THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2010-120
PARTIES
Abbie Fitzgerald
(represented by SIPTU)
and
The Health Service Executive
(Dublin Mid-Leinster)
File Reference: EE/2007/437
Date of Issue: 6th July, 2010
Headnotes: Employment Equality Acts, 1998 to 2008 - discriminatory treatment - age - gender- conditions of employment - prima facie case of discrimination - respondent failed to rebut inference of discrimination
1. Dispute
1.1 This case concerns a complaint by Ms. Abbie Fitzgerald that she was discriminated against by the Health Service Executive on the grounds of gender and age contrary to sections 6(2)(a) and 6(2)(f) of the Employment Equality Acts, 1998 to 2008 in terms of the respondent's decision to refuse her application for an extension to her contract of employment when she reached the retirement age of 65 years.
2. Background
2.1 Ms. Abbie Fitzgerald referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 17th August, 2007. 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 19th August, 2008 and from the respondent on 7th October, 2008. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 31st March, 2010. The final correspondence between the Equality Officer and the parties concluded on 16th April, 2010.
3. Summary of the Complainants' case
3.1 The complainant was employed by the respondent as a Multi-Task Attendant from December, 1980 until the date of her retirement upon reaching the age of 65 years on 24th June, 2007. On 13th March, 2007 the complainant applied to the respondent for an extension to her employment beyond the retirement age of 65 years. However, she stated that this application was refused by the respondent on the basis that the terms of her contract of employment stated that she would have to retire upon reaching the age of 65 years. The complainant stated that she appealed this decision to the respondent but the decision to refuse her request for an extension to her contract of employment was upheld. The complainant stated that she was informed by the respondent that it was only in exceptional circumstances such as where there are difficulties in the recruitment of replacement staff that persons are allowed to continue to work beyond retirement age. The respondent indicated to the complainant that the decision was being upheld on the basis that there were no such difficulties in recruiting staff in her particular grade. The complainant stated that she did not accept that there were no difficulties in recruiting staff in her grade and she gave evidence that at the time of her retirement there were major difficulties for staff in obtaining leave and that there were also difficulties in covering shifts due to staff shortages.
3.2 The complainant claimed that the respondent had previously granted extensions of employment beyond the retirement age to male members of staff in the Mid-Leinster Area of the Health Service Executive. The complainant stated that two male colleagues, Mr. A and Mr. B, who were also employed by the respondent at her place of employment i.e. St. Mary's Care Centre were granted extensions to their respective periods of employment beyond the retirement age of 65 years in or around the same period of time that her request was refused. The complainant submitted that the only reason why her request for an extension was refused in circumstances where her two male colleagues were granted extensions to their respective periods of employment was on the grounds of her gender. The complainant submitted that the manner in which her application for an extension was treated by the respondent amounts to discriminatory treatment on the grounds of her age and gender.
4. Summary of the Respondent's case
4.1 The respondent confirmed that it employed the complainant as a Multi-Task Attendant from 10th December, 1980 until the date of her retirement on 24th June, 2007. The respondent accepts that the complainant applied for an extension to remain in employment beyond her retirement age of 65 years; however, she was informed by her Line Manager (following consultations with the Human Resources Department) that this request was being refused on the basis that her contract of employment contained a term that she would be required to retire upon reaching the age of 65 years. The complainant appealed this decision to the respondent's National Director of Human Resources who decided to uphold the decision not to grant the extension following a review of her case.
4.2 The respondent stated that extensions to employment beyond the retirement age of 65 years are only granted in exceptional circumstances, such as where there are difficulties in the recruitment/replacement of staff. The respondent stated that at the time of the complainant's request for an extension of employment there was a panel in place to recruit Multi-Task Attendants and as a result there were no difficulties in terms of recruiting a replacement to the complainant's position after she had retired. The respondent accepts that two male members of staff, Mr. A and Mr. B, who were also employed at St. Mary's Care Centre (i.e. the complainant's place of employment) were granted extensions to remain in employment beyond the retirement age of 65 years. However, the respondent stated that these workers were employed in different posts and grades to that of the complainant i.e. Mr. A was employed as a Boilerman and Mr. B was employed as a General Operative in the Maintenance area. The respondent argued that the circumstances surrounding the decision to grant the extensions to both of these workers was different than that which pertained in the complainant's case.
4.3 The respondent stated that no men or women employed in the Multi-Task Attendant grade have been granted an extension of employment beyond the normal retirement age. The respondent adduced evidence in relation to a male Multi-Task Attendant (who had been employed on an identical contract to that of the complainant) and whose request for an extension beyond the age of retirement in November, 2008 was refused on the same grounds as that of the complainant. The respondent denies that it discriminated against the complainant on either of the grounds claimed and it submitted that the decision to refuse her request for an extension beyond the normal retirement age was in no way influenced by either her age or her gender.
