The Equality Tribunal
Employment Equality Acts
Decision DEC-E2011-247
PARTIES
Barry O'Carroll
(Represented by Audrey Coen, B.L.
instructed by Augustus Cullen Law, Solicitors)
- V -
Sovereign Security Limited
(Represented by Peninsula Business Services (Ireland) Ltd)
File reference: EE/2008/803
Date of issue: 21 December 2011
Keywords - Employment Equality Acts - Discriminatory Treatment - Access to Employment - Conditions of Employment - Victimisation - Age - Jurisdiction
1. DISPUTE
1.1 This dispute concerns a claim by the complainant that he was subjected to discriminatory treatment and victimisation by the respondent on the grounds of age in terms of section 6(2) and 14A of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of the Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 25 November 2008 under the Acts. On 4 February 2011, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. Submissions were sought and received from the parties in advance of the hearing. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 5 May 2011. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S SUBMISSION
2.1 The complainant submitted that he was employed as a security guard with the respondent from March 2002 until the end of July 2008 when the respondent informed him that he was being dismissed with immediate effect with payment in lieu of notice.
2.2 The complainant submitted that he appealed that decision and that the respondent accepted its shortcoming and revoked his dismissal. Following correspondence between legal advisors, the complainant was offered a fixed term contract, which he rejected.
2.3 The complainant noted that he has already brought a complaint to the Employment Appeals Tribunal (EAT) regarding his dismissal and that the EAT made a determination and an award in his favour in that regard.
2.4 The complainant submitted that he received four contracts over the course of his employment, but that the initial contract did not include a mandatory retirement age. The complainant also submitted that his employer never advised him of a mandatory retirement age, but issued him with a document which purported to impose a retirement age (65) and then sought to unilaterally change that age to 66. The complainant further submitted that the respondent cannot be permitted by law to do this, and that changing an employees retirement age is essentially a matter of contract law, where a retirement age is provided for in an employee's terms and conditions of employment, whether expressly or impliedly, that age can only be changed with the consent of the employee as was confirmed by Laffoy J in the unreported High Court case of Reilly v Drogheda Borough Council.
2.5 The complainant submitted that following the offer of the Fixed Term Contract, his advisors wrote to the respondent requesting that the complainant be re-instated and that the decision of 29 July be vacated. The complainant submitted the respondent's manner of dealing with him was abysmal and wholly unsatisfactory and amounts to victimisation. The complainant also submitted that the behaviour of the respondent amounts to victimisation as the decision of 29 July 2008 was preceded by a lot of tension between the claimant and the respondent and the complainant further submitted that this tension culminated in the decision of the respondent of 29 July which was aimed solely at victimising him and that later it had to be revoked.
2.6 The complainant submitted that the respondent was clearly angry with him in the aftermath of an accident in the workplace of 28 March 2008 when he sustained a back injury when moving large bags of shredded paper and arising from which he made an application to the PIAB. The complainant also submitted that the respondent was manifestly displeased with this.
2.7 The complainant submitted that there was further tension between himself and the respondent when he filed a number of complainants to the Labour Relation Commission in or around April 2008 under the Organisation of Working Time Act, the Safety and Welfare at Work Act, 2005, Terms of Employment (Information) Act 1994, the Payment of Wages Act 1991, and the Industrial relations Act 1969 which concerned a claim of alleged bullying against the respondent.
2.8 The complainant submitted that this pattern of behaviour against him fulfils the meaning of being victimised under section 74(2)(b) of the Acts in that the letter of 29 July 2008 and subsequent meeting amounted to "adverse treatment" by the respondent as a result of his bringing "proceedings" (per subsection 2(b)) and his complaints to the respondent (per subsection (2)(a)) and this adverse treatment by the respondent was "as a reaction" to his complaints and bringing proceedings.
2.11 The complainant submitted that the was penalised and "adversely treated", within the meaning of the Acts for having brought those complaints, as in the aftermath of his appeal on 20 August 2008 he was offered a Fixed Term Contract (when he wished to remain on his original contract) and this constituted a diminution of his existing rights and contained a clause under which he would have to agree not to bring any unfair dismissals or labour relations claims. The complainant also submitted that this represented a penalisation and adverse treatment of him.
