Equality Officer's Decision
DEC-E2012-110
Parties
Roseanna Nolan
versus
Quality Hotel, Oranmore -now trading as Maldron hotel, Galway
(represented by Irish Business and Employers Confederation)
File reference: EE/2008/800
Date of issue: 27th August 2012
Keywords: Employment Equality Acts, Discrimination, Age, Retirement Age, Objective and reasonable justification
Dispute
1.1 This case concerns a complaint by Roseanne Nolan against her former employer Quality Hotel, Oranmore (Caruso Ltd) now trading as the Maldron Hotel, Galway that she was discriminated against on the grounds of age in terms of 6 (2)(f) of the Employment Equality Acts 1998-2008 [hereinafter referred to as 'the Acts'] regarding being forced to retire.
1.2 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 20th November 2008. In accordance with his powers under Section 75 of that Acts, the Director delegated the case on 9th September 2011 to Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Acts. Submissions were received from both parties and a Hearing was held on 16th January 2011. The final correspondence received in relation to information sought by the Equality Officer was on 19th April 2012. In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties.
Summary of the complainant's case
2.1 The complainant began work with the respondent on 28th August 1998 as a kitchen assistant. She submits that she enjoyed her work and continued to work there for nearly ten years. On 29th April 2008 she was ill and received a medical certificate from University Hospital, Galway for a week of sick leave.
2.2 Her date of birth was on this medical certificate which showed her to be 68. She was then compulsorily retired as the respondent told her their retirement age was 65. She submits that she was shocked at this as she had no idea that the respondent had a mandatory retirement age. She said that on any of the documentation she received from the respondent over her ten years working there - retirement age was never mentioned. Ms Nolan stated that she wished to continue working as she is a fit and healthy woman and that she had no absenteeism issues. She submits that there was no custom and practice of people retiring there - the workforce was much younger.
2.3 She said that she was unable to find an other job as employers will not take on somebody who is 68.
Summary of the Respondent's case
3.1 Since Ms Nolan lodged her complaint the Quality Hotel, Oranmore (then a Choice Group hotel) has been taken over by Caruso Ltd and is now trading as Maldron Hotel, Galway. They submit that she was a conscientious worker and attained 'Employee of the month' in April 2007. However, the respondent submits that Ms Nolan lied on a medical questionnaire filled out on 16th March 2004 where she stated her date was 30th August 1950. When the medical certificate was presented in April 2008 it became clear that her actual date of birth was 30th August 1940. Following this absence on sick leave (prior to being retired) she requested to work a four day week which she was granted.
3.2 On 26th May 2008 the General Manager told Ms Nolan that the hotel had a retirement age of 65 and that they would have no option but to retire her. She was given four weeks notice and he wished her well.
Conclusions of the Equality Officer
4.1 The issue for me to decide is whether or not Ms Nolan was discriminated on the grounds of age in terms of Section 6 2 (f) of the Acts contrary to 8(6)(c). Section 6 (1) of the Acts provides that discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated.
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 upon which he can rely in asserting that he suffered discriminatory treatment. 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. Prima facie evidence has been described as 'evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.'1
4 .3 There are two issues for me to decide:
(i) Was the complainant discriminated regarding her conditions of employment regarding her age?
(ii) Was the complainant discriminatorily dismissed on the grounds of age?
Conditions of employment
4.4 No evidence has been adduced that the complainant has been treated less favourably because of her age regarding her conditions of employment. Therefore this strand of her case fails.
Dismissal
4.5 There is no dispute that Ms Nolan was compulsorily retired when the hotel realised what age she was. However, there remains two disputes of fact between the parties:
(i) Was the complainant aware of the company's retirement age?
(ii) Did she deliberately lie about her age?
The complainant correctly points out that the employee handbook she was given (and signed that she received) mentioned nothing about a retirement age. The copy given to me at the hearing was one after the hotel became part of the Maldron Group i.e. after Ms Nolan lodged her complaint. The complainant did not receive it while she was working for the respondent. I requested Ms Nolan's Personnel file and there is no record of any documentation given to her detailing the hotel's retirement age. The respondent submits that she should have known 65 is the compulsory retirement age. They cite McCarthy v HSE in their defence2. In that case, Hedigan J found that Ms McCarthy, a radiographer who also qualified as a barrister, should have known that the standard retirement age for public servants employed before the Public Service Superannuation (Miscellaneous Provisions) Act 2004 was 65. However, the hospitality sector is not a monolith like the public sector. Customs and practices can and do vary between hotels. Ms Nolan gave cogent evidence (which the respondent did not contradict) that the workforce there was young and in her ten years working in the hotel nobody worked until they were 65. It should be noted that the hotel did not provide for a superannuation scheme; employees were offered a PRSA option which can be drawn down from any age between 60 and 75. While I accept that the respondent did have a retirement age in that as soon as they heard Ms Nolan was over 65, they retired her. However, I also accept the complainant's evidence that she was not aware of the respondent's retirement age and the respondent presented no factual evidence to rebut it.
