institute of Actuaries, on the cost of pension provision relative to age. This set out the estimated annual contribution (based on certain assumptions including index linking and an attached spouse's pension amounting to 50% of the contributor's pension) which would be required to secure a pension of €1,000 on retirement at 65 based on the age at which contributions commence. The required annual contribution increases as the age at which contributions commence increases. For example, it would be €707 if commenced at 40 years of age, €959 at 45, €1,386 at 50 and €2,248 at 55. A notable feature is that the % increase in the required contribution, as the age of commencement goes up, accelerates. So, the required contribution at a commencement age of 30 is 25% higher than at 25 but, at 50, it is 44% higher than at 45 and, at 60, it is 116% higher than at 55 and so on . At the hearing on 16 July at which the actuary's report was first submitted, the complainant's representative indicated that he was not taking issue with its contents.
Conclusions
8. I will deal firstly with the arguments summarised at (i) and (j) of paragraph 5 above. These issues arose in McCall v Area Development Management Ltd. DEC-S2007-058 which also concerned this Scheme. For the reasons given in that decision, I rejected the respondent's submission that the act of the Government in deciding on the terms of this Scheme is outside the scope of the Equal Status Act. I see no reason to change this conclusion in the light of the written and oral submissions in the present case. Among the judicial dicta referred to in the McCall decision in support of the conclusion on this point were the remarks of Denham J. in the Supreme Court in Howard v Commissioners of Public Works in Ireland [1993] ILRM:
The concept of equality, allied to the doctrine of the separation of powers, and to the absence of any specific provision in the Constitution to give the executive a special position in relation to the legislature, convinces me that the executive has no special position. Thus, in legislating in accordance with the Constitution, the Oireachtas legislates for all, and that includes the executive.
I believe that, if it was intended that an action which was required by a Government decision was not to be affected by the prohibition on discrimination in the Equal Status Act, this would have been provided for, most likely in section 14 of the Act which makes such provision in relation to enactments, court orders, EU/EC acts and other instruments.
9. In the McCall case, I also rejected the argument that the definition of 'person' in section 2 of the Act did not cover the Government and said that it appeared to me that the definition was deliberately broad and did encompass the Government. The definition in question provides that "person" includes an organisation, public body or other entity. At the hearing, counsel for the respondent argued that the Government is not a public body and that this term refers to a statutory body. He also expressed the view that the Government could not be described as an organisation or entity. While I accept that the term 'public body' as used in various Acts is often defined to mean bodies established by or under statute, this depends on the subject matter and policy of the Act in question. In the Equal Status Act, the term is undefined and so must be given its ordinary meaning. In my view, the Government is a public body or an entity of the same kind as an organisation or public body and is a person for the purposes of the Act. In the light of the foregoing, since ADM is being treated as the respondent in the present case, it is answerable if the Scheme which it administered breached the Equal Status Act. This is so notwithstanding that the terms of the Scheme were formulated elsewhere and that ADM was acting as an agent in administering it. In this regard, I would point to section 42 of the Act which provides that anything done by a person as agent for another person shall be treated for the purposes of the Act as done also by that other person. In other words, in such a situation the principal and the agent can be held liable.
10. I will next consider the argument advanced by the respondent and summarised at paragraph 5(g) above i.e. that a service must be something provided on an ongoing basis and does not include a once-off scheme of financial assistance to relieve hardship. Service is defined in section 2 of the Act as "a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes ....... " There follows an illustrative list of examples among which are facilities for grants. Counsel for the respondent does not accept that what was paid by ADM pursuant to the Scheme was a grant. I am of the view that the financial assistance given under the Scheme can be described as a grant in the ordinary meaning of that word. The fact that recipients were not required to undertake a particular course of action, as would be the case with an education or an IDA grant, does not mean the payment from the Scheme is not a grant. Such a payment resembles an education or an IDA grant or, indeed, a housing or overseas aid grant, in that in each case the relevant public authority has determined, for some social, economic or other purpose, that payments should be made to certain recipients, perhaps to redistribute resources in their favour, encourage them to pursue a certain course of action etc. The fact that payments from the Scheme had no accompanying conditions as to what the recipient should do with the money is due to the circumstances in which these payments arose and does not mean that the payments are not grants.
11. Even if payments from the Scheme do not constitute a grant (and, so, are not included in the examples listed in the definition), I am of the view that they are still covered by the very broad definition of 'service' and, in particular, they are not outside that definition just because of the once-off nature of the Scheme and the fact that it was not an ongoing undertaking like the typical service-provider. Support for this view comes from the exceptions to the prohibition of discrimination in the provision of services contained in section 5 of the Act. Among these exceptions are differences in treatment on certain grounds where this is reasonably required for reasons of authenticity, aesthetics, tradition or custom in connection with a dramatic performance or other entertainment (section 5(2)(i)) - this would surely apply in the case of a play presented on a once-off basis by a voluntary group, for example - and a disposal of goods by will or gift.
