THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2010-258
PARTIES
David Moher
(represented by Mr. Daniel Moher, Solicitor)
and
Safecare Technology Limited
(In Voluntary Liquidation)
File Reference: EE/2006/103
Date of Issue: 23rd December, 2010
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - age - conditions of employment - payment of statutory redundancy entitlements - failure to establish a prima facie case of discrimination
1. Dispute
1.1 This case concerns a complaint by Mr. David Moher that he was discriminated against by Safecare Technology Limited (In Voluntary Liquidation) on the grounds of age contrary to section 6(2)(f) of the Employment Equality Acts, 1998 to 2008 in terms of the decision to refuse his application for payment of a statutory redundancy lump sum from the Social Insurance Fund when he was made redundant from his employment after the respondent had been placed into voluntary liquidation.
2. Background
2.1 Mr. David Moher referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 12th April, 2006. In accordance with her powers under section 75 of the Employment Equality Acts, the Director delegated the case on 25th November, 2009 to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2008. This is the date I commenced my investigation. A written submission was received from the complainant on 26th September, 2008 and from the respondent on 12th November, 2008. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 23rd September, 2010.
3. Complainant's Case
3.1 The complainant was employed by Safecare Technology Limited as a carpenter from 14 February, 2000 until 19 August, 2005 when he was made redundant after the company was placed into voluntary liquidation. The complainant was seventy years of age on the date that he was made redundant. The complainant made an application to the Department of Enterprise, Trade and Innovation (formerly the Dept. of Enterprise, Trade & Employment) on 5th September, 2005 for payment of a statutory redundancy payment from the Social Insurance Fund in relation to his period of employment with the respondent. This application for payment of his statutory redundancy entitlements was made to the Department of Enterprise, Trade & Innovation because his employer was insolvent and therefore did not have the funds to pay this entitlement.
3.2 The complainant was informed by the Department of Enterprise Trade & Innovation on 14th October, 2005 that he did not qualify for a statutory redundancy lump sum from the Social Insurance Fund on the basis that he was over the age of 66 years at the time he was made redundant. The complainant was informed that under the Redundancy Payments Scheme which operated at the material time of his claim that any person over the age of 66 at the date of termination of employment was not entitled to a statutory redundancy payment (in accordance with the provisions of section 5 of the Redundancy Payments Act, 1979). The complainant submitted that all of his work colleagues were paid their statutory redundancy entitlements from the Social Insurance Fund after his former employer went into voluntary liquidation. He claims that the refusal of the Department of Enterprise, Trade & Innovation to pay his statutory redundancy entitlement from the Social Insurance Fund amounts to discrimination against him on the grounds of his age.
3.3 The complainant referred to section 17(4) of the Employment Equality Acts which provides that "in relation to discrimination on the age ground, nothing in this Act shall render unlawful any act done in compliance with - (c) section 3 of the Redundancy Payments Act, 1971, as amended by section 5 of the Redundancy Payments Act, 1979" . He submitted that this provision of the Employment Equality Acts does not comply with Framework Employment Equality Directive 2000/78/EEC as it discriminates against him on the ground of age. The complainant submitted that only for the existence of section 17(4) of the Acts that he would have received protection against discrimination on the ground of age under the Employment Equality Acts in terms of his entitlement to a statutory redundancy payment.
3.4 The complainant accepts that the Department of Enterprise, Trade & Innovation ultimately refused his application for payment of a statutory redundancy lump sum from the Social Insurance Fund. However, he submitted that the discriminatory effect in the present case was the same to him whether or not the statutory redundancy payment was denied by the insolvent employer or the respondent (in the event of the employer's default). The complainant submitted that had the employer been solvent it would also have used section 5 of the Redundancy Payments Acts to refuse the payment of his statutory redundancy entitlements.
4. Respondent's case
4.1 The respondent was placed into voluntary liquidation on 5th September, 2005 and the appointed Liquidator wrote to the Tribunal on 31st July, 2006 to confirm the status of the respondent. In a further letter dated 7th November, 2008 the Liquidator confirmed that he had no objection to the complainant being considered eligible for a redundancy payment and he indicated that he would not be contesting the matter before the Equality Tribunal. The Liquidator did not attend the oral hearing of the complaint.
5. Conclusions of the Equality Officer
5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2 Section 6(1) of the Employment Equality Acts, 1998-2007 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2).....". Section 6(2)(f) of the Acts defines the discriminatory ground of age as follows - "as between any 2 persons, ... that they are of different ages." It follows therefore that the complainant must be the subject of less favourable treatment in comparison to another person on grounds of age i.e. because he is of a different age to the comparator.
5.3 The issue for decision by me in this case, then, is whether or not the respondent discriminated against the complainant on grounds of his age in terms of section 6(2)(f) of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts in terms of the decision that was taken to refuse his application for a statutory redundancy lump sum from the Social Insurance Fund after he was made redundant from his employment.