2.12 The complainant submitted that he has been discriminated against by the respondent on the grounds of his age in relation to (i) his access to employment, (ii) the conditions of his employment and (iii) he has been victimised.
3. SUMMARY OF THE RESPONDENT'S SUBMISSION
3.1 The respondent submitted that the complainant has been issued with 5 contracts of employment since the commencement of his employment, and that the initial contract of employment did not contain a retirement age, but all subsequent contracts did. The respondent submitted that although the initial contract did not state a retirement age, this was superseded by several subsequent contracts in 2003, 2004 and 2005 which contained a retirement age of 65. The final contract issued in January 2007 changed the retirement age to 66 because that is the age when the State Pension starts.
3.2 The respondent submitted that the complainant initiated a Personal Injuries claim following an incident on 28 March 2008 and that it had not been fully mindful of the complainant's age prior to the receipt of the associated paperwork. The respondent accepted that it did not flag the complainant's age as an issue with him when he reached 65 and submitted that his continued employment was merely an oversight.
3.3 The respondent submitted that in addition to its obligations under the Health & Safety legislation, it is also required to ensure that persons over 65 undergo a medical examination to ensure their fitness for the duties to which they may be assigned and furthermore persons over 65 are not eligible for Death in Service Benefit, or Personal Attack Benefit and these issues influenced the respondent's actions.
3.4 The respondent submitted that under Section 6(3)(c) of the Acts "offering a fixed-term contract to a person over the compulsory retirement age for that employment or to a particular class or description of employees in that employment shall not be taken as constituting discrimination on the age ground".
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the complainant on was subjected to discriminatory treatment and victimisation by the respondent on the grounds of age in terms of section 6(2) and 74 of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of the Acts.
4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
Preliminary Matters
4.3 The decision to impose or change the age of retirement complained of by the complainant dates from the series of documents, the latest of which is dated 3 January 2007. The complainant submitted his complaint to the Equality Tribunal on 25 November 2008. Section 77(5) of the Acts states that
Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.
While Section 77(6) allows for the extension of that period to be extended, in certain circumstances, to 12 months:
If on an application made by the complainant the Director, the Labour Court or, as the case may be, the Circuit Court is satisfied that exceptional circumstances prevented the complainant's case (other than a claim not to be receiving remuneration in accordance with an equal remuneration term) being referred within the time limit in subsection (5)
(a) the Director, the Labour Court or the Circuit Court, as the case may be, may direct that, in relation to that case, subsection (5) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction, and
(b) where such a direction is given, this Part shall have effect accordingly.
4.4 In accordance with the forementioned provisions of Section 77 of the Acts, I consider that this element of the complainant is out of time and therefore the Tribunal has no jurisdiction to deal with this matter.
4.5 In relation to the access to employment elements of this complainant and the victimisation elements of this claim, I have considered the decision of the Employment Appeals Tribunal, delivered on 22 June 2010, at some length. Having regard to the detail of the determination of that Tribunal, I am satisfied that the Employment Appeals Tribunal considered each of the key elements put forward in the instant complaint as amounting to dismissal.
4.6 Section 101(4) of the Acts states that:
An employee who has been dismissed shall not be entitled to seek redress under this Part in respect of the dismissal if
(c) the employee has instituted proceedings for damages at common law for wrongful dismissal and the hearing of the case has begun
(d) in the exercise of powers under the Unfair Dismissals Acts, 1977 to 1993, a rights commissioner has issued a recommendation in respect of the dismissal, or
(e) the Employment Appeals Tribunal has begun a hearing into the matter of the dismissal.
4.7 As these matters have been found to constitute a dismissal under the Unfair Dismissals Acts, I consider that, under the provisions of Section 101(4)(c), the complainant is not entitled to seek redress under the Employment Equality Acts in this regard.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that the conditions of employment element of the complaint is out of time and therefore the Tribunal has no jurisdiction to deal with this aspect of the complaint.
5.2 Having considered all the written and oral evidence presented to me, I find that the access to employment and victimisation elements of the complaint have been found to constitute a dismissal under the Unfair Dismissals Acts 1977 to 1993 and, in a situation where the Employment Appeals Tribunal has begun a hearing into the matter of the dismissal the complainant is not entitled to seek redress under the Employment Equality Acts in this regard.
Conor Stokes
Equality Officer
21 December 2011