EDA139

In keeping with the normal practice of the Court the parties are referred to herein as they were at first instance. Hence, Mr Woods is referred to as the Complainant and St Luke’s Hospital is referred to as the Respondent.

Background
The Complainant commenced employment with the Respondent on or about 30^thNovember 1998 as a locum medical scientist. He worked in the hospital’s cytology department. He had previously worked as a senior manager in the Royal Victoria Hospital Belfast from which he had retired some two years previously.

The Complainant was initially employed in a temporary capacity, for an expected period of eight weeks, to provide cover for another medical scientist who was on sick leave. Following the return of that person the Complainant continued in the employment in a temporary whole time capacity. This period of employment was not governed by a contract of employment in writing. His employment came to an end on 18^thFebruary 2008. At that time he was approaching his 68^thbirthday.

The Complainant contends that his employment was terminated by the Respondent on grounds of his age. He referred a complaint to the Equality Tribunal on 25^thJuly 2008. The complaint was investigated by the Director of the Equality Tribunal who, in a decision dated 6^thJanuary 2012, found for the Complainant. He was awarded him compensation in the amount of €30,000.

The Respondent appealed to this Court.

Position of the parties

The Respondent
The Respondent contends that the Complainant retired voluntarily in accordance with his own expressed wishes. They say that in or about September 2006 the Complainant was asked about his intentions regarding retirement. He told that the Respondent that he would like to retire on reaching his 67^thBirthday. Arrangements were put in place to accommodate the Complainant’s retirement at that time. However, he was asked to remain on in employment to cover the maternity leave of a colleague. At the end of that period the Complainant’s retirement took effect. The Respondent contends that a retirement party was organised for the Complainant and that he participated in its organisation. The Respondent further contends that it received no indication that the Complainant was unhappy about his retirement until he initiated his complaint to the Equality Tribunal some five months later.

The Complainant

The Complainant accepts that he had indicated a willingness to retire at age 67 although he claims to have done so under pressure from the Respondent. In any event he did not retire at 67. On or about 23^rdFebruary 2007 he was issued with a fixed-term contract which was expressed to run from 1^stJanuary 2007 until 30^thJune 2007 (he was 67 on 21^stApril 2007). This contract was later extended to 31^stJuly 2007. On the expiry of this contract the Complainant was furnished with another fixed-term contract to cover the maternity leave of a colleague. That contract expired on 18^thFebruary 2008 and was not renewed. He claims that in or about November 2007 he was informed that this contract would not be renewed on its expiry.

The Complainant believed that there would be no further work available to him at the end of the period of maternity leave cover. However, in or about January 2008, the Respondent employed two trainee cytologists in a permanent capacity. The Respondent was remunerated at the top of the applicable pay scale. The two younger cytologists were remunerated at the bottom of the scale. The Complainant believes that his dismissal was to make way for younger staff thus reducing the payroll costs of the Respondent.

The facts
The Court heard oral evidence from the Complainant, Mr Derek Magee, who was chief medical laboratory scientist at the Respondent’s cytology department, Ms Leslie Turner, a former medical scientist with the Respondent and Ms Valerie Madigan who is the Respondent’s Human Resources Manager. From the testimony given the Court has reached the following conclusions as to the material facts:

The Respondent’s medical laboratory provided a service relating to cervical smear testing. It had difficulty in recruiting a sufficient number of cytologists for this purpose. The Complainant was known to Mr Magee as an experienced and well reputed scientist in this field. The Complainant had retired from his former post in Belfast. He was approached by Mr Magee and asked to take up temporary employment with the Respondent. The Complainant agreed and flexible working arrangements were agreed which accommodated the Complainant in commuting from his home in Northern Ireland and met the operational needs of the Respondent. It was initially intended that the appointment would be of short term duration. However, the workload of the laboratory did not abate and the Complainant remained in employment. It appears that the arrangements between the parties were informal and the Complaint was not furnished with a written contract of employment.

The normal retirement age applied by the Respondent is 65. However, because of the temporary and informal nature of the Complainant’s employment no retirement age was specified in his case. He turned 65 on 21^stApril 2005.

In 2005 Ms Madigan joined the Respondent as Human Resources Manager. Ms Madigan was concerned at the fact that some employees, including the Complainant, were not covered by formal contracts of employment. There were two employees, including the Complainant, who were then over age 65. Ms Madigan set out to regularise that situation and to that end, in September in 2006, she arranged to meet with the Complainant.

The meeting was attended by the Complainant, Ms Madigan and Mr Magee. It appears that here was some discussion between the Complainant and Mr Magee before this meeting although there is a difference in recollection between them as to the import of their discussions. The Complainant’s recollection is that Mr Magee told him that the question of retirement would be raised and that“he should not say 70”.Mr Magee does not recall saying anything to that effect.

