EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2012-002
PARTIES
Joseph Woods
(Represented by Richard Woods)
v
St Luke's Hospital
(Represented by IBEC)
File Reference: EE/2008/502
Date of Issue: 6 January 2012
Headnotes: Discrimination in terms of employment contract and dismissal - Discrimination on the grounds of age - Employment Equality Acts, 1998 to 2008 s. 6 (2) (f), s. 8 (6).
1. Dispute
This dispute involves a claim by Mr Joseph Woods (hereinafter "the complainant") that he was discriminated against by St Luke's Hospital (hereinafter "the respondent") on grounds of age within the meaning of sections 6 (2) (f) of the Employment Equality Acts, 1998 - 2008 (hereinafter "the Acts") in relation to conditions of employment by not offering or affording to him the same treatment as the employer offered or afforded to another person or class of persons of a different age, where the circumstances in which both such persons or classes are or would be employed are not materially different, contrary to section 8 (6) of the Acts.
2. Background
The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 25 July 2008. A written submission was received from the complainant on 18 May 2009. A written submission was received from the respondent on 31 July 2009. On 25 May 2011 the respondent submitted additional material. As required by section 79(1) of the Acts and as part of my investigation, I held a hearing of this complaint on 14 June 2011. Both parties attended the hearing. Further correspondence was received from both parties after the hearing. The final correspondence was received on 21 October 2011.
3. Summary of complainant's case
3.1 The complainant was born on 21 April 1940. He was employed by the respondent as a medical scientist (cytology) from 30 November 1998. He had retired as Senior Manager in the Royal Victoria Hospital, Belfast two years previously. He was employed initially as a locum for 8 weeks, to cover for someone who was ill. He was kept on as a temporary whole time employee without a written contract. On 18 February 2008 his contract was terminated summarily. Sometime in the summer of 2006 the complainant met with the HR manager who informed him that he was one of only two staff over the age of 65. He understood her to mean that he should be asked to leave the employ of the hospital as soon as possible. The complainant was 66 years old at the time. However, this was never stated in writing to the complainant. There is no written record of this conversation. The complainant understands that the normal retirement age was 65, however a number of staff have been allowed to continue beyond their 65th birthday and accordingly the policy is not enforced by the respondent.
3.2 The complainant continued working for the respondent on the same basis as he had done previously. At a later meeting which was attended by his supervisor and the HR manager the question of regularising his contract arose. He had been informed by his supervisor prior to the meeting that the HR manager was unhappy with his contractual position and that if he was asked by her when he wanted to retire his supervisor advised him "Don't say 70." At the meeting the complainant was asked when he would ideally like to retire. The complainant replied that he would like to retire when he was 67 (i.e. on 21 April 2007). The complainant was issued with a 6 months fixed-term contract on 23 February 2007 backdated to 1 January 2007 and which was to expire on 30 June 2007, i.e. more than 2 months after the complainant's 67th birthday. On 20 June 2007 this contract was amended to extend it to 31 July 2007. On 8 August 2007 the complainant was given another fixed term contract covering maternity leave. This expired on 18 February 2008 and was not extended.
3.3 The complainant argues that he was pressurised into suggesting he would retire on his 67th birthday. However he never notified the respondent in writing of his intention to retire on his 67th birthday and was never asked to do so. The complainant points out that in the event he accepted a fixed term contract which went beyond his 67th birthday and two subsequent extensions. By doing so he made it clear to his employer that he no longer wished to retire and that he wished to continue working.
3.4 The complainant was led to believe that at the end of his final contract period there was no more work for him. However, two trainee cytologists were given permanent posts in the same grade as the complainant in January 2008, shortly after he was informed in November 2007 that his contract was not going to be renewed. The complainant contends that he was dismissed for the purpose of giving his job to two younger staff in order to retain their services and to lighten the costs of the unit. The complainant was being paid at the maximum of the medical scientist pay scale. He was singled out for dismissal because of his age to make way for younger staff.
