DECISION NO: DEC-E/2013/127
PARTIES
A Worker
(Represented by SIPTU)
Vs
A Meat Processing Company
(Represented by IBEC)
FILE NO: EE/2011/349
Date of issue: 7th of October, 2013
1. Dispute
1.1 This dispute involves a claim by a worker that he was discriminated against by a respondent, on the grounds of age, in terms of section 6 (2) of the Employment and contrary to section 8 of the Employment Equality Acts, 1998 and 2008 in relation to his conditions of employment and in relation to his dismissal.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 to 2008, to the Equality Tribunal, on the 22nd of March, 2011 alleging that the respondent had discriminated against him, on grounds of age, when he was forced to retire from his job at age 67. In addition it is submitted that the complainant was not afforded the right to have his appeal heard in relation to this matter.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 the Director delegated this case on 24th of April, 2013 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 79(1) of the Acts and as part of my investigation I proceeded to a Hearing on the 15th of July, 2013.
3. Summary of complainant's case
3.1 The complainant submits that he was employed by the respondent from June 2000 to December 2010.
3.2 The complainant submits that he was forced to retire at 67 years of age and submits that there was no retirement age specified in his conditions of employment or in the Company Handbook and that he was never informed he would be required to retire on reaching a certain age.
3.3 The complainant submits that proper procedures were not applied and that he was denied an appeal hearing by the respondent.
4. Summary of respondent's case
4.1 The complainant worked for the respondent from June 2000 to December 2010 when his contract was terminated due to his having reached the compulsory retirement age of 66 years.
4.2 The respondent accepts that it terminated the complainant's employment on the basis of his age and refers to Section 34(4) of the Employment Equality Acts 1998 which permits an employer to fix a mandatory retirement age of any class or description of employee.
4.3 The matter of his retirement was raised with the complainant on a number of occasions in the 12 months preceding his retirement.
4.4 In the period preceding his retirement the company found it necessary to deploy additional resources to assist the complainant.
5. Conclusions of the Equality Officer
5.1 The issues for decision by me now are, whether or not the respondent discriminated against the complainant on grounds of age, in terms of section 6(2) of the Employment Equality Acts, 1998 and 2004 and contrary to section 8 of those Acts, in relation to in relation to his compulsory retirement and in relation to the respondents alleged failure to allow the complainant to have his appeal heard. 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 at the Hearing.
5.2 Section 6(1) of the Employment Equality Acts, 1998 and 2004 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....."
Section 6(2) (f) of the Acts defines the discriminatory ground of age as follows - "as between any two persons ..... that they are of different ages, but subject to Section (3) ... "
5.3 Thus the complainant must be the subject of less favourable treatment in comparison to another person on grounds of age. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:
Section 85A of the Act provided for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. While those facts will vary from case to and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.1
5.4 Retirement due to age
5.4.1 The complainant has submitted that he was not aware that the respondent had a compulsory retirement age of 66 and advised the hearing that the first he heard of it was when he was called off his line one day to meet with the HR Manager, Ms. H, who advised him that he had reached the retirement age and would be retiring at the end of the year. The complainant, at the hearing could not say on what date this meeting took place. The complainant stated that following this meeting, Ms H had sent for him on another occasion and had told him that he would soon be retiring. The complainant advised the hearing that he was in the next few months summoned to other meetings both with Ms. H and with the Abattoir Manager, Mr. M, who told the complainant that he would have to retire soon due to his age.
5.4.2 The respondent at the hearing stated that the complainant's upcoming retirement had been raised with him on a number of occasions from a period of approximately twelve months before the date of his retirement.
5.4.3 The respondent had submitted prior to the hearing that the complainant was forced to retire by reason of his having reached a particular age which according to the respondent was deemed to be the retirement age for its employees. However, at the hearing it emerged that there were issues with the complainant's performance which had led the respondent to conclude that the complainant was no longer capable of doing the job.
5.4.4 The respondent advised the hearing that the complainant had in the months preceding his retirement been unable to do the job. The respondent advised the hearing that the complainant, who was employed in its Abattoir, worked in a very physical and potentially dangerous environment in the meat plant where cattle were coming in and out and machinery and knives were constantly in use. The respondent advised the hearing that the Abbatoir can be particularly dangerous to an individual who cannot keep up with the pace. Witness for the respondent Mr. M went on to state that working in the Abattoir, there are a lot of safety considerations as all areas are fast moving and stated that all employees working there must be alert, attentive and physically able for the job. However, the respondent went on to state that the complainant was at the time of his retirement no longer able to do the job.
