The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2013-048
PARTIES
Tony (Peter) Kerrigan
(Represented by Maeve Brennan B.L. instructed by Claudine Hanratty Solicitors)
AND
Molloy Engineering
File reference: EE/2010/681
Date of issue: 23 May 2013
HEADNOTES: Employment Equality Acts - Sections 6 & 8 - Gender - Marital Status - Age - Conditions of Employment - Harassment - Victimisation - Section 101(4)(c)
1. DISPUTE
1.1 This dispute concerns a claim by Mr Tony (Peter) Kerrigan that he was discriminated against by Molloy Engineering on the grounds of gender, marital status and age contrary to section 6 of the Employment Equality Acts in relation to access to employment, promotion, training, conditions of employment and discriminatory dismissal in terms of sections 8 of the Acts, that he was harassed in accordance with section 14A of the Acts and that he was victimised and dismissed in a victimisatory manner in accordance with section 74 (2) of the Acts and that he performs "like work", in terms of section 7 of the Employment Equality Acts with two named comparators and is entitled to equal remuneration in accordance with section 29 of the Acts.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 10 September 2010 under the Employment Equality Acts. On 5 November 2012, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, 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 which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79 (1) of the Acts and as part of my investigation I proceeded to a hearing on 12 February 2013.
2. COMPLAINANTS' SUBMISSION
2.1 The complainant started working for the respondent on 19 August 1981 as an installation fitter & maintenance plumber. He states that he was never issued with a contract of employment and he never received a pay slip.
2.2 He submits that on 24 June 2010 Mr John Molloy Junior suggested that he should retire because of his heart problems and the complainant considers this to be harassment.
2.3 The harassment continued when, at a meeting on 30 June 2010, the complainant was issued with a letter which stated that he had to retire on his 65th birthday. He was given no notice and he did not agree to have his employment terminated. The letter referred to the company's policy and practice and to the complainant's Terms and Conditions of Employment. The complainant had never been given a copy of the policy's and practice and had never been requested to sign a contract of employment. He was offered €5,000 as an ex gratia retirement gift and asked to sign a discharge form but he refused to sign the form.
2.4 The complainant contends that two other employees, who are the named comparators in his claim of equal pay, worked for the respondent after they were 65. He contends he was treated differently than Ms A on the grounds of gender and family status, as she was married. He was also treated differently than Mr B as he was married. The complainant is a widower. The complainant contends he was not afforded the same working conditions or treatment in relation to dismissal as those given to Ms A and Mr B.
2.5 At a meeting on 9 July 2010 with Mr Molloy Junior it was suggested that he took July off and return on a 3 day week subject to a clear medical certificate.
3. RESPONDENT'S SUBMISSION
3.1 The respondent has nine employees: 6 in Dublin and 3 in Wexford (including 2 working Directors. The complainant did not have a written contract but he had an oral contract that he would retire at 65. He also signed up to a Pension scheme with effect from 20 July 1991. He signed pension documents which clearly stated a retirement age of 65.
3.2 The respondent submits that the complainant's retirement was the subject of regular and ongoing discussions over the years. Furthermore, pension contributions paid by the respondent were increased. From August 2009 onwards there were many informal discussions about the complainant undertaking part-time work post-retirement, which he was very keen to obtain The respondent was favourably disposed to the complainant working part-time, subject to him taking a clear break of a number of weeks and producing a medical certificate for fitness to work because of his previous heart attack. On 14 May 2010 the respondent had a meeting with the complainant in which he said he was told that there would be part-time work for him after retirement subject to him taking a break and providing a medical certificate. He was also told the pay would be comparable with what he was earning at that time.
3.3 The complainant raised no objection or query until 24 June 2010 when he told the respondent that he was not retiring, that he did not have to and he questioned the need for a medical certificate. The respondent could not agree to change longstanding arrangements and told the complainant that they could not agree with his position. The respondent reviewed their position and took legal advice. The respondent decided to continue with the existing arrangements that the complainant was to retire at 65. As part of the legal advice the complainant was asked to sign a 'Discharge Form' and was offered an ex gratia payment of €5,000.
3.4 At the meeting on 30 June 2010 the complainant was thanked for his services and asked to sign the Discharge Form which he refused. He was also asked to return company equipment which he did on 26 July 2010.