12. There is an interesting and relevant difference between the Equal Status Act and the corresponding British legislation in this respect. Section 29 of the British Sex Discrimination Act 1975 prohibits discrimination by "a person concerned with the provision .... of goods, facilities or services". Similar wording is used in section 20 of the Race Relations Act 1976 and section 46 of the Equality Act 2006 (dealing with discrimination on the ground of religion or belief). The phrase "concerned with the provision" suggests that the person makes a practice of providing goods, facilities and services and that it is not an isolated transaction but a course of conduct. (See remarks of Lord Reid in the House of Lords in the case of Race Relations Board v Applin [1975] 1 AC at page 271.) This phrase or a similar phrase does not appear in the Equal Status Act and this reinforces my view that a service can include the once-off provision of something as happened in the present case.
13. I will next consider the argument referred to at paragraph 5(h) above, namely, that the benefits of the Scheme were not available to the public generally or a section of the public since they were only open to those persons who held taxi licences on a given date in the past. The category of persons from which the beneficiaries of the Scheme were drawn was closed at the time the Scheme commenced and other persons could not become members. The only precedent cited to me on this point was Stanbridge v Healy [1985] ILRM 290 in which the issue was whether a particular place was a public place in which case motor insurance would be compulsory. The High Court held that, since the public at large did not have access to the place, it was not a public place and that "public" means the public generally and not any particular class of the public. I have no doubt that the Scheme was not open to the public but the question is whether it was available to a section of the public i.e. are persons who held a taxi licence on 21 November 2000 a section of the public?
14. There are a number of British cases on what constitutes a section of the public. In Charter and Others v Race Relations Board [1973] 1 A.C. 868, the issue was whether membership of a Conservative club was a section of the public for the purpose of the Race Relations Act 1968. It was held by the House of Lords that the words "a section of the public" in section 2 of the Act were words of limitation, "public" being used in contrast to "private," so that there was no public element where a personally selected group of people met in private premises and the club which they constituted did not provide facilities or services to the public or any section of the public; and that as the rules of the club in question provided for nomination and personal selection and there was nothing to suggest that those rules were mere formalities, the application for membership was not a situation to which the Act applied. A similar result was arrived at by the House of Lords in Dockers Labour Club and Institute Ltd. v Race Relations Board [1976] 1 A.C. 285. There, a working men's club had a genuine process of selection of their members. They belonged to a union of working men's clubs and participated in a scheme under the rules of the union whereby members of a club could become associates on payment of a small fee. Associates were permitted to enter any club in the union and enjoy the rights of members of that club. There were some 1 million associates in the union. Some clubs in the union, including the appellants, had a colour bar. S, who was not white, entered the appellants' premises as an associate, but was asked to leave on account of his colour. The respondent board brought an action against the appellants claiming a declaration that they had acted unlawfully in refusing goods, facilities and services to S on the ground of his colour, contrary to section 2 (1) of the Race Relations Act 1968. The House of Lords held that the words "the public or a section of the public" in section 2(1) of the Act of 1968 were words of limitation indicating that the Act applied to discrimination in the public as opposed to the private sphere; that each club in the union admittedly remained in the private sphere when electing its members; that the question accordingly was whether a club belonging to the union went out of the private into the public sphere in offering admittance to associates of the union; that each associate had been the subject of personal selection by a club in the union, and the proportion of associates entering the appellants' premises was not such as to alter the private character of the club; and that, accordingly, section 2 (1) of the Act of 1968 did not apply to the club and the appellants had not unlawfully discriminated against S.
15. In contrast, in Race Relations Board v Applin [1975] 1 A.C. 259, the House of Lords held that children in the care of a local authority were a "section of the public" within the meaning of section 2(1) of the Race Relations Act 1968 and that foster parents were concerned with the provision of facilities or services to those children. One relevant feature in that case was that the foster parents in question did not personally select the children they took in but accepted children when requested to do so by the local authority. What emerges from these cases is that the requirement that the services be available to the public or a section of the public means that private situations are not covered. In particular, where there is the element of personal selection involved, the service is not being provided to a section of the public.
16. Persons who held taxi licences on 21 November 2000 were, in my view, a section of the public and this is not affected by the fact that this group of persons had a definite membership on that date which could not be added to subsequently. They had permission from the relevant public authorities to operate taxis and this is anything but a private situation. While persons holding taxi licences at that time would, I assume, have had to meet particular regulatory requirements, there was no element of personal selection involved such as arose in the Charter and Dockers Labour Club cases referred to above.