4.6 Turning to (ii), the complainant submits that when she applied for the job as a kitchen assistant she filled out an application form which required her date of birth. She maintains that she put her correct date of birth on it. The respondent no longer has a copy of the application form. Regarding the medical questionnaire mentioned in 3.1, Ms Nolan stated her daughter filled out this form for her as she has reading difficulties and that is why the date of birth is inaccurate by a decade - her daughter simply miscalculated. Ms Nolan was adamant that she was not trying to deceive her employer. She points out that the medical certificate that led to her being compulsorily retired clearly states her correct date of birth. She voluntarily gave this to the respondent following her sick leave. This was a hospital sick certificate which almost always includes the patient's date of birth - she submits could have easily gone to her GP who would have given her sick certificate without her date of birth on it, had she wished to withhold her date of birth from the respondent. On the balance of probabilities, I prefer the complainant's evidence that she was not seeking to deceive her employer about her age.
4.7 The respondent states that it does not have to objectively justify its retirement age because of Section 34(4) of the Acts:
Without prejudice to subsection (3) it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntary or compulsory) of employees or any class or description of employees.
The respondent correctly points out that the Labour Court reserved its position on the compatibility of Section 34 (4) with Article 6(1) of the Framework Directive immediately following the Palacio de la Villa case because the case before the Labour Court could be decided on other grounds.3 Article 6 (1) states:
Notwithstanding Article 2(2), Member States may provide
that differences of treatment on grounds of age shall not
constitute discrimination, if, within the context of national law,
they are objectively and reasonably justified by a legitimate
aim, including legitimate employment policy, labour market
and vocational training objectives, and if the means of
achieving that aim are appropriate and necessary.4
The respondent warns this Tribunal not to exceed its jurisdiction and cites Charlton, J in Minister for Justice, Equality and Law Reform v Equality Tribunal:
The respondent does not have the authority to make a binding legal declaration of inconsistency or insufficiency on a comparison of European and national legislation. The High Court has that power as this has been expressly reserved to it by Article 34 of the constitutition.5
4.9 That case differs from this instant case in that it concerns whether an Equality Officer was entitled to commence a hearing to investigate whether S.I. 749 of 2004 was compatible with the Employment Equality Acts. However since Ireland joined the EEC in 1973, European Community law has taken precedence over national law. In the Supreme Court case Nathan v Bailey Gibson, Hamilton, CJ stated:
It is also well established that national or domestic courts in interpreting a provision of national law designed to implement the provisions of a directive, should interpret their national law in light of the wording and the purpose of the directive in order to achieve the result envisaged by the directive.6
4.10 To determine whether a Court or Tribunal (such as this Tribunal) is one within the meaning of Section 177 of the Treaty Establishing the European Union, in Doris Saltzmann the Court of Justice of the European Union (hereinafter CJEU) had to take into account a number of factors such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent. 7 The Equality Tribunal was established by the Employment Equality Act 1998, decisions (subject to appeal to the Labour Court) can be enforced under Section 91 of the aforementioned Act, hearings are inter partes, it applies rules of law and is independent. Therefore it is entitled to make a preliminary reference to the CJEU and is a 'national court which when called upon, within the limits of its jurisdiction, to apply provisions of Community Law is under a duty to give full effect to those provisions.'8
4.11 The respondent also cited Paragraph 25 of the recent CJEU case Maribel Dominguez v Centre Informatique dur Centre Ouest Atlantique:
It is true that this principle of interpreting national law in conformity with European Union law has certain limitations. Thus the obligation on a national court to refer to the content of a directive when interpreting and applying the relevant rules of domestic law is limited by general principles of law and it cannot serve as the basis for an interpretation of national law contra legem (see Case C268/06 Impact [2008] ECR I2483, paragraph 100, and Angelidaki and Others, paragraph 199).9
However, that respondent left out the previous paragraph in that decision which reiterates what has been said in Paragraph 4.9 of this decision:
In that regard, the Court has consistently held that when national courts apply domestic law they are bound to interpret it, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and consequently comply with the third paragraph of Article 288 TFEU. This obligation to interpret national law in conformity with European Union law is inherent in the system of the Treaty on the Functioning of the European Union, since it permits national courts, for the matters within their jurisdiction, to ensure the full effectiveness of European Union law when they determine the disputes before them (see, inter alia, Joined Cases C397/01 to C403/01 Pfeiffer and Others [2004] ECR I8835, paragraph 114; Joined Cases C378/07 to C380/07 Angelidaki and Others [2009] ECR I3071, paragraphs 197 and 198; and Case C555/07 Kücükdeveci [2010] ECR I365, paragraph 48).
