THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2013 - 062
PARTIES
Ms Ann Cooney
(represented by Ms Deirdre Gavin, B.L., instructed by Joanne Hoban and Co., Solicitors)
-V-
Finglas Sports Development Group
(represented by Patrick F. O'Reilly & Co., Solicitors)
and
FÁS
(represented by Mr Marcus Dowling, B.L., instructed by William Fry, Solicitors)
File References: EE/2010/292
EE/2010/294
Date of Issue: 25th June 2013
Table of Contents
Claim 3
Summary of the Complainant's Written Submission 3
Summary of the Respondents' Written Submissions 4
Conclusions of the Equality Officer 4
Correct Respondent 4
Substantive Case 7
Decision 11
Keywords: Correct respondent - control - age - discriminatory dismissal - public policy defense - S. 34(4) - Art 6 of the EU Framework Directive 2000/78/EC
1. Claim
1.1. The case concerns a claim by Ms Ann Cooney that Finglas Sports Development Group and FÁS discriminated against her on the ground of age contrary to Section 6(2)(f) of the Employment Equality Acts 1998 to 2008, in terms of conditions of employment, discriminatory dismissal and other discriminatory conduct.
1.2. The complainant referred complaints against both respondents under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 19 April 2010. A submission was received from the complainant on 8 December 2010. No submission was received from the first-named respondent, but a submission was received from the second-named respondent on 20 January 2011. On 18 June 2012, in accordance with his powers under S. 75 of the Acts, the Director delegated the case 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 30 November 2012, which was adjourned and resumed and concluded on 8 May 2013.
2. Summary of the Complainant's Written Submission
2.1. The complainant states that her date of birth is 29 October 1943. She was employed by the first-named respondent on one-year fixed term contracts since July 2004, as a general operative. These contracts were renewed each year in 2005, 2006, 2007, 2008, and 2009. The complainant does not have copies of these contracts.
2.2. It appears (the complainant's submission is not wholly precise on this fact) that she was dismissed from her employment once she had turned 66. The complainant states that she was dismissed solely on the ground of her age.
3. Summary of the Respondents' Written Submissions
3.1. As noted above, the first-named respondent did not make a written submission to the Tribunal.
3.2. The second-named respondent denies discriminating the complainant as alleged or at all. It submits that it is a stranger to the complaint, as it was not the complainant's employer within the meaning of the Acts. It submits that the complainant was in the employment of the first-named respondent under a CE Scheme, an active labour-market programme financed by the second-named respondent.
3.3. The second named respondent does not make funding available to CE sponsors, such as the first-named respondent, in respect of participants or supervisors aged 66 years or over. This follows a direction of the Department of Enterprise, Trade and Employment, as it was then, in 2005. The reason for this direction, for which the second-named respondent submitted a response to a Parliamentary Question by the Department in evidence, is that people become eligible for the State pension at age 66, and should therefore not be also eligible for labour market measures.
4. Conclusions of the Equality Officer
Correct Respondent
4.1. A preliminary issue arises as to the correct respondent for the complainant's complaint, and whether the named respondents are jointly or separately responsible, or indeed whether the second named respondent was correctly named as a respondent at all. The second-named respondent vigorously disputes this, on the ground that it did not have a contractual employment relationship with the complainant.
4.2. However, from all the evidence adduced in the submissions and at the hearing of the complaint, it is clear that the second-named respondent wholly controlled the complainant's eligibility for her employment with the first-named respondent, that it wholly funded her employment with the first-named respondent, and that the condition that her employment was to end the day before her 66th birthday, and the concurrent de-funding of her employment by the second-named respondent to the first-named respondent - all of which were confirmed in evidence - does raise the question of a joint responsibility of the two respondents. It is common case that the complainant's employment ended solely because she reached the age of 66, but from all the evidence adduced, it is not clear how the first-named respondent could have possibly avoided such potentially discriminatory conduct, given that it was operating under the rules of the second-named respondent.