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/her. If he/she 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)(a) of the Acts defines the discriminatory ground of gender as follows - "as between any 2 persons, ... that one is a woman and the other is a man" and 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 and gender i.e. because she is of a different age and gender 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 her age and/or gender, in terms of sections 6(2)(a) and 6(2)(f) of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts as regards its refusal to grant her request for an extension to her employment after she had reached the age of 65 years. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence of the parties at the Hearing. I will now proceed to examine the complaint on each of the grounds claimed.
Age Ground
5.4 The complainant has claimed that she was subjected to discrimination on the grounds of age in terms of the respondent's refusal to grant her application for an extension to her employment beyond the retirement age of 65 years, in circumstances, where two male members of staff, who were also employed at her place of employment, were granted such an extension to remain in employment. The respondent has denied that the complainant was subjected to discrimination on the grounds of age and it claims that the complainant's contract of employment clearly stated that she would be obliged to retire upon reaching 65 years of age.
5.5 In considering this issue, I note that the material facts of the case are broadly agreed between the parties, including the following:
- The complainant and the two male comparators, Mr. A and Mr. B, were provided with a contract of employment upon the commencement of their respective periods of employment with the respondent which stated that their employment would cease upon reaching 65 years of age;
- Prior to reaching the age of 65, the complainant applied for an extension to work beyond the stated retirement age of 65. This request was refused by the respondent and the complainant was therefore obliged to retire upon reaching the age of 65 years;
- On the other hand, the two male comparators, Mr. A and Mr. B, were granted an extension to the respective periods of employment after the age of 65.
I note that the complainant has not put forward any arguments or submissions to the effect that the imposition by the respondent of a compulsory retirement age of 65, is in itself, discriminatory on the grounds of age within the meaning of the Employment Equality Acts. Rather, the main import of the complainant's case on the age ground was that the respondent's refusal to grant her an extension to her period of employment beyond the age of 65 years, in circumstances where two male colleagues had been granted an extension, amounted to discrimination on the grounds of her age.
5.6 In considering the alleged discrimination in the present case, I note that the complainant was the same age as the two comparators, Mr. A and Mr. B, when her application for an extension to her period of employment was made i.e. they were all 64 years of age. In the circumstances, I am satisfied that whatever the reasons for her being refused the extension in question, in circumstances where Mr. A and Mr. B were granted it, it cannot have been less favourable treatment on the age ground.
5.7 It is clear that the complainant's contract of employment stipulated that she would be required to retire upon reaching the age of 65 years. Section 34 of the Employment Equality Acts provides for savings and exceptions related to the family, age and disability grounds. Specifically section 34(4) of the Acts provides:
"Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different retirement ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees"
It is therefore the case that it is not discriminatory on the age ground to fix different ages for the compulsory retirement of employees. In considering this issue, I have also taken cognisance of a recent High Court judgement in which the issue of compulsory retirement ages arose where Hedigan J. found that "As to the Council Directive 2000/78, the case referred to the Court of Pallacio de la Villa adequately affirms that a law providing for a retirement age of 65 could not be seen as discriminatory or unreasonable in its effect. Indeed such a provision is almost universal throughout the European Union". In the circumstances, I find that the complainant has failed to establish a prima facie case of discrimination on the age ground.
Gender Ground
5.8 I will next consider the claim that has been made by the complainant that she has been subjected to discrimination by the respondent on the grounds of her gender. The complainant's claim of discriminatory treatment on the gender ground is based on the respondent's decision to refuse her request for an extension of employment beyond her retirement age of 65, in circumstances where two male members of staff who were also employed at her place of employment, were granted such an extension. The respondent has denied that the complainant was subjected to discrimination on the grounds of her gender and it submitted that no men or women within her own grade i.e. the Multitask Attendant Grade have been granted extensions beyond the retirement age of 65.
5.9 In order to raise an inference of discrimination on this ground, in the circumstances of the present case, the complainant must demonstrate that she was treated less favourably that another person is, has been or would be treated in a comparable situation on the grounds of her gender. I must therefore decide if the two male workers i.e. Mr. A and Mr. B who the complainant has put forward as comparators were in "a comparable situation" to her (within the meaning of section 6 of the Employment Equality Acts) in terms of the manner in which the respondent dealt with their respective requests for extensions to their contracts of employment. In considering this issue, I note that it was accepted by the respondent that both, Mr. A and Mr. B, and the complainant had similar contracts of employment which stipulated that they were obliged to retire upon reaching the age of 65 years. It was also accepted that both, Mr. A and Mr. B, and the complainant were all aged 64 years and were working in the same place of employment when they sought an extension to their respective periods of employment. In the circumstances, I am satisfied that the complainant and both, Mr. A and Mr. B, were in a comparable situation in terms of the circumstances surrounding their requests for an extension to their respective periods of employment beyond the age of 65 years. Accordingly, I do not accept the respondent's argument that the comparator in the present case must be confined to workers within the complainant's own grade within the organisation.