3.5 The complaint was offered part time work after he had retired, by letter on 30 August and 9 September 2010.
3.6 Ms A was born 31 July 1944 and was employed as a part-time book keeper. She started in December 2002 and with the respondent's agreement she had no fixed date for retirement as she wanted to work on after 65 to increase her state pension contributions. She was made redundant on 26 February 2010.
3.7 The respondent submits that Mr B was never an employee. He was a self-employed consulting engineer with a marketing function and worked between 8 and10 days per month. He finished his involvement with the respondent on 23 December 2004.
4. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The complainant has made claims in relation to relation to access to employment, promotion, training, conditions of employment, discriminatory dismissal, harassment, victimization, victimisatory dismissal and equal pay. Shortly before the hearing it came to my attention that the complainant had taken a claim under the Unfair Dismissals Acts, 1977 - 2001, that a hearing of that claim had taken place in the Employment Appeals Tribunal and they had issued a Determination. Section 101(4)(c) of the Employment Equality Acts states: "an employee who has been dismissed shall not be entitled to seek redress under this Part in respect of the dismissal if .... the Employment Appeals Tribunal has begun a hearing into the matter of the dismissal". In this claim the Employment Appeals Tribunal had not only begun a hearing into the complainant's dismissal but had also issued a Determination. I therefore have no jurisdiction in relation to the claims of discriminatory dismissal and victimisatory dismissal, and can consider no issues in relation to the complainant's dismissal. I do, however, have jurisdiction to investigate the claim in relation to access to employment, promotion, training, conditions of employment, harassment, victimization, and equal pay.
4.2 At the hearing the complainant withdrew his claim in relation to equal pay and presented no evidence in relation to access to employment, promotion and training. Therefore I have to decide if the respondent discriminated against the complainant in relation to conditions of employment, if he was harassed and if he was victimised on the grounds of gender, marital status and age. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.3 From the evidence given the complainant clearly had a good working relationship with the respondent, particularly with Mr Molloy Senior for nearly thirty years. Some of the arrangements between the parties may be described as 'informal' but there is no evidence of any discriminatory treatment in relation to the complainant's conditions of employment. The unfortunate breakdown in the good relationship between the parties concerned the complainant leaving the respondent's employment. As this is related to the complainant's dismissal I have no jurisdiction to consider these issues, as I have set out in paragraph 4.1 of this decision.
4.5 The complainant contends that certain parts of the discussions between him and the respondent about whether he was going to retire or carry on working amount to harassment. However, it is clear to me, from the direct evidence of the complainant and both Mr Molloy Senior and Mr Molloy Junior that these discussions were amicable and carried out in a perfectly reasonable manner until the complainant objected to his imminent retirement in June 2010. The discussions from 24 June 2010 onwards related to the complainant's dismissal and I have no jurisdiction to consider them, as I have set out in paragraph 4.1 of this decision.
4.6 The complainant contends he was victimised from May 2010 onwards, after he asserted his right to stay on after his 65th birthday. He asserts that he expected to carry on working but just change to working on a part-time basis. As the complainant put it himself he expected the change to be 'seamless'. The respondent confirmed they planned for the complainant to retire at 65, then after a break of a month to re-employ him on a part-time basis subject to him providing a medical certificate. Section 74 (2) of the Employment Equality Acts states: "For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to --
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant,
(c) an employee having represented or otherwise supported a complainant,
(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,
(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under such repealed enactment, or
(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs."
From the evidence given by both sides, both in the written submissions and in direct evidence at the hearing, I conclude that the complainant was not subject to any 'adverse treatment' in relation to his conditions of employment whilst working for the respondent. If there were any changes as to how the complainant was dealt with in relation to the manner in which he left the respondent's employment after he objected to being made to retire then this falls within the category of victimisatory dismissal and I have no jurisdiction to deal with it, as I have set out in paragraph 4.1 of this decision.
5. DECISION
I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts I find that:
- the complainant has not established a prima facie case of discriminatory treatment in relation to conditions of employment, harassment and victimisation,
- I have no jurisdiction to investigate the claims of discriminatory dismissal and victimisatory dismissal.
____________________
Hugh Lonsdale
Equality Officer
23 May 2013