5.4 In the present case, it was not disputed between the parties that the complainant was employed by Safecare Technology Limited from February, 2000 until September, 2005 when he was made redundant from his employment after the company was placed into voluntary liquidation. I am satisfied that the complainant was an employee of Safecare Technology Limited within the meaning of section 2 of the Employment Equality Acts and that his entitlement to a redundancy payment had therefore been accrued on the basis of his employment with this company. Under the Redundancy Payments Acts, the entitlement to statutory redundancy lump sums are an employment right for eligible employees, and payment is, in the first instance, the responsibility of the employer. In circumstances where the employer is insolvent (as was the situation that pertained in the present case) payment is made directly to the employee from the Social Insurance Fund. The payment of statutory redundancy entitlements from the Social Insurance Fund is administered by the Department of Enterprise, Trade & Innovation.
5.5 It was accepted that the complainant's employer, Safecare Technology Limited, was insolvent when the complainant and his work colleagues were made redundant and therefore, it was not in a financial position to pay the statutory redundancy entitlements of any of its employees. As a result the complainant (and all of the respondent's other employees) made an application to the Department of Enterprise, Trade & Innovation for the payment of their statutory redundancy entitlements from the Social Insurance Fund, as was their entitlement under the provisions of the Redundancy Payments Acts. It was not in dispute that the complainant's application was ultimately refused on the basis that he did not meet the requirements provided for in the Redundancy Payments Acts in order to qualify for such a payment i.e. he was over the age of 66 years upon being made redundant. This is the actual act of discrimination to which the complainant has claimed he was subjected in the present case.
5.6 Section 8(6) of the Employment Equality Acts provides that:
"8(6) ... an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford that employee
or prospective employee or to a class of persons whom he or she is one -
(c) the same treatment in relation to overtime, shift work, short-time, transfer, lay-off, redundancies, dismissals and disciplinary measures,
as the employer offers or affords to another person or class of persons, where
the circumstances in which both such persons or classes are or would be
employed are not materially different"
It is clear from the aforementioned provisions of the Acts that an employer will be taken to have discriminated against an employee if, on any of the discriminatory grounds, that employer does not afford the employee the same treatment in relation to redundancies. In the present case, it is clear that the actual decision as to whether or not the complainant or any of his fellow workers (i.e. the relevant comparators) were entitled to statutory redundancy payments from the Social Insurance Fund was ultimately taken by the Department of Enterprise, Trade & Innovation, and not by the respondent. I am therefore satisfied that the respondent did not act in a decision making capacity in terms of deciding whether or not the complainant (or indeed any of the respondent's other employees) were entitled to statutory redundancy payments under the Redundancy Payments Acts. In the circumstances, I find that the respondent did not subject the complainant to less favourable treatment than any of its other workers within the meaning of the Employment Equality Acts in terms of the payment of their statutory redundancy entitlements.
5.7 The complainant has also submitted that the provisions of section 17(4) of the Employment Equality Acts does not comply with the EU Framework Employment Equality Directive . This provision of the Acts provides an exemption from the ambit of the legislation on the age ground as regard any act done in compliance with the national redundancy payment legislation. In considering this issue, it should be noted that section 17(4) of the Employment Equality Acts was repealed by section 16 of the Redundancy Payments Acts, 2003. There was also a subsequent attempt by the legislature to amend the provisions of section 17(4) by section 10 of the Equality Acts, 2004. Notwithstanding the foregoing, I am satisfied that the provisions of section 17(4) of the Employment Equality Acts are not relevant to the circumstances of the present case. If this exemption were to be invoked as a defence to a claim of discriminatory treatment, in the circumstances of the present case, it would be necessary for the respondent to have carried out an "unlawful act" against the complainant in compliance with the provisions of section 5 of the Redundancy Payments Act, 1979. In other words, the respondent would have had to been the entity that refused to pay the complainant his statutory redundancy entitlements because he was over the age of 66 years of age on the date the termination of his employment. As I have already stated, it was the Department of Enterprise, Trade & Innovation, and not the respondent, that took the decision to refuse the complainant's application for payment of a statutory redundancy lump sum from the Social Insurance Fund. Having regard to the foregoing, I am satisfied that the provisions of section 17(4) of the Employment Equality Acts are not relevant to the circumstances of the present case. Accordingly, I am not obliged to address the issue as to whether or not the provisions of section 17(4) of the Employment Equality Acts is/was in compliance with EU equality legislation in the circumstances of the present case.
5.8 Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the age ground contrary to the Employment Equality Acts in terms of the manner in which his redundancy entitlements were dealt with by the respondent.
6. Decision
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that the respondent did not discriminate against the complainant on the age ground pursuant to section 6(2) of the Acts in terms of his conditions of employment and contrary to section 8(1) of the Acts.
Accordingly, I find in favour of the respondent in this case.
_______________
Enda Murphy
Equality Officer
23rd December, 2010