All parties are agreed that at the meeting the Complainant was asked how long he intended to remain working. All parties are also agreed that the Complainant told Ms Madigan that if he could remain in employment until his 67^thBirthday he would be happy to retire. The meeting appears to have been entirely amicable and ended on the basis that the Complainant would be issued with formal contracts up to his 67^thbirthday at which point he would retire. Unfortunately a minute of the meeting was not created nor was its outcome reduced to writing and confirmed to the Complainant. Nonetheless, there is no serious dispute between the Complainant and the witnesses who testified on behalf of the Respondent as to the outcome of the meeting.

Arrangements were made with the Respondent’s pensions department to compute the Complainant’s retirements entitlements. The Complainant had discussions with the pensions department in that regard and the form of retirement benefit that he would receive was agreed.

Before the Complainant’s expected retirement date the Respondent became aware that another cytologist would be taking maternity leave in or around that time. The Complainant was offered and accepted a renewed fixed-term contract to cover that period.

In or about November 2007 the Complainant sought unpaid leave in order to care for his wife who was ill. A meeting with Ms Madigan was held to discuss his application. Mr Magee was unavailable and Ms Turner, who was then deputy chief medical scientist, attended. It was agreed that the Complainant would be granted the leave that he required. According to the Complainant, at the close of this meeting Ms Madigan told him that his then current contract would not be renewed on its expiry in February 2008. According to both Ms Madigan and Ms Turner the Complainant was told that his employment could continue up to 18^thFebruary and he could then retire. The Court believes that this later account is more probable. In any event it is clear that the Complainant did not demur or raise any objection to his proposed retirement at that stage.

On the termination of the Complainant’s employment a retirement party in his honour was hosted by the Respondent. The Complainant submitted a list of guests that he wished to have invited. At the party the Complainant made a gracious speech in which he thanked the Respondent and his colleagues for his experiences while working in the hospital. The Complainant subsequently sent a cared to Ms Madigan in which he expressed his gratitude for the party and for the kindness shown to him on his retirement.

By letter dated 16^thApril 2008 the Complainant wrote to Ms Madigan asking if he was entitlement to a redundancy payment. Ms Madigan replied that as he was not made redundant no such entitlement arose.

With regard to employment of two younger medical scientists, the evidence disclosed that two trainee scientists were employed by the Respondent as part of a training programme run in conjunction with a third level educational institution. Two permanent posts were subsequently created and advertised internally. The Complainant did not apply for either post and the two trainees were subsequently appointed to these posts. The Court is satisfied that the Complainant was aware of these vacancies and that he did not express an interest in applying for them. The Court is further satisfied that the Respondent did not consider appointing the Complainant to one of these posts because they were permanent and all such posts must be advertised. Moreover, at that time the Respondent believed that the Complainant wished to retire.

Conclusion
Having evaluated all of the evidence adduced in the course of the hearing the Court is satisfied that in September 2006 the Complainant agreed to retire on reaching his 67^thbirthday. His tenure in employment was subsequently extended by agreement beyond that date so as to provide cover for a colleague who was absent on maternity leave. There was nothing in the circumstances surrounding the extension of the Complainant’s employment to suggest that either party considered this extension as having the effect of offsetting his earlier agreement to retire. The Complainant accepted in evidence that he had agreed to retire and this agreement subsisted up to the date on which his employment came to an end. The Complainant also fairly accepted in his evidence to the Court that it was only after his actual retirement that he formed the opinion that the Respondent was not lawfully entitled to ask him to nominate a retirement date. The Court is satisfied that the Complainant was mistaken in his understanding of the law in that regard.

Section 34(4) of the Act provides: -

• “(4) Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees.”

It is clear from the evidence that the Respondent did not impose a retirement date on the Complainant. He freely agreed to retire and at no stage prior to his actual retirement did he seek to resile from that agreement. There is no doubt that the Respondent wished to regularise the Complainant’s employment and in that regard wished to know how long he was likely to remain in employment. But the Court cannot speculate as to what the Respondent’s reaction might have been had the Complainant declined to nominate a retirement date or if he had subsequently withdrawn his consent to retire.

In these circumstances the Court has come to the conclusion that the Complainant’s employment came to an end by agreement and not by dismissal. Consequently his claim of discrimination arising from the termination of his employment cannot succeed.

Determination
For all of the reasons set out herein the Court is satisfied that the Respondent did not discriminate against the Complainant by terminating his employment on grounds of his age. The appeal is allowed and the decision of the Equality Tribunal is set aside.



Signed on behalf of the Labour Court



Kevin Duffy
11th March 2013______________________
AHChairman



NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.