4. Summary of respondent's case.
4.1 The respondent denies that the complainant was dismissed. He was due to retire voluntarily on his 67th birthday as requested by him but extended at the respondent's request to cover for a colleague's maternity leave. His intention to retire is evidenced by the considerable amount of effort that had gone into preparing for the complainant's retirement by sorting out his retirement benefits. The complainant had exercised in writing an option to take an "ex-gratia" payment on retirement. His intention to retire is further evidenced by his wholehearted involvement in the preparation of his retirement reception. This is not what one would expect of someone forced to retire.
4.2 The HR strongly refutes that she pressurised the complainant into retiring. The respondent agrees with the complainant that there are examples of other over 65s working in the hospital. This underpins the respondent's view that age is not a determining factor with regard to employment in the hospital.
4.3 As regards the advertising of two medical scientist posts in cytology, the respondent states that these were advertised internally on notice boards with a closing date of 4 January 2008. The successful candidates were appointed on 11 February 2008. The complainant must have been aware of this competition at the time. It was open to the complainant to apply for one of these positions if he wished to do so. In fact throughout his tenure of employment the complainant never expressed an interest in nor applied for any permanent part-time or whole time posts.
4.4 The HR manager met the complainant in November 2007 for two reasons. Firstly, to deal with an application by the complainant for unpaid leave, to which temporary staff are not ordinarily entitled and secondly to inform the complainant that they would not be extending his contract beyond 18 February 2008. There are no minutes of this meeting. The HR manager assumed that the complainant still wanted to retire. She did not ask him to confirm this at the meeting.
5. Issues
5.1 The issues which fall to be decided are:
1. Did the complainant retire voluntarily or was he dismissed?
2. If he was dismissed, was he dismissed because of his age?
5.2 The complainant was employed by the respondent on a sequence of unwritten renewed short term contracts from 1998 to 2006. It is not within my jurisdiction to decide if he was entitled to have been provided with a contract of indefinite duration under the Protection of Employees (Fixed-Term Work) Act. Instead he was given a written fixed term contract with effect from 1 January 2007 covering a 6 month period which went beyond the date (his 67th birthday) which he had indicated orally was his preferred retirement date. This written contract was amended to extend it by one month and then replaced by a new fixed term contract which employed him as cover for a colleague on maternity leave, until 18 February 2008. In November 2007 the complainant was informed that this latter contract would not be extended. This was before the respondent recruited two permanent whole time cytologists in the same grade as the complainant in January/February 2008.
5.3 Section 6(1) of the Acts 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, but subject to subsection (3).
Subsection (3) provides at (c) that -
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.
While the normal retirement age was 65, both complainant and respondent agree that retirement at 65 was not compulsory. Therefore, the exception to the principle of equal treatment on the ground of age provided by section 6 (3) (c) does not apply in the present case.
Section 8 (6) of the Acts provides-
Without prejudice to the generality of subsection (1), 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 to that employee or prospective employee or to a class of persons of whom he or she is one --
(a) the same terms of employment (other than remuneration and pension rights),
(b) the same working conditions, and
(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, 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.
6 Consideration
6.1 It is clear from the evidence of both complainant and respondent that the complainant was a most popular and esteemed colleague. He clearly loved working in the respondent's employ. It is also clear that a regrettable informality attached to the recruitment and retention of the complainant. He was initially recruited for a period of 8 weeks in a locum capacity, which became an indefinite period of employment through the informal rolling over of temporary unwritten contracts, a situation which lasted over 8 years. The incoming HR manager tried to regularise the situation. In 2006 she asked the complainant when he wished to retire. It is agreed that he told her that he wished to retire on his 67th birthday i.e. on 21 April 2007. It is also agreed that the complainant at no stage was asked to give or volunteered a written notice of his intention to retire. I find this surprising and significant. On 23 February 2007 the complainant was offered and accepted a 6 month written contract backdated to 1 January 2007 which took his employment beyond his 67th birthday. This contract was extended for 1 month. It was then replaced by another fixed term contract by which the complainant was retained to cover for a colleague on maternity leave. This latter contract expired on 18 February 2008 and was not replaced.