4.3. The second-named respondent cited the case of O'Keeffe v. Hickey and ors [2008] IESC 72 in support of its position that it could not be liable in this complaint. However, this case was one of gross misconduct of a single employee, a school teacher, against his pupil. It did not concern something like a condition of employment in the contract for teachers as set down by the Department of Education and Skills, which an individual school would have no choice but to implement. As it is, in O'Keeffe, the Minister for Education and the State were exonerated of vicarious liability for the sexual abuse the plaintiff suffered at the hands of the first-named defendant. Hardiman J drew on extensive analysis of the tri-partite employment relationship that characterises the employment of teachers in the state, and found that it was the church authorities, via local board of management, rather than the State, who ran the school, employed the teacher in question and controlled his actions.
4.4. However, it is worth noting that even in a case which concerned vicarious liability in tort, rather than a potential discriminatory provision in an employment scheme, Hardiman J noted that "even on the basis of the regime mandated by Moynihan, which has contributed to so much litigation in the intervening years, the essence of the liability is, as McMahon and Binchy agree, control." In O'Keeffe, arguably the Minister for Education could do little to control the teacher accused of sexual abuse of his pupil, compared to the local school management. On the other hand, if there was a potentially discriminatory provision in the contract of employment the Department sets for teachers paid by it, the school in question would not have been able to do anything about it.
4.5. Therefore, in my opinion, the facts in the complaint on hand are much closer to those before Dunne J. in Catholic University School v. Dooley & Scannell [2010] IEHC 496. In this case, the two respondents to their employer's appeal were privately employed teachers who had claimed less favourable treatment under the Protection of Employees (Part-Time Work) Act 2001 and the Protection of Employees (Fixed-Term Work) Act 2001, than other teachers at their school who were paid by the Department of Education. Dunne J in her judgement distinguished O'Keeffe by way of a careful examination of the contracts of Mr Dooley and Ms Scannell, and found that while the school determined their own contracts and pay, it had "no hand, act or part" in the pay and conditions of employment set down by the Department of Education for teachers on its payroll. Dunne J goes on to state that
In determining the employer for the purposes of the legislation in relation to agency workers,the legislation expressly provides that the party paying the worker is, for the purposes of the legislation, the employer. I think the school is an analogous position. I do not accept that the chosen comparators have the same type of employment contract or relationship as the claimants with the school. To that extent, it seems to me that the Department has to be viewed as the employer of the chosen comparators for the purpose of the legislation.
4.6. It must be noted that the Employment Equality Acts have the same provision in S. 2(3)(c) where is says: "In relation to an agency worker, the person who is liable for the pay of the agency worker shall be deemed to the employer". I am therefore satisfied that the analogy drawn by Dunne J equally applies to the facts in the case on hand.
4.7. I am further satisfied that in respect of the specific complaint on hand, where a position is de-funded by the second named respondent when a worker filling it turns 66, and expressly for that reason, in pursuit of a public policy objective, the second-named respondent is an employer of the complainant for the same reasons as those elucidated by Dunne J. It is clear to me that the first-named respondent, while it was the complainant's employer in terms of the day-to-day control of her work, simply did not have the gift of continuing her employment beyond her 66th birthday because it would not receive the necessary monies from the second-named respondent to do so. The complainant's contract of employment with the first-named respondent was introduced in evidence, and it expressly stated that her employment was contingent on receipt of funding from the second-named respondent.
Substantive Case
4.8. The main issue for decision in this case is then whether the complainant was discriminatorily dismissed within the meaning of the Acts. In light of the undisputed fact that her dismissal was solely due to her age, I am satisfied that she has succeeded in establishing a prima facie case of possible discriminatory treatment which is for the second-named respondent to rebut, since, as previously noted, the first-named respondent acted within a framework of rules imposed on it by the second-named respondent for the purpose of the complainant's employment. Therefore, while both respondents are the employers of the complainant within the meaning of the Acts, in the matter of her dismissal, which was announced to the complainant by a staff member of the first-named respondent, the first-named respondent effectively acted as an agent for the implementation of the rules set by the second-named respondent.
4.9. In terms of a rebuttal of the presumption of discrimination that has thus arisen, the second-named respondent did not seek to rely on the provisions of S. 34(4) of the Acts, but rather entered a very comprehensive defence based on public policy grounds. In so doing, the second-named respondent showed itself cognisant of the fact that the Acts, inter alia, implement the EU Framework Directive 2000/78/EC on equal treatment in employment and occupation. Domestic legislation must be interpreted in light of the wording and purpose of European legislation. Article 6 of the Directive 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.