17. I will next consider the arguments summarised at (d) and (e) of paragraph 5 above and whether section 14(1)(b)(ii) exempts from the prohibitions in the Act any discrimination that may arise from the different treatment on the age ground of which Mr Hoey complains. Section 14(1)(b)(ii) provides that nothing in the Act shall be construed as prohibiting preferential treatment which is bona fide intended to cater for the special needs of persons or a category of persons who, because of their circumstances, may require assistance not required by persons who do not have those special needs. This provision is noticeably different from the other exemptions which the respondent invokes i.e. section 5(2)(d), (h) and (l) in that the latter exemptions require that the differences in treatment concerned be reasonable (based on criteria set out in those paragraphs) while section 14(1)(b)(ii) has no such requirement. It covers treatment which is bona fide intended for a particular purpose and, once it is so intended, it is not for the equality officer to assess whether or not the treatment is reasonable. Even if it is not reasonable, the exemption still applies. It seems to me that the following elements are necessary for the exemption to be invoked: (i) there must be a special need; (ii) the preferential treatment must be bona fide intended to cater for this need; and (iii) the persons benefiting must be persons who, because of their circumstances deriving from the special need, may require assistance (i.e. the preferential treatment) not required by persons without that need.
18. Collins Concise English Dictionary, 6th edition 2006, gives, among its definitions of 'special', 'distinguished from, set apart from, or excelling others of its kind' and 'not usual or commonplace'. The needs of persons who are described in the Report of the Taxi Hardship Panel as invalids unable to work can readily be described as 'special' in terms of those definitions and their recognition in the Scheme was found by me to be covered by the exemption at section 14(1)(b)(ii) in the McCall case. In the present case, it is contended that persons over 50 have special needs which those under 50 do not have. There are two aspects to the special needs of those over 50 argued for by the respondent in this case. One is that working as a taxi driver gets harder as a person gets older because of sickness, disability and reduced energy as stated by Mr Attley in his evidence. The second aspect is that pension provision is costlier when one is 50 or over.
19. With regard to the first of these points, there is little doubt that, as a person becomes older, their inclination to work long hours at a job such as driving, which is physically demanding and requires constant alertness, is likely to decline. Factors which would motivate a younger person to work long hours, such as the need to support a young family, diminish or cease to exist but, aside altogether from this, it is likely that the passage of the years makes it more burdensome on a person working long hours and/or working at night at this activity. However, a person who has reached the age of 50 does not have a special need in this respect that is different to the need of the person who is under 50. It cannot be said that his need is distinguished or set apart from other people's needs or that it is not a usual or commonplace need. What is happening is an ongoing process that affects people generally as they get older.
20. Insofar as sickness and disability (for example, back problems to which reference was made at the hearing) are concerned, while these become more common as one gets older, a particular age limit is a bad proxy if the aim is to target assistance to persons with these disadvantages. It is possible to envisage a person over 50 who has no problems of this kind and who works long hours as a taxi driver while a person under that age cannot do so because of some ailment. The complainant in this case says he suffers from health problems (details of which he has given) which restrict his ability to work and he made this point in his application under the Scheme and at the hearing. In refusing his application by letter of 11 June 2004, the respondent stated that the extenuating circumstances outlined by him with his application had been taken into account. It is accepted by both parties that the refusal of the application on appeal was founded solely on the ground of age. I do not agree that, because people are generally more inclined to suffer various ailments as they get on in years, people over 50 have a special need in this respect.
21. On the question of pension provision, the actuarial evidence presented to me by the respondent and not contested by the complainant shows that the cost of a given level of pension provision increases at an accelerating rate as the age of commencement of contributions rises. Therefore, persons over 50 years of age when the taxi regime was liberalised would have to pay more to buy a pension than those under 50. The question is whether this gives rise to a special need for the purpose of section 14(1)(b)(ii). In my view it does not. At a commencement age of 25, it would cost €342 per annum to purchase a pension of €1,000 at retirement at 65 (subject to the terms mentioned at paragraph 7 above). At a commencement age of 30, the required contribution is 25% higher than at 25. At 40, it is 107% higher, at 50 - 305% and at 60 - 1,320%. To pick 50 years as the dividing line and say that a special need arises for persons commencing pension contributions on or after this age is arbitrary as other ages could also be picked. What is happening is that the cost is increasing at an accelerating rate but it is not possible to select a point and say that, after this commencement age, the situation gives rise to a special need but not before.
