EQUALITY OFFICER DECISION NO: DEC-E/2012/093
PARTIES
O'NEILL
(REPRESENTED BY BRIAN FOLEY BL -
INSTRUCTED BY MASON HAYES & CURRAN - SOLICITORS)
AND
FAIRVIEW MOTORS LTD
(REPRESENTED BY BRIAN CONROY BL -
INSTRUCTED BY O'SHEA BARRY - SOLICITORS)
File No: EE/2008/793
Date of issue: 18 July, 2012
Headnotes: Employment Equality Acts 1998- 2008 - sections 6, 8 and 34 - age - discriminatory dismissal -retirement - objective justification- purposive interpretation.
1. DISPUTE
This dispute involves a claim by Mr. John O'Neill ("the complainant") that he was (i) discriminated against by Fairview Motors Ltd. ("the respondent") on grounds of age, in terms of section 6(2) of the Employment Equality Acts 1998 - 2008 and contrary to section 8 of those Acts in relation to training and (ii) dismissed by the respondent in circumstances amounting to discrimination on grounds of age, in terms of section 6(2) of the Employment Equality Acts 1998 - 2008 and contrary to section 8 of those Act when it terminated his employment in July, 2008 when he reached the age of sixty-six years. The respondent rejects the complainant's assertions in their entirety and states that the termination of his employment was in accordance with the company policy of retirement for operational staff on reaching the age of sixty-six years.
2. BACKGROUND
2.1 The complainant was employed by the respondent as a motor mechanic from November, 1989 until his employment ceased at end July, 2008. He asserts that the respondent denied him access to training opportunities in November, 2006 and again during 2007 because it believed he was due to retire, initially in July, 2007 and then following discussions between the parties, in July, 2008. It is submitted on behalf of the complainant that this constitutes less favourable treatment of him on grounds of age contrary to the Acts. He further asserts that the respondent's unilateral decision to terminate his employment in July, 2008 solely as a consequence of him reaching the age of sixty-six years amounts to age discrimination contrary to the Acts. The respondent rejects the complainant's allegation that it discriminated against him on grounds of age as regards access to training. It further states that its decision to terminate his employment on him reaching the age of sixty-six years was based on a compulsory retirement age operated by it and submits that such actions do not constitute age discrimination in accordance with the exemption provided at section 34(3) of the Employment Equality Acts, 1998-2008 and seeks to rely on this provision in that regard.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2008 to the Equality Tribunal on 20 November, 2008. In accordance with his powers under the Acts the Director delegated the complaints to Mr. Vivian Jackson, Equality Officer for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaint commenced on16 March, 2011, the date the complaints were delegated to me. The parties had filed submissions and a Hearing on the complaint took place on 15 September, 2011.
3. SUMMARY OF COMPLAINANT'S CASE
3.1 The complainant states that he commenced employment with the respondent as a mechanic in November, 1989. He adds that he did not receive any written contract of employment during the time he worked for the respondent and that the respondent did not have a Staff Handbook. Consequently, he states that he was never informed he would be required to retire on his sixty-fifth birthday - 23 July, 2007. He states that in May 2007 the owner of the respondent (Mr. G) approached him and informed him (the complainant) that he would have to retire in a few months time on reaching the age of sixty-five years. The complainant states that he informed the respondent he felt fit and well and capable of continuing at work and he did not therefore want to retire. He adds that they discussed matters concerning the complainant's entitlement to a State Pension - which he would become entitled to at sixty-six years of age- that the respondent offered him two six month contracts to bring him to that age, which he refused and that it was agreed the complainant would continue to work as usual. In the course of the Hearing the complainant stated that he understood this to be an extension of his contract for a further year when the matter would be discussed again. He also rejected the respondent's assertion that there were issues with his performance in May/June, 2008 and offered explanations for the events which occurred.
3.2 The complainant states that he continued to work for the respondent after the abovementioned events. He adds that he wrote to the respondent in early May, 2008 advising that he did not wish to retire on reaching the age of sixty-six years. He states that he received no response to this letter and he subsequently approached Mr. G on the matter. The complainant states during this conversation - which was somewhat heated - Mr. G stressed that he (the complainant) would be retired at the end of the following July. The complainant states that there was no further communication between the parties on the matter until 29 July, 2009 when Mr. G approached him and told him that he would be taken off the payroll from the following Friday. The complaint submits that this amounts to discrimination of him on grounds of age contrary to the Acts as the only reason his employment was terminated was because he had reached the age of sixty-six years. The complainant states that to his knowledge no other mechanic has retired from the respondent on reaching the age of sixty-five years and he is not aware of any policy or practice generally in the industry of a retirement age. In the course of the Hearing the complainant stated that he expected to have been able to continue working for the respondent indefinitely so long as his health permitted and thought maybe given his particular expertise that he might move to the Stores Area, although nobody else had ever done this.