6.2 In the absence of a letter informing his employer of his intention to retire, the respondent relies on two pieces of evidence to support its contention that the complainant wished to retire and continued to wish to retire after his 67th birthday. First the respondent points to the complainant's enquiries about his superannuation position and his opting for an ex-gratia payment in lieu of accessing the superannuation scheme. Second the respondent points to the complainant's wholehearted involvement in the arrangements for his retirement reception.
6.3 As regards the complainant's superannuation arrangements, it is clear from the relevant Circular, 64/2002, that the respondent ought to have informed the complainant in 2002 of his entitlement to join the Voluntary Hospital Superannuation Scheme (VHSS) and ought to have informed him that he had to decide whether or not he wanted to join the scheme by 28 February 2003. The respondent did not do this. When the complainant enquired about his superannuation entitlements in 2007 he was told he could either join the VHSS by making retrospective contributions covering his service up until his 65th birthday or take a non-contributory ex-gratia lump sum payment which was based on his actual service up until the last day in his employment. For indicative purposes his ex-gratia lump sum payment was calculated assuming he retired on 31 December 2007. The complainant opted for the ex-gratia lump sum payment. I do not accept the argument of the respondent that by exercising his option for the ex-gratia payment rather than entering the VHSS, an option he ought to have been informed about in 2002 and exercised in 2003, that this is evidence of the complainant's continuing intention to retire in 2007.
6.4 Neither do I accept the respondent's contention that by engaging in the planning of his retirement reception and by his gracious demeanour at it, that this is evidence of anything other than the mutual affection between the complainant and his colleagues.
6.5 The complainant did not retire on his 67th birthday. There is no convincing evidence before me that the complainant expressed a wish to retire on any other date. I find as a matter of fact that the complainant did not retire but was dismissed due to the expiry of his fixed term contract.
6.6 The question now is, was this dismissal related to the complainant's age?
6.7 The complainant points out that the decision not to extend his contract coincided with the appointment of two younger persons to permanent positions doing the same work. He claims that this is evidence of age discrimination. The respondent denies that the two events were related. The respondent argues that it was known for 2 years that the complainant was due to retire and that the advertising of the two permanent posts was to meet a longstanding need to provide for continuity in cytology expertise. The respondent contends that it was open to the complainant to apply for one of the permanent posts.
6.8 I accept that the respondent had difficulties in recruiting cytologists. I also accept that the extension of the complainant's employment beyond his 67th birthday was to meet short term needs. The respondent contends that it was open to the complainant to apply for one of the permanent posts. In my view it was equally open to the respondent to offer the complainant a contract of indefinite duration without expecting the complainant to apply for the job he had been doing for 9 years. I believe that any employee under the normal retirement age of 65 of the calibre of the complainant who had been employed for 9 years on rolling temporary contracts would have been provided with a contract of indefinite duration. It is not my jurisdiction to decide whether or not the complainant had a legal entitlement to be provided with a contract of indefinite duration. However, I conclude on the balance of possibilities that the decision to provide him with a fixed term contract instead of a contract of indefinite duration was influenced by his being over 65 years of age. I therefore find that the complainant was discriminated against on the ground of age by not being offered the same terms of employment as a hypothetical younger comparator.
7 Decision
7.1 In reaching my decision I have taken into account all the submissions, written and oral that were made to me. 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.
7.2 I find that the respondent discriminated against the complainant on the age ground pursuant to section 6(2) of the Acts, by not being offered the same terms of employment as a hypothetical younger comparator contrary to section 8(6) of the Acts.
7.3 The complainant sought compensation of €30,000: €27,000 representing 6 months pay and €3,000 compensation for the effects of discrimination. In accordance with section 82 of the Acts I award the complainant €30,000 in compensation for the discriminatory treatment suffered. As this does not include any element of remuneration, it is not subject to income tax.
_______________
Niall McCutcheon
Director
6 January 2012.