Such differences of treatment may include, among others:
the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection
4.10. The ECJ, as it was then, affirmed this obligation of courts and tribunals in the case of Werner Mangold v Rüdiger Helm Case C-144/04, where the ECJ set down the principle of non-discrimination on the ground of age, among others, as a fundamental principle of community law and held that is was "the responsibility of the national court, hearing a dispute involving the principle of non-discrimination in respect of age, to provide, in a case within its jurisdiction, the legal protection which individuals derive from the rules of Community law and to ensure that those rules are fully effective, [...]" [para 77]
4.11. The second-named respondent argued that since the Community Employment Scheme is a labour activation measure, it falls squarely within both the exemption set out in the Directive, as well as into the parameters set out by the ECJ in Palacios de la Villa v. Cortefiel Servicios SA [Case C-411/05]
4.12. The second-named respondent stated that since there are a fixed number of places available on the Community Employment Scheme, there are various eligibility criteria for the scheme and various limitations on the length of time that a worker can spend in the scheme. Older workers do in fact enjoy preferential treatment in this regard, as workers over the age of 55 may spend a total of six years in the scheme, whereas the limit for workers under 55 is three years. Persons in receipt of a qualifying disability-related payment from the Department of Social Protection are eligible for one additional year on top of these, i.e. four years for those under 55 and 7 years for those aged 55 to 65.
4.13. The reason for the upper age limit of 65 years is that on their 66th birthday, participants become eligible for the state pension. It is the second-named respondent's position that in line with the general policy of the State of not paying two social protection related payments to the same person at the same time, it is public policy not to pay a person for participation in a labour-activation programme once they are eligible for a pension.
4.14. The second argument of the respondent is that this policy also frees up places on the scheme for other participants. Counsel argued that this is very much a legitimate employment policy and labour market objective and I agree. It is wholly reasonable and certainly legitimate to aim a labour activation measure like the CE scheme at unemployed people who, by reference to the current age of eligibility for the state pension, can be seen as being of working age. I note that the scheme is already more favourable to older workers and those with disabilities, including older workers with disabilities.
4.15. In terms of whether the specific measure contested in these proceedings, the fact that eligibility for participation in the scheme ends on the eve of someone's 66th birthday, is appropriate and necessary, I am certainly satisfied that it is appropriate in light of the fact that participants become seamlessly entitled to another state payment and are therefore maintaining an income.
4.16. The complainant's own situation in this regard was somewhat unique in that she was in receipt of a widow's pension during her participation in the CE scheme, which she was allowed to keep, a practice discontinued by the Department of Social Protection since 2012. The complainant stated that she was written to by the Department, three months before her 66th birthday, and was asked whether she wished to continue to receive her widow's pension or receive the state pension. She elected to continue to receive the widow's pension.
4.17. Insofar as her income from the CE scheme ended, the complainant herself was certainly in a less favourable economic condition than before, but I am not satisfied that this is connected to her age. Rather, it appears to me to be connected to her marital status of being a widow. However, even so, it would appear that the complainant enjoyed more favourable treatment compared to persons of another marital status in that officials from the Department of Social Protection who gave evidence at the hearing stated that this effective "double payment" to widowed participants was an exception within the overall policy framework and as noted, has since been discontinued.
4.18. In terms of the second limb of the test, that of necessity, I am satisfied that the age limit of 66 for involvement in the scheme is only one of a number of eligibility critera set by the respondent, which arise from the necessity to allocate places on the scheme as fairly and effectively as possible. This arises from the fact that the scheme is not a universal entitlement like child benefit. I accept the respondent's argument that since places on the scheme are limited, there is a need for turnover of participants (also evidenced by the maximum number of years one may stay on the scheme), in order to spread the benefit as widely as possible. The upper age limit for participation is only one of a bundle of measures designed to achieve this. I concur with counsel for the second-named respondent that this places the respondent squarely within the parameters identified in the Palacios case.
4.19. In summary, I am satisfied that the second-named respondent has succeeded in rebutting a presumption of discrimination on the ground of age in the case on hand, and that its policy of limiting participation in the Community Employment Scheme to persons under the age of 66 is wholly compliant with the Acts in harmonious interpretation with European law.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that neither respondent discriminatorily dismissed Ms Ann Cooney on the ground of her age, contrary to S. 8(6) of the Acts.
______________________
Stephen Bonnlander
Equality Officer
25 June 2013