3.3 The complainant notes the determination of the Employment Appeals Tribunal in Kiernan v Iarnród Éireann1where that Tribunal held where an employer relies on the normal retirement age of the employee as a defence for lawfully terminating that person's employment, the precise retirement age should be given to the employee in writing and it is submitted on his behalf that this principle applies equally under the employment equality legislation. The complainant also relies on the determination of that Tribunal in Bannon v Two Way International Freight Services Ltd2 where it held that in circumstances where the complainant did not receive a contract of employment or a Staff Handbook, the respondent had failed to establish that a compulsory retirement age of sixty-five years was an integral part of the complainant's conditions of employment. The complainant also seeks to rely on the judgement of High Court in Donegal County Council v Porter & Others3 where Flood J held that the claimants had a legitimate expectation to continue in employment until the age of sixty years, once they were fit and capable of performing the functions attached to the post. It is submitted on behalf of the complainant that he was fit and capable of performing the tasks associated with his post and no medical assessment was undertaken by the respondent to assess his capability in this regard. It is further submitted on his behalf that no evidence was adduced by the respondent that a custom and practice of a particular retirement age existed at any time, either in the respondent or the sector generally, in respect of mechanics. It is further submitted that the SIMI Pensions Fund is not of particular relevance to the instant case as (a) it is not a mandatory fund and (b) the members of same amount to a small number of personnel in the industry. Finally, it is submitted on behalf of the complainant that the respondent cannot avail of section 34(4) of the Employment Equality Acts, 1998-2008 because the respondent never communicated to the complainant that it operated a mandatory retirement age. Moreover, it is argued that the exemption provided at that section requires objective justification4 and the respondent has failed to do so, noting that objective justification requires that the measure involved must have a legitimate aim and in addition must be proportionate and necessary to achieve that aim.
3.4 In terms of his allegation of less favourable treatment on grounds of age as regards training, the complainant states it was an essential part of his job that he maintained his knowledge of technological and other developments in the industry by attending "Dealer" specific training courses on a regular basis - which occurred on average twice a year. He adds that he attended such a course in November, 2006 at the instruction of Mr. S - the respondent's Service Manager. The complainant states that during this training course he was informed by the Instructor that he (the complainant) did not need to complete the examination at the end of the course because he was retiring. He adds that when he queried this comment the Instructor advised him that Ms. S had mentioned his (the complainant's) retirement to him. The complainant states that when he raised this matter with Mr. S he denied he knew anything about the complainant's retirement. The complainant states that at least one further training course took place between November, 2006 and July, 2008 and he was not sent on this course - although his younger colleagues were. He adds that the content of this training impacted on his capacity to perform his duties and that he obtained the information by liaising with these colleagues or accessing electronic manuals. It is submitted on behalf of the complainant that this treatment of him constitutes discrimination on grounds of age contrary to the Acts.
4. SUMMARY OF RESPONDENT'S CASE
4.1 The respondent rejects the complainant's assertions in their entirety. It agrees that the complainant commenced employment with it as a motor mechanic in July, 1989. It confirms that the complainant did not receive a written contract of employment, but states that the terms of his employment were well understood, including the condition that he was required to retire on reaching the age of sixty-five years. The respondent states that this was its policy on the matter and that it departed from this policy on compassionate grounds in respect of the complainant by extending his employment until he was sixty-six years old. In the course of the Hearing the respondent stated that the retirement policy was not in written format and consequently, it was never circulated to staff. The respondent (Mr. G) further stated that it had not discussed the policy with the trade union representing the complainant, although the issue in dispute was discussed with the relevant trade union representative, who considered that the respondent had treated the complainant fairly. Mr. G adds that the respondent introduced a new process in 2009 and all employees are aware of its policy as regards retirement. Finally, the respondent contends that sixty-five is the generally accepted retirement age for mechanics employed in the industry adding that it was unable to find a single person of that age in the industry who remained in employment.