22. Having decided that the exemption at section 14(1)(b)(ii) does not apply, I must consider the other exemptions of which the respondent seeks to avail. These are the provisions at section 5(2)(d), (h) and (l). Paragraph (d) provides that the prohibition on discrimination in the provision of goods and services does not apply to differences in the treatment of persons in relation to, among other things, pensions where the treatment is effected by reference to actuarial or statistical data obtained from a source on which it is reasonable to rely or other relevant underwriting or commercial factors and the treatment is reasonable having regard to the data or other relevant factors. Paragraph (h) exempts differences in the treatment of persons in a category of persons in respect of services that are provided for the principal purpose of promoting, for a bona fide purpose and in a bona fide manner, the special interests of persons in that category to the extent that the differences in treatment are reasonably necessary to promote those special interests. Paragraph (l) exempts differences, not otherwise specifically provided for, in the treatment of persons in the disposal of goods or the provision of a service which can reasonably be regarded as goods or the provision of a service suitable only to the needs of certain persons.
23. I do not accept that any of these exemptions apply in the present case. Paragraph (d) would generally be regarded as applying to the providers of insurance, pensions and other financial services but counsel for the respondent pointed out to me that the phrase "in relation to", not "in the provision of", is used and he argued in effect that the exemption can serve not only the providers of such services but also providers of other services who treat people differently for actuarial reasons where there is some relation to, in the present case, pensions. I do not accept this. Exemptions in an Act such as this must be strictly construed. The phrase "in relation to" (which is used in a number of exemptions in section 5(2)), in my view does not cover a relationship as remote as that which arises in the present case i.e. the service being provided is a payment to help alleviate hardship and it is partly intended to take account of the higher cost of pensions to a particular age group. In any event, a scheme like the present one which pays €13,000 to persons who are over 50 partly in recognition of the extra cost to them of funding a pension and pays nothing to those immediately under 50 cannot be regarded as reasonable by reference to the actuarial evidence presented by the respondent.
24. As regards paragraph (h), there can be no doubt about the bona fides of the respondent or of the Taxi Hardship Panel in proceeding as they did but, in my view, the difference between the treatment of the complainant and persons over 50 who received a payment of €13,000 cannot be said to be reasonably necessary to promote the special interests of the latter group.
25. With reference to paragraph (l), the service involved here is the payment of a grant to help alleviate financial hardship and it cannot be said that this can reasonably be regarded as suitable only to the needs of persons over 50. Taxi licence holders under 50 also lost out because of the liberalisation of the licensing regime and could, depending on their circumstances, be exposed to financial hardship. The complainant has health problems but, under the Scheme, a person without such problems but who is over 50 benefited while the complainant did not. A payment from the Scheme would certainly be suitable to someone with health problems who is under 50.
Decision
26. For the reasons set out above, I decide in favour of the complainant. In doing so, I acknowledge that the Taxi Hardship Panel set out to devise a fair scheme but, perhaps because they did not consider that the Act applied to such a scheme (and counsel for the respondent has argued that it does not apply), the Scheme as formulated is in breach of the Act. In accordance with the Act, this decision must provide for redress which can be an order for compensation for the effects of the prohibited conduct concerned and/or an order that a specified course of action be taken. Under section 27(2) of the Act, the maximum amount of compensation which may be ordered is the maximum amount which could be awarded by the District Court in civil cases in contract. This is £5,000 (€6,348.69). In Determination No. EDA0711, HSE East Coast Area v A Worker, the Labour Court in interpreting section 82 of the Employment Equality Act held that the limitation of compensation to a particular amount did not prevent the making of an order directing a specified course of action even though this would entail payment of a greater sum than the aforementioned amount. Section 27 of the Equal Status Act is similar in the relevant respect to section 82 in that the limit is placed on compensation "under subsection (1)(a)" while subsection 1(b) provides for the ordering of a specified course of action. It would, therefore, be open to me to order that the respondent re-examine the complainant's application under the Scheme without having regard to his age. Had they examined the application in that way at the outset, it is acknowledged that he would have received the €13,000. However, I am of the view that I should not make such an order. If I proceed from the standpoint that I should try to place the complainant in the same position as he would have been in if he had not been discriminated against, I cannot say that, if the discriminatory element was removed from the Scheme, everyone of whatever age would have received €13,000. What is more likely is that an alternative classification to one based on age would have been used and we do not know what payment the complainant would have received under such an approach. Having regard, however, to the scale of payments to beneficiaries under the Scheme as implemented, I am satisfied that the effects of the prohibited conduct on the complainant merit an award of the maximum amount of compensation under section 27(2) and I order payment of that amount.
John Hurley
Equality Officer
31 January 2008