4.12 The respondent also cites Francoivch10. The respondent submits that a private sector employer is entitled to rely on the law of this State. If that law is not compliant with European law, then individuals have a remedy against the State. It further submits that private sector employers cannot be penalised for the State's failure to properly transpose a Directive. I am not seeking to penalise the respondent. Prior to the hearing, I wrote to the respondent's representative on 1st December 2011 asking him to comment on the relevant decisions of this Tribunal (I included the references of these cases) concerning compulsory retirement age at the hearing. On the day of the hearing, I asked the respondent for oral submissions on objective justification. What was submitted in response (orally and in writing) are the arguments ventilated here from Paragraph 4.7 to this paragraph on why the respondent does not deem it necessary to objectively and reasonably justify their mandatory retirement age.
4.13 The respondent did not cite Donnellan v The Minister for Justice, Equality and Law Reform where McKechnie, J. states:
Any discrimination with regards to age must, as put by that Directive, serve a legitimate aim or purpose, and the means taken to achieve that purpose must be appropriate and should go no further than is necessary, i.e. they should be proportionate.11
4.14 Interpreting the Employment Equality Acts in a harmonious way with the relevant Directives has been the practice of this Tribunal - see Five complainants v Hospira12 Rose Kelly and Margaret Masterson v Chivers13, Saunders v CHC14 and Paul Doyle v ESB International15. The respondent's representative organisation is one of the most frequent attendees at the Tribunal and, therefore, should be aware of the Tribunal's approach but chose not to offer arguments on objective and reasonable justification.
4.15 To summarise, I am satisfied the complainant was unaware of the respondent's compulsory retirement age as it was not written down in any of the documentation that she received nor did custom and practice apply as employees did not continue to work there until they were 65. When invited to give reasons as to why the respondent has a mandatory retirement age, they opted not to. Based on the totality of the evidence, I am satisfied that Ms Nolan has established a prima facie case of discriminatory dismissal on the grounds of age and Quality Hotel, Oranmore has failed to rebut it. For the avoidance of doubt, I am not saying that the respondent is not entitled to set a mandatory retirement age but that this requirement should be capable of being justified on objective and reasonable grounds.
Decision
I have concluded my investigation of Roseanna Nolan's complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Acts, that
(i) the complainant was not discriminated regarding her conditions of employment on the grounds of age
(ii) the complainant was discriminatorily dismissed on the grounds of age.
Pursuant to 82 (1) (c), I order that the respondent pay the complainant €9,000 which is roughly equivalent to six months salary. Because of the length of time between the lodging of the complaint and the hearing, the complainant has sought compensation rather than reinstatement.
This award is redress for the infringement of Ms Nolan's statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
_______________
Orlaith Mannion
Equality Officer
1 Gibney v Dublin Corporation EE5/1986
2 [2010] IEHC 75
3 Determination No. EDA089 Calor Teoranta and Michael McCarthy. Although not cited by the respondent, EDA1114 Eircom and McGovern discussed Section 34(3) rather than 34(4)
4COUNCIL DIRECTIVE 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation
5 [2009] ELR 116
6 [1998]2 IR 262
7 Case C-178/99 Doris Saltzmann [2001] ECR I-4421as cited in Fahey, Elaine "The Supremacy of EC Law in Ireland" (2009) Articles. Paper 19 http://arrow.dit.ie/aaschlawart/19
8 Case 106/77 Amministrazione del Financse dello Stato v Simmental [1978] ECR 629 This principle is also upheld in Case 144/04 Mangold and Helm
9 C-282/10
10 C-6/90 and C-9/90
11 [2008] IECHC 467 Paragraph 126.
12 DEC E2011-083
13 DEC E2011-177
14 DEC E2011-142
15 DEC E2012-086 As this decision issued in June 2012, the parties would not have had sight of it prior to the hearing.