4.2 The respondent states that it (Mr. G) spoke with the complainant in May, 2007 about his retirement the following July- when he reached the age of sixty-five. It adds that the complainant indicated he did not want to finish work on that date as his State Pension entitlements did not fall due until he was sixty-six years old. The respondent (Mr. G) adds that in light of these circumstances and in appreciation of the complainant's long service, he (Mr. G) agreed to permit the complainant work for a further year as an exceptional variation of the mandatory retirement age the respondent operated. Mr. G further states it was his understanding that the complainant was aware he would have to cease employment in July, 2008 and that he (the complainant) was satisfied with this position. In the course of the Hearing Mr. G stated that he never subsequently confirmed this understanding with the complainant in writing.
4.3 The respondent states that the matter did not arise again until May, 2008 when the complainant wrote to Mr. G advising that he did not wish to retire in July of that year. The respondent adds that Mr. G did not formally reply to this letter but merely restated that company's position in the course of conversation - that the complainant would be removed from the payroll at end July, 2008. The respondent states that the matter had come up in informal conversation between it and the Official of the complainant's trade union and that he (the official) was of the opinion the respondent had been fair to the complainant in the approach it adopted. In addition, the respondent points to the Pension Scheme organised by the Society of the Irish Motor Industry (SIMI), which indicates that the normal retirement age for members of that scheme is sixty-five years of age and submits that this is indicative of the retirement age in the industry.
4.4 The respondent states that certain difficulties emerged with the complainant's work and performance for a couple of years before his retirement. It adds that due to the excessive amount of time the complainant spent on a particular task which, it contends, resulted in him taking over five times the average industry recommended time, the respondent could only charge the client with a certain amount of "labour costs" and therefore had to absorb that uncharged costs. It adds that on another occasion the complainant overlooked tightening the bolts on the gearbox of a vehicle and had this oversight not been discovered in time it could have led to a serious accident. The respondent states that it believes these difficulties were related to the complainant's age and demonstrate that he no longer had the physical capability to perform his job. In the course of the Hearing Mr. G stated that these performance related issues were never formally raised with the complainant at that time. In conclusion on this point, the respondent adds that it must be extremely mindful of health and safety issues, from both an employee and client perspective and submits that the performance related difficulties which the complainant had supports it position that it was appropriate to operate a mandatory retirement age.
4.5 The respondent accepts that it terminated the complainant's employment on the basis of his age. It is submitted on behalf of the respondent that the manner in which it terminated the complainant's employment is immune from challenge on grounds of age discrimination pursuant to section 34(4) of the Employment Equality Acts, 1998-2008. It is further submitted that if the Tribunal finds section 34(4) is applicable to the instant case, it should proceed no further with the matter and cites the Determination of the Labour Court in McGovern v Eircom Ltd5 in support of this proposition and states that the Labour Court held in that case, having found that section 34(3) of the Acts (which is very similar to the provision advanced in the instant case) applied, that it had no jurisdiction to investigate the matter further. It is further submitted on behalf of the respondent that in circumstances where a mandatory retirement age operates section 34(4) of the Acts does not require that that retirement age is notified to the employee in writing. It submits that the authorities advanced by the complainant on this point are not relevant as they relate to claims under the unfair dismissals legislation. In addition, the respondent states that the complainant was on notice from the previous year that he would be required to retire in July, 2008 - although this was not in writing. In this regard the respondent seeks to rely on the judgement of Hedigan J in McCarthy v HSE6 as regards knowledge of the requirement to retire.
4.6 It is further submitted on behalf of the respondent (as stated previously) that section 34(4) of the Employment Equality Acts, 1998-2008 provides an absolute defence to the respondent operating a mandatory retirement age and in those circumstances it is not necessary for the respondent to provide objective justification for its actions in terms of Article 6 of the Framework Directive7. The respondent submits that to import such a requirement does violence to the statute and in any event, the Tribunal is not permitted to do so. In this regard it relies on the judgement of Charleton J in Minister for Justice, Equality and Law Reform and the Commissioner of An Garda Síochána v The Equality Tribunal8. In the alternative it is submitted on behalf of the respondent that if the Tribunal holds that its reliance on section 34(4) of the Acts requires objective justification then it has demonstrated objective justification in terms of the public interest as stated by the ECJ (as it then was) in Palcaios de la Villa v Cortefiel Servicios SA9. The respondent notes that McKechnie J made reference to the judgement of the ECJ at paragraph 92 of his judgement in Donnellan v Minister for Justice, Equality and Law Reform & Others10 wherein the learned judge noted that health and safety issues and staff planning may constitute legitimate aims for applying a retirement age.