6 Ability to do the job
6.1 The respondent advised the hearing that the complainant had in the year leading up to his retirement been less able to do the job and had required assistance from another employee to help him to carry out his role. Witness for the respondent Mr. W advised the hearing that he had, during the year leading up to the complainant's retirement, been approached by the Abattoir shop steward, who had asked him to allocate someone to help the complainant as he was unable to keep up with the work. The complainant at the hearing acknowledged that this had occurred and that he had needed the assistance of another employee to do the job.
6.2 Witness for the respondent, Mr. M advised the hearing that he had offered the complainant alternative work in a less physically demanding role which would have involved the complainant checking numbers of livestock coming in, but, Mr. M added that the complainant had refused to change to this new role. The complainant at the hearing acknowledged that this was the case.
6.3 When questioned as to whether his issues with the complainant's performance had been raised with him, the respondent replied that it felt it would be easier on the complainant to allow him to retire with his dignity intact rather than putting him through being dismissed due to performance issues at this age of his life. Mr. W added that he considered this to be a kinder approach. The respondent added that for this reason the complainant was advised that he would be retiring due to his age but that it was clear to all concerned that he was no longer able to do the job.
7. Section 16
7.1 Section 16(1)(b) of the Employment Equality Acts provides an employer with a complete defence to a claim of discrimination if it can be shown that the employer formed a bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they have been employed.
Section 16 (1) provides:
16. -- (1) Nothing in this Act shall be construed as requiring any
person to recruit or promote an individual to a position, to retain an
individual in a position, or to provide training or experience to an
individual in relation to a position, if the individual --
(a) will not undertake (or, as the case may be, continue to
undertake) the duties attached to that position or will not
accept (or, as the case may be, continue to accept) the
conditions under which those duties are, or may be
required to be, performed, or
(b) is not (or, as the case may be, is no longer) fully competent
and available to undertake, and fully capable of undertaking,
the duties attached to that position, having regard
to the conditions under which those duties are, or may
be required to be, performed.
7.2 In the instant case it is worth noting that there is no question of disability but rather of capability to continue to do the job. We are dealing with an employee whose capability to continue to do the job, and whose ability to keep up with the pace of that job is being questioned and one who required the assistance of another staff member in order to do the job.
7.3 In the present case it is acknowledged that the complainant's safety was a concern due to the fact that he worked in a fast moving, physically demanding and dangerous environment with a lot of machinery and knives. It is agreed that the complainant was unable to keep up with the pace of the work and that an additional staff member had to be assigned to assist him in his work. Furthermore, the complainant at the hearing acknowledged that he would not currently be physically able to do the job which he had performed at that time. The complainant when questioned as to when he considered himself to have ceased to be physically able for the job replied "since 2011". The complainant retired in December 2010, and it would appear that he was by his own admission unable to do the job since 2011, thus providing further credibility to the respondent's claim that the complainant was no longer able for the job.
7.4 In the instant case, it has been accepted that the complainant required the assistance of another staff member to help him to keep up with the pace of the job. However, it is not reasonable to expect the respondent to employ two people to carry out the job of one person indefinitely as to do so would place a disproportionate burden on the respondent.
7.5 It is accepted by all parties that the respondent in this case made efforts to provide the complainant with a less physically demanding role and had offered the complainant an easier and less demanding role of counting the numbers of livestock, at various stages, however, it is also agreed that the complainant had refused the change and had declined this offer of an alternative role.
7.6 It is clear to me from the totality of the evidence adduced in relation to this matter that the complainant was dismissed in accordance with section 16 (1) of the Acts because he was no longer 'fully capable of undertaking the duties attached to that position'. Thus I find that the dismissal was not carried out in a discriminatory manner.
7.7 Accordingly I am satisfied from the totality of the evidence adduced, that the complainant was not discriminated against on the ground of age in respect of his dismissal.
8 Conditions of employment
8.1 The complainant has also submitted a claim that he was discriminated against on grounds of age in relation to his conditions of employment when he was not afforded the right to have his appeal heard and be represented by his union official. It was submitted by the complainant that he had written to the respondent on 17th of December, 2010, through his union, asking for the rationale behind the decision to retire the complainant and requesting that the respondent reverse this decision and engage in meaningful discussions. The respondent at the hearing stated that the matters raised were dealt with in its replying email of the 20th of December, 2010 which advised that it would be happy to discuss any issues arising and confirming the complainant's date of birth. The respondent considered that this addressed the matters raised. The complainant acknowledged that such an email was received. The complainant did not offer any further evidence in relation to this matter and did not offer any evidence that this matter had been pursued beyond this correspondence. Accordingly based on the totality of the evidence adduced in relation to this matter I find that the complainant was not discriminated against on the ground of age in relation to this matter.
9. DECISION OF THE EQUALