FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2007 PARTIES : HEALTH SERVICE EXECUTIVE - AND - BRIDGET CONNOLLY DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 and 2004.
BACKGROUND:
2. A Labour Court hearing took place on 31st March 2009. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Ms. Bridget Connolly (the Complainant) against the decision of an Equality Officer in a claim alleging discrimination on the ground of age by the Health Service Executive (the Respondent). While the Complainant had a number of complaints under the Acts before the Equality Tribunal, she told the Court that the only allegation before it concerned the Respondent’s failure to provide her with a P45 and such failure constituted discrimination on the age ground, in terms of Section 6(2)(f) of the Employment Equality Acts 1998 and 2004 (the Acts) and in contravention of Section 8 of those Acts.
The Equality Officer found that the Complainant’s complaints were out of time as set down in section 77(5) and accordingly under section 79 (6) he had no jurisdiction to hear the Complainant’s substantive claims under the Acts.
The Complainant’s appeal to the Court is confined to the allegation concerning the Respondent’s failure to provide her with a P45.
Background
Due to an alleged incident of harassment which the Complainant made in January 2004, she was absent on sick leave and the payment of sick pay expired in July 2004, in accordance with the provisions of the sick pay scheme. At that stage the Complainant indicated that she was fit to return to work. However, due to a number of reasons (detailed below) she did not return. On 10th March 2005 the Complainant submitted her resignation and sought a P45 from the Respondent. She retired on 22nd April 2005.
Summary of the Complainant’s case:
The Complainant lodged a complaint under the Acts with the Equality Tribunal on 1st June 2006. She submitted that despite requests for a P45, she only became aware some time in January 2006 that the Respondent would not be furnishing her with a P45.
She told the Court that her trade union representative informed her in mid-January 2006 that the Respondent would not be furnishing her with a P45 as there was no need to supply one.
The Complainant submitted that having been taken off the payroll in July 2004, as she felt that she was not going to be transferred to a suitable alternative work location, she decided to seek employment elsewhere and consequently sought a P45. She contended that the failure to supply her with a P45 was directly related to her age and constituted discrimination on the age ground. She submitted that as a consequence she encountered some administrative difficulties when she sought alternative employment. Furthermore, she told the Court that she felt humiliated in having to obtain a Garda Clearance Certificate.
Summary of the Respondent’s case:
The Respondent denied that it had discriminated against the Complainant on the ground of her age. Following an allegation of harassment made by the Complainant concerning a fellow employee and during her sick leave absence management contended that it made a number of attempts to facilitate her return to work. It stated that as she was not satisfied to return to her normal place of work they offered her a number of alternative work locations. Management were in contact with both her trade union representative and her Solicitor throughout this time in an effort to resolve the issue. Furthermore, the Occupational Health Department offered her support to enable her return to work. However, she remained absent from work on sick leave and her sick pay entitlements expired in July 2004.
Despite being deemed fit to return to work from 10th September 2004, and despite the practical arrangements made around her return to work, she did not return and a Reference was sought on her behalf. In November 2004 she took up employment elsewhere. On 10th March 2005 she wrote to Management tendering her resignation and seeking her P45.
The Respondent submitted that as she was due to retire on 22nd April 2005, in accordance with the normal retirement age of the Superannuation Scheme, they processed her letter of resignation as part of her retirement procedures.
The Respondent supplied information to the Court to support its position that in accordance with Revenue Commissioner rules a P45 must not be supplied where an employee progresses from employment to retirement on the grounds that such a person must not be treated as having left the employment. The Respondent held that this was precisely the position in this case.
Findings of the Court
The Court is satisfied that although the Complainant sought a P45 some time towards the latter part of 2004, she was not informed that she would not be entitled to one until her trade union informed her around mid-January 2006. Consequently, the Court is satisfied that the Complainant’s claim concerning the alleged failure of the Respondent to provide a P45 is within the time limit specified under s 77(5) of the Acts. Therefore the Court has jurisdiction to hear the claim.
The Complainant informed the Court that at some point during discussions with management in relation to her requests for a P45, she was informed that the only way she would be entitled to receive it was by resigning from her employment with the Respondent. This she proceeded to do on 10th March 2005 by giving one month’s notice in writing of her resignation. However, as this was within days of her normal retirement date, management did not view it as a resignation and instead proceeded to process her retirement in the normal way.
The Court accepts that management made a number of serious proposals to accommodate her with alternative work locations during the period of her absence, none of which were acceptable to her.
The Court has formed the view that the Complainant was under the impression that as she was off the payroll since July 2004 she therefore was no longer an employee of the Respondent.
The Court also takes the view that despite it only being a few days before her normal retirement date there was a duty of care on management to clarify the situation when she sought to resign in March 2005. Management did not assist her with details of her entitlements and it was September 2005 before she received any monies from the Respondent. In September 2005 she received her pension entitlements backdated to 22nd April 2005.
Management told the Court that in the normal course of events any employee would have been supplied with a P45 had they resigned at any time prior to their retirement date but that in the circumstances of this case, as the resignation was within a few days of her retirement she was deemed not to be entitled to a P45. In support of its contention it relied on the Revenue Commissioner rules. The Court fully accepts the Revenue Commissioner rules regarding the supply of a P45 on retirement and accepts that in such circumstances an employer could rely on the defence that there are valid grounds for not providing a P45 on retirement.
However, in this case the Complainant had technically not yet reached her normal retirement age and therefore the Court is of the view that the Respondent cannot rely on the defence submitted. In such circumstances, the Court must find that she was treated differently than an employee of a different age in terms of her conditions of employment and consequently was discriminated against on the age ground contrary to the Acts.
In determining the redress to be decided upon in this case, the Court notes that (i) the Complainant was offered ample opportunities for alternative employment with the Respondent which she declined; (ii) it is a necessary requirement for all prospective employees seeking employment in the health sector to obtain a Garda Clearance Certificate and (iii) while it may have been an inconvenience, the Complainant was not unduly affected by not being supplied with a P45 in that she managed to secure alternative employment (while continuing in employment with the Respondent) which employment she continues to hold.
Determination
The Court therefore finds that the Complainant was discriminated against on the ground of her age in breach of Section 6(2)(f) of the Employment Equality Acts, 1998 – 2004. The Court is satisfied that the most appropriate form of redress in this case is an award of compensation.
Taking all the circumstances into account the Court considers that the amount of compensation, which is reasonable in this case, is €1,000. An order will be made directing the Respondent herein to pay the Complainant compensation in that amount.
Signed on behalf of the Labour Court
Caroline Jenkinson
21st April 2009______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.