4.7 As regards the equal treatment element of the complainant's claim the respondent accepts that it was normal for the complainant and other appropriate personnel to attend specific training courses in order to update and maintain their technical knowledge and developments in the area. It further accepts that during late 2006 the possibility of him not attending these courses was discussed with him as he was retiring in July, 2007. The respondent further accepts that the complainant did not attend some of these courses and states that at the time it was of the view that there was no need to send him. It adds that the other younger mechanics would have gotten more from the courses, that Mr. S would select 2/3 employees to attend and in any event given the information delivered at these courses was available "on-line" and the complainant could access it if necessary. It therefore rejects the assertion that the complainant was treated less favourably on grounds of age contrary to the Acts.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision by me are whether or not the respondent (i) discriminated against the complainant on grounds of age, in terms of section 6(2) of the Employment Equality Acts 1998 - 2008 and contrary to section 8 of those Acts in relation to training and (ii) dismissed the complainant in circumstances amounting to discrimination on grounds of age, in terms of section 6(2) of the Employment Equality Acts 1998 - 2008 and contrary to section 8 of those Act when it terminated his employment in July, 2008 when he reached the age of sixty-six years. In reaching my decision I have taken into consideration all of the submissions, both written and oral, submitted to the Tribunal as well as evidence advanced at the Hearing.
5.2 Section 85A of the Employment Equality Acts 1998- 2008 sets out the burden of proof which applies in claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of Decisions of this Tribunal and the Labour Court and it requires the complainant to prove, on balance of probabilities, the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Equality Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required his case cannot succeed.
5.3 I shall deal with the complainant's claim that he discriminated against by the respondent on grounds of age contrary to the Acts when from November, 2006 he was prevented from attending certain external training courses connected with the job he was performing. It is common case that the complainant had previously attended these training courses during his period of employment, as did his colleagues and that it was normal for staff to attend these courses in order to update and maintain their technical knowledge and keep abreast of developments in the area. The respondent accepts that during late 2006 the complainant was approached and the possibility of him not attending these courses was discussed with him as he was retiring in July, 2007. The respondent further accepts that the complainant did not attend some of these subsequent courses and states that at the time it was of the view that there was no need to send him. It adds that the other younger mechanics would have gotten more from the courses, that Mr. S would select 2/3 employees to attend and in any event given the information delivered at these courses was available "on-line" and the complainant could access it if necessary. In light of the foregoing it is clear that the complainant was treated differently to his younger colleagues as regards access to these training courses and that his access was restricted because he was approaching retirement age. I am therefore satisfied that the complainant has established a prima facie case of less favourable treatment on grounds of age contrary to the Acts. The respondent has failed to rebut the inference of discrimination raised and consequently, the complainant is entitled to succeed with this element of his complaint.
5.4 I shall now examine the complainant's assertion that he was dismissed in circumstances amounting to discrimination contrary to the Acts. It is common case that the respondent unilaterally decided to terminate the complainant's employment with it in July, 2008- on the complainant reaching the age of sixty-six years - after it had attempted to do the same thing one year previously on the complainant's 65th birthday but had agreed to extend the complainant's employment for a further year in order to enable him work up to the age where he would be eligible for State old age benefits. In Donnellan v The Minister for Justice, Equality and Law Reform & Others11 McKechnie J held that the termination of an employee's employment solely on reaching a particular age (in that case sixty years old) constituted direct discrimination on grounds of age contrary to the Acts. It follows therefore, in the instant case, that the complainant has discharged the initial burden of proof required and the respondent must rebut the inference of discrimination raised.
