Decision DEC-E2012-096
PARTIES
Gabriel O'Farrell
(represented by Julienne Paye, Grogan and Associates Solicitors)
versus
Mercury Engineering Ltd.
(represented by Jean Winters, Construction Industry Federation)
File reference: EE/2008/884
Date of issue: 24th July 2012
Keywords: Employment Equality Acts, Discriminatory Dismissal, Age, Discriminatory selection for redundancy
Dispute
1.1 This case concerns a complaint by Gabriel O'Farrell against his former employer Mercury Engineering Ltd that he was discriminatorily dismissed on the grounds of age in terms of 6 (2)(f) of the Employment Equality Acts 1998-2011 [hereinafter referred to as 'the Acts'].
1.2 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 17th December 2008. In accordance with his powers under Section 75 of the Acts, the Director delegated the case on 20th June 2011 to me 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 22nd June 2011. The final correspondence received in relation to information sought by the Equality Officer was on 10th November 2011. 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 was employed as an electrician by the respondent from 24th August 1987 to 3rd July 2008 when he was made redundant. He was aged 47 at that time. The complainant submits that he was the oldest and most experienced of the electricians made redundant. All the electricians retained at that time were younger than him and had less service. He also maintains that he had a far better disciplinary record than many of those retained. Mr O'Farrell submits tat many of the younger workers used to call in sick due to hangovers. In contrast, according to Mr O'Farrell the last day he missed work due to sickness, of any kind, was in 1982. He maintains that the foreman's brother was kept on who was also much younger. He further submits that the way he was dismissed was inhumane. After 21 years working for the respondent, he was told to finish up work in 40 minutes.
2.2 He accepts that with the recession (although he points out that the respondent has obtained contracts for a few big projects in recent years) the respondent may have had to make him redundant subsequently but his experience, loyalty to the company and skill set should not have been ignored and that others should have been selected before him
Summary of the respondent's case
3.1 The respondent submits that he was a valued employee as he was conscientious and hardworking. They regretted having to make him redundant but it was because the site where Mr O'Farrell was working was nearing completion in July 2008. Due to the economic downturn, the company was not in a position to transfer Mr O'Farrell to another site. Mr O Farrell declined the offer to appeal the decision to select him for redundancy. They submit 1,000 employees have been made redundant from the company since 2008. These include 9 electricians that were older than him and 108 electricians who were younger than him in that time. Of the 270 tradesmen they had retained in their employ at the time of the hearing 46 were older than the complainant.
3.2 Regarding the last site Mr O'Farrell worked on for the respondent, there were approximately 50 people working there at the beginning of 2008. Each electrician was working on specific tasks i.e. fire alarms, lighting etc. As work was winding down and there was no other site to transfer workers to, they were made redundant. 5 were made redundant in March 2008 and they were significantly younger than the complainant. By July 2008, the site had reached 'construction complete' stage. Mr O'Farrell and 2 electricians who were in their twenties were made redundant. 9 electricians remained on site to do work that the respondent submits Mr O'Farrell was unable to do e.g. audio-visual in meeting rooms, electrical testing and handover certs. They submit that Mr O'Farrell was selected in accordance with the company's selection criteria i.e. skills experience, disciplinary record, flexibility and service. The respondent points out that it is their policy to compel workers to finish on the day they are told they are being made redundant to prevent sabotage. In direct evidence, Mr O'Farrell's line manager was emphatic that the bad news was given in a gentle way.
3.3 The respondent further submits it is an equal opportunities employer and submitted its equality policy - Commitment to Equal Opportunities as evidence.
Conclusions of the Equality Officer
4.1 The issue for me to decide is whether or not Mr O'Farrell 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 [age in the instant case] 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.'
4.3 Before turning to the main issue, it emerged at the hearing that the reply from Mercury Engineering issued on 11th August 2008 to Mr O'Farrell's query on why he was made redundant was significantly different to the one kept on file. The letter Mr O'Farrell received by registered post, sent by the then Group HR Manager who is no longer working for the company, contained much less detail than the one kept on file. The letter Mr O'Farrell received consisted of 3 sentences pointing out his right of appeal. The letter retained on file consisted of 10 paragraphs explaining the company's procedure for making people redundant. While I accept that the current management of the respondent was not aware of this dishonesty until the day of the hearing, the action in 2008 is one I must strongly condemn. Apart from being a serious breach of fair procedures it impedes my investigation as the Tribunal needs to be confident that all parties have true copies of correspondence sent.
4.4 It is common case that Mr O'Farrell was the oldest and most experienced electrician to be made redundant by the company between 1st September 2006 and 7th August 2008. The respondent acknowledges that of the 4 criteria he would have scored very highly on flexibility, disciplinary record, and service. They submit that he did not have the specific skills to finish the jobs necessary on that site. At the hearing, Mr O'Farrell vehemently denies this. He said he was able to do all this tasks and specified sites where he did them before. He said he could not work as an electrician for over 25 years if he was not be able complete these tasks. His line manager did not deny this in direct evidence; he merely said that they did not like to switch electricians mid-task.
4.5 Turning to the respondent's rebuttal, there is no documentation, whatsoever, of this decision making process by either his line manager or the Human Resources Section as to who was to be made redundant. It is easy to see how this happened in a situation where many people were being made redundant. I bear in mind that the lack of documentation does not, of itself, evidence discrimination. The role of the Tribunal is not to punish the respondent for not documenting such decisions. However, that failure makes it much difficult for the respondent to explain the decisions and to state with clarity the grounds upon which the decisions were taken. Neither is the statistical evidence sufficient for the respondent to rebut the case.
4.6 I am also cognisant of the seminal Labour Court case Portroe Stevedores and Nevins, Murphy and Flood:
Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the Court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution. Finally, it must be borne in mind that the proscribed reason need not be the sole or even the principal reason for the conduct impugned; it is enough that it is a contributing cause in the sense of being a "significant influence" (see Nagarajan v London Regional Transport [1999] IRLR 572, per Lord Nicholls at 576).
In the case of age discrimination particular additional difficulties can arise. There can be problems of definition in that, unlike the other proscribed grounds, there is no definitive point of distinction between the young, the middle aged and the old. These classifications, particularly at their interface, are often based on perception or opinion which can vary from one individual to another. Ageism, in relation to employment, is generally the product of an attitude of mind which stereotypes those above a certain age as less adaptable to change, or more difficult to train in new skills, or less willing to take on new work practices.
The line manager's direct evidence is at variance with the respondent's stated policy on selection for redundancy. Even though Mr O'Farrell was the electrician with the longest service and he was an excellent employee; he was let go. Based on the totality of the evidence, I find that Mr O'Farrell has established a prima facie case of discriminatory dismissal on the grounds of age and the respondent has failed to rebut it.
Decision
I have concluded my investigation of Gabriel O'Farrell's complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Acts, that the complainant was discriminatorily dismissed on the grounds of age.
Pursuant to 82 (1) (c) I order that the respondent pay the complainant €22,000 which is roughly equivalent to six months salary. In calculating the amount of the award, I am cognisant of the possibility that the respondent may have been obliged to make him redundant at a later stage due to the downturn of the construction sector. However, I find his selection for redundancy at that time was discriminatory.
This award is redress for the infringement of Mr O'Farrell'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