THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2012 - 014
PARTIES
Ms Philomena Duffy and Ms Eileen Halpin (represented by Mandate)
and
Dunnes Stores Ltd (represented by Byrne Wallace Solicitors)
File References: EE/2009/407 & EE/2009/480
Date of Issue: 6th February 2012
1. Claim
1.1. The case concerns a claim by Ms Philomena Duffy and Ms Eileen Halpin that Dunnes Stores Ltd discriminated against them on the ground of age (Ms Duffy), respectively age and disability (Ms Halpin) contrary to Sections 6(2)(f) and (g) of the Employment Equality Acts 1998 to 2011, in terms of access to redundancy packages, respectively discriminatory dismissal (Ms Halpin).
1.2. Ms Duffy referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 23 January 2009. Ms Halpin did so on 15 July 2009. A submission was received from Ms Duffy on 8 December 2009 and from Ms Halpin on 23 December 2009. Submissions in respect of both complaints were received from the respondent on 9 September 2010. On 19 October 2011, in accordance with his powers under S. 75 of the Acts, the Director delegated the cases to me, Stephen Bonnlander, 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 this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the cases on 11 January 2012. Additional evidence was requested from the respondent at the hearing of the complaint and received on 18 January 2012.
2. Summary of the Complainants' Written Submissions
2.1. Ms Duffy submits that she had been employed with the respondent for over 29 years, working as a sales assistant in one of the respondent's stores in North Dublin. When the respondent offered a redundancy package in early 2009, Ms Duffy applied for it and was initially told she had been accepted. This offer was later withdrawn, and no reasons were given to Ms Duffy. As approximately 15-18 staff from this particular store were offered redundancy by the respondent, and all staff were under 65 years of age, whereas the complainant was 65 years old at the time, she contends that she was discriminated against on the ground of her age.
3. Summary of the Respondent's Written Submission
3.1. The respondent denies discriminating against the complainants as alleged or at all. Both complainants received one-year fixed terms contracts once they had reached the normal retirement age of 65. Both were on such contracts at the material time, although the respondent could only produce a copy of Ms Duffy's contract with her signature, whereas the contract of Ms Halpin was signed only by her manager. With regard to Ms Duffy application for the retirement package, it is denied that she was told she was accepted for the package and that the offer was later withdrawn.
3.2. The respondent submits that the offer was oversubscribed and that choices had to be made. In particular, the respondent denies age discrimination in that two staff members aged 61 and 64, who worked in the same store as the complainants, were offered the package.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainants was discriminated against and discriminatorily dismissed within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.
4.3. Ms Halpin did not appear at the hearing of the complaint, although her representative confirmed that she was aware of the hearing date, and that he had made numerous unsuccessful efforts to make contact with her in the week preceding the hearing.
4.4. As part of my investigation under Section 79 of the Act, I am obliged to hold a hearing into the matter. I find that the complainant's failure to attend such a hearing was unreasonable in the circumstances and that any obligation under Section 79 has ceased. As no evidence was given at the hearing in support of the allegation of discrimination in terms of pay I conclude the investigation of this complaint and find against the Ms Halpin.
4.5. With regard to Ms Duffy's complaint, the facts of the case were either undisputed before the hearing, or easily clarified and agreed in the course of proceedings and can be summarised as follows:
- The respondent's regular retirement age, as per the subsequent editions of the employment handbook which forms a part of the employees' contract, is 65 years of age and has been for the entirety of the complainant's employment with the respondent.
- At the material time, the complainant, having reached the age of 65 the previous September, was employed on a one-year fixed term contract by the respondent. It is the respondent's practice to offer staff over the age of 65 these contracts.
- The redundancy package on offer was a statutory redundancy package, and was open to any staff member with more than two year's service to apply for, regardless of age, or whether they were on permanent or fixed-term contracts.
- The complainant applied to be considered for redundancy, but was at no time told that her application for the package had succeeded.
- When the complainant retired from her regular employment on her 65th birthday, she received app. €7,900 as a lump sum payment from the respondent's pension fund. The complainant is not in receipt of regular pension payments from the respondent.
- Two staff members, aged 61 and 64 years respectively, succeeded in their applications for redundancy. These staff members were still on permanent contracts, as opposed to fixed-term contracts.
- The complainant's fixed-term contract did not contain a renewal clause and was not renewed when it expired on 2 September 2009.
- The complainant's financial entitlement, had she been successful in her application, would have been €16,140.52
4.6. The respondent's argument in defence of the case was as follows: The redundancy offer was oversubscribed and the respondent had to make a selection among applicants. The guiding principle for the respondent was economic, i.e. whether the redundancy entitlement of an applicant would be much greater than the salary this applicant would earn until their retirement, or until their contract with the respondent expired. In this regard, the 64 year old staff member whose application was successful had a redundancy entitlement of only €8,498.70, having started to work with the respondent only in April 2001, against an estimated gross pay of €15,960. The 61 year old staff member who succeeded in their application had an entitlement of €12,633.76, which was weighed against their estimated gross pay of €107,055 until retirement. The respondent argued that the complainant's entitlement was computed against the relatively modest salary entitlement that accrued until her contract expired in September 2009, which would have been €5,776.26. The respondent further argued that three staff members over 55 years of age were also successful in their applications for the redundancy package.
4.7. The respondent further cited the Labour Court decision EDA1114, Eircom Ltd v. Raymond McGovern to the Tribunal. However, I consider the Court's findings not relevant for the case on hand as it was undisputed that it was open to all staff members with more than two years' service to apply for the package.
4.8. In terms of the respondent's explanation of how successful applicants for the package were selected, I am satisfied that the process was not discriminatory on the ground of age. This might be different if the respondent's employment practices were such that it hired mostly young people who would then stay in its employment for many decades. In such a scenario, an economic approach such as the one taken by the respondent would clearly disadvantage older workers who would for the most part have a larger redundancy entitlement than prospective income from wages, which would render them ineligible for selection. I also feel it is important to note the jurisprudence of the European Court of Justice, in Case C243/95 Hill & Stapleton v Revenue Commissioners, where the Court held that discriminatory practices cannot be justified solely on the ground of reduced costs.
4.9. However, from the facts the respondent submitted in evidence, for the specific redundancy offer that forms the basis of this complaint, I am satisfied that this is not the case here. This is due to the respondent's practice to hire persons of all ages as new staff. Accordingly, a staff member's entitlements due to their length of service, set against the potential payroll cost to the respondent until their retirement, cannot be linked to their age in a way that would make the respondent's selection approach on this occasion a discriminatory practice. Ms Duffy's complaint must therefore fail.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that Dunnes Stores did not discriminate against Ms Philomena Duffy and Ms Eileen Halpin on the grounds of age and disability in their selection for a redundancy package contrary to S. 8(6) of the Acts.
______________________
Stephen Bonnlander
Equality Officer
6 February 2012