5.5 The first argument advanced on behalf of the respondent is that the compulsory retirement age of sixty-five years which it operated, is governed by section 34(4) of the Employment Equality Acts, 1998-2008 and that provision grants an absolute defence to the respondent. It further submits that this section is not subject to a test of objective justification by reference to Article 6 of the Framework Directive12 and that to import such a requirement does violence to the statute and in any event, the Tribunal is not permitted to do so. In this regard it relies on the judgement of Charleton J in Minister for Justice, Equality and Law Reform and the Commissioner of An Garda Síochána v The Equality Tribunal13. I fully accept the respondent's arguments that this Tribunal has no jurisdiction to disregard a provision in a statute or to correct a mistake in one. However, I am of the view that there is a significant difference in either of the two aforementioned scenarios and giving a provision a purposive interpretation so as to reflect the presumed intention of the Oireachtas to faithfully transpose a provision of European law. I am satisfied that I have an obligation to interpret these Acts in a manner that is harmonious 'in the light of' directives14. The interpretative obligation set out in by the ECJ (as it them was) in Von Colson15 was approved in this jurisdiction by the Supreme Court in Nathan v Bailey Gibson16. Moreover, in Donnellan v The Minister for Justice, Equality and Law Reform & Others.17 McKechnie J stated, in looking at the regulations governing the application of compulsory retirement ages of senior members of An Garda Síochána, that "national measures relating to retirement ages are not excluded from consideration under Directive 2000/78/EC. 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 be appropriate.". I am satisfied that McKechnie J's comments are authority for the proposition that I can construe section 34(4) of the Acts in light of Article 6(1) Directive 2000/78/EC18. Consequently, it falls to the respondent to satisfy me that the approach it adopted is "objectively and reasonably justified by a legitimate aim ... and the means of achieving that aim are appropriate and necessary".
5.6 It is accepted by the respondent that no written contract of employment existed but that the complainant should have known of the compulsory retirement age it operated. I cannot accept that proposition as the complainant was the first person to cease employment with the company due to retirement. Moreover, the respondent confirmed that (at the relevant time) its retirement policy was not set down in writing and therefore had never been circulated to staff. It is noteworthy that the Employment Appeals Tribunal and the Superior courts have consistently held that an employee must be aware of the retirement age operated by the employer and that the best way for an employer to ensure the employee possesses such knowledge is to set it out in writing. The respondent further submits that it operated a compulsory retirement age of sixty-five years as this was the custom and practice in the industry. However, neither party could identify a single car mechanic that retired from the sector at that age. The evidence was that most appear to leave the sector at a younger age and go into business for themselves. However, as stated by Maguire J in O'Reilly v The Irish Press19 when examining the circumstances where custom and practice might imply a term into a contract of employment "The absence of actual instances of the usage in practice [of a notice period] would no, however, preclude me from holding that the usage existed if I were satisfied that it was well known and universally recognised". Ms. X, who is Training and HR Manager with SIMI, attended at the Hearing and gave evidence that whilst the Pension Scheme it facilitates contains a retirement age of sixty-five years but that the Scheme is not mandatory and only has a few hundred members. It light of the foregoing I cannot accept that it was the custom and practice that the generally accepted retirement age for car mechanics in the industry was sixty-five years. Finally, I note the respondent states that an Official from the complainant's union was of the opinion that the respondent had been fair to the complainant in the approach it adopted. However, this is all it is - an informal opinion from a trade union Official and therefore it has no relevance to the instant case.
5.7 The respondent submits that (i) the health and safety of the complainant, (ii) the failing capacity of the complainant to perform the duties attached to the post and (iii) staff rotation or planning constitute legitimate aims in terms of Article 6 of the Framework Directive20 and that the means of achieving those aims - the setting of a mandatory retirement age of sixty-five years - is appropriate and necessary in terms of that Article. In the first instance I have to say that I cannot accept the respondent operated a compulsory retirement age of sixty-five years in circumstances where it was able to ignore it and extend the complainant's employment for a further year, however laudable the reasons for its actions. It is clear however, that from July, 2007 the complainant was on notice his employment was to cease on his sixty-sixth birthday, whether he agreed with the proposition or not. I shall examine the first legitimate aim advanced by the respondent - the health and safety of the complainant. Whilst on the face of it this may appear to be a legitimate aim I do not accept it as such in the instant case. Firstly, the respondent had previously permitted the complainant to remain in the workshop alone for several hours after normal working hours had ended without any problem. It appears that this practice diminished from late 2006 onwards and it is difficult to see what health and safety issues arise in respect of the complainant at 66 years of age when he is working with colleagues in a workshop which exceed those that could have existed when he was alone in a workshop after working hours when he was only two years younger. Consequently, I am not satisfied that this constitutes a legitimate aim in terms of Article 6 of the Framework Directive.