5.10 Having regard to the evidence adduced, it is clear that the complainant as a female employee was not granted an extension to her period of employment beyond the age of 65 years whereas Mr. A and Mr. B who were both male employees and working within the same place of employment as the complainant were granted such an extension. I therefore find that these facts are sufficient to raise a prima facie of discrimination against the complainant on the grounds of her gender. In such circumstances, the burden of proof shifts to the respondent to rebut the inference of discrimination.
5.11 In order to consider whether or not the respondent has succeeded in rebutting the inference of discrimination, I am obliged to examine the circumstances and manner in which it dealt with the complainant's request for an extension in comparison to the circumstances that pertained in relation to the decision to grant an extension to both, Mr. A and Mr. B. In considering this issue, I note the respondent's evidence that extensions to remain in employment beyond the age of 65 years are granted only in exceptional circumstances, such as where there are difficulties in the recruitment and/or replacement of staff. The respondent's evidence was that the complainant's request for an extension was refused on the basis that there was a panel in place to recruit staff within her grade and as a result there were no difficulties in terms of recruiting a replacement to the complainant's position after she had retired. The respondent also stated that, notwithstanding the fact that there was a panel in place, the complainant was not replaced in her position following her retirement because of the implementation of a recruitment embargo and her position was filled through re-deployment and re-assignment of existing members of staff within her grade.
5.12 At the oral hearing of the complaint, Mr. X, Maintenance Manager, gave evidence on behalf of the respondent regarding the circumstances surrounding the decision to grant the extensions of employment to both Mr. A and Mr. B. In the case of Mr. A, who was employed as a Boilerman, he was granted an extension of employment for a period of six months after he had reached the age of 65 years (in June, 2007). I note Mr. X's evidence that Mr. A's position as a Boilerman had, in effect, been abolished prior to the decision to grant him an extension to his employment and that he had been re-assigned to carry out other duties prior to his scheduled retirement date. Mr. X stated in evidence that Mr. A was retained in employment beyond his retirement age in order to maximise staff numbers for the purpose of an audit that was being carried out at that juncture.
5.13 Turning next to the case of Mr. B, who was employed as a General Maintenance Operative, I note that he was granted an extension of employment for a period of one year after reaching the age of 65 years (in February, 2007). Mr. X stated in evidence that Mr. B was granted this extension on the basis of "personal circumstances" that pertained to him at that juncture. It was also confirmed that the extension was granted to Mr. B notwithstanding the fact that there was an existing panel in place to recruit staff within his grade at the time he was due to retire in February, 2007.
5.14 Having regard to the evidence adduced, I am of the view that the respondent has failed to demonstrate that there were exceptional circumstances (as defined within its own policy on the granting of extensions) which required the retention of both Mr. A or Mr. B in employment beyond their retirement age of 65 years. I am satisfied that the respondent clearly failed to implement its stated policy in relation to the granting of extensions beyond retirement age in the cases of Mr. A and Mr. B with the result that both workers were granted extensions. It is well established jurisprudence in relation to discrimination law that "discrimination involves the application of different rules to comparable situations, or the application of the same rule to different situations" . It is clear from the evidence adduced that the respondent's retirement policy was applied in a different manner in the complainant's case as opposed to that of Mr. A and Mr. B with the result that her request for an extension beyond the age of 65 years was refused.
5.15 Having regard to the evidence adduced, I am satisfied that the respondent has failed to justify the reason why its policy, in relation to the granting of extensions of employment beyond the age of 65 years, was applied in a different and ultimately less favourable manner in the case of the complainant, as a female employee, as opposed to the situation that pertained in the cases of the two male employees, Mr. A and Mr. B. In the circumstances, I find that the complainant was subjected to discrimination on the grounds of her gender in terms of the respondent's decision to refuse her request for an extension beyond the age of 65 years in circumstances where two male employees who were in a comparable situation were granted such an extension. Based on the foregoing, I am not satisfied that the respondent has rebutted the complainant's prima facie case of discrimination on the gender ground. Accordingly, I find that the complainant is entitled to succeed in this element of her complaint.
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) I find that the respondent did not discriminate against the complainant on the age ground pursuant to section 6(2)(f) of the Acts and contrary to section 8 of the Acts.
(ii) I find that the respondent did discriminate against the complainant on the gender ground pursuant to section 6(2)(a) of the Acts and contrary to section 8 of the Acts.
(iii) Section 82 of the Employment Equality Acts, 1998 to 2008 provides that I can make an order for the effects of the discrimination. In considering the redress in this case, I have to be aware that any award for compensation should be proportionate, effective and dissuasive. I have taken into consideration that the complainant stated her preferred remedy was compensation in the event that her claim succeeded and also, the fact that she has lost out on the additional pension entitlements that would have accrued if she had been granted an extension to her employment by the respondent. Having taken the foregoing matters into consideration, I am of the view that an award of €25,000 is appropriate in the circumstances of the present case. This award is in compensation for the distress experienced by the complainant in relation to the above matters, and is not in the nature of pay, and therefore not subject to tax.
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Enda Murphy
Equality Officer
6th July, 2010