5.8 The respondent also asserts that the failing capacity of the complainant to perform the tasks associated with his post due to his age and the potential consequences of his incapacity on the safety of customers' amounts to a legitimate aim. It contends that the complainant was taking longer to perform certain tasks and was also making errors at work which had potentially serious consequences for customers and cites two particular incidents in support of this assertion. The first example refers to a situation where it is alleged the complainant took five times the industry norm to fit a tow bar - and consequently the respondent had to absorb the additional labour costs. The complainant states that this particular job was atypical, complex in nature and had never been attempted before by anyone in the respondent workshop, consequently it took a significant amount of time to complete. He adds that on completion of the job Mr. S stated that the respondent would never take on a similar task again. The second example refers to an incident where it is alleged the complainant failed to tighten bolts on a gear box and only this oversight was detected there could have been serious consequences for the customer. The complainant rejects the respondent's assertion that he failed to tighten the bolts in question, stating that a number of other employees also worked on the gearbox in question. Having carefully considered the evidence adduced by the parties on these issues I prefer, on balance, the complainant's version of events. In reaching this conclusion I note that (i) these incidents are alleged to have happened in the months immediately before the complainant's retirement and that they were never raised with him at the time and (ii) that they occurred after the complaint had raised considerable resistance to the respondent forcing him to retire. I therefore find it difficult to accept that an employee of the complainant's experience, who prior to that had an unblemished record - indeed the respondent had extended his employment for a further year in July, 2007 - would suffer such a dip in performance. In light of the forgoing I find that the circumstances set out by the respondent do not amount to a legitimate aim in this instance - although I note that such a reason could form the a component of the argument of objective justification in principle21.
5.9 Finally, the respondent asserts that staff rotation/ planning constitute the legitimate aims in terms of Article 6 of the Framework Directive. Such a reason has been accepted, in principle, as amounting to objective justification22. However, in the instant case I note the respondent's evidence that the complainant was never replaced. Consequently, it cannot rely on this argument. In conclusion, in light of my comments in this and the preceding two paragraphs I find that the respondent has failed to show that its decision to apply the retirement age it did is objectively justified in terms of section 34(4) of the Employment Equality Acts when construed in light of Article 6(1) Directive 2000/78/EC23. I feel it necessary to state that some of the explanations advanced by respondent in terms of the operation of a compulsory retirement age have been previously accepted by the Tribunal as elements of a defence of objective justification24. However, in the instant case I find as a matter of fact that such justification was not made out by the respondent. Consequently, the complainant is entitled to succeed in this element of his complaint.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2011. I find that -
(i) the respondent discriminated against the complainant on grounds of age in terms of section 6(2) of the Employment Equality Acts 1998-2008 and contrary to section 8(7) of those Acts when it denied him access to work related training courses from November, 2006 until the cessation of his employment.
(ii) the respondent dismissed the complainant in circumstances amounting to discrimination on grounds of age in terms of section 6(2) of the Employment Equality Acts 1998-2008 and contrary to section 8 of those Acts when it terminated his employment in July, 2008 upon him reaching the age of sixty-six years.
6.2 Section 82(1) of the Employment Equality Acts, 1998-2011 sets out the redress which an Equality Officer can order when a complaint of discrimination is upheld. The section provides that I can order re-instatement or re-engagement, with or without compensation. At the outset of the Hearing the complainant confirmed that the redress he sought was compensation. In light of this I order, in accordance with my powers under that section, that the respondent pay the complainant the sum of €30,000 by way of compensation for the distress suffered by him as a consequence of the discrimination he was subjected to by the respondent. This award does not contain any element in respect of remuneration and is therefore not subject to PAYE/ PRSI Code.
_______________________________
Vivian Jackson
Equality Officer
18 July, 2012
Footnotes
1 [1996] ELR 12
2 UD 127/03
3 [1993] ELR 101
4 Kiernan v Longford County Council DEC-E2011-067
5 EDA 1114
6 [2010] IEHC 75
7 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation.
8 [2009] IEHC 72
9 Case C-411/05
10 [2008] IEHC 467
11 [2008] IEHC 467
12 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation.
13 [2009] IEHC 72
14 Case C-14/83 Von Colson and Kamann v Land Nordrhein-westfalen [1984] ECR 1891
15 Case C-14/83 [1984] ECR 1891
16 [1998] 2 ~IR 162
17 [2008] IEHC 467
18 Council Directive of 27 November, 2000 establishing a general framework for equal treatment in employment and occupation on several grounds including age.
19 [1937] 71 ILTR 194
20 Council Directive of 27 November, 2000 establishing a general framework for equal treatment in employment and occupation on several grounds including age.
21 See for example Rosenbladt v Oellerking GmbH ECJ Case C-45/09
22 Ibid.
23 Council Directive of 27 November, 2000 establishing a general framework for equal treatment in employment and occupation on several grounds including age.
24 See for example Saunders v CHC Ireland Ltd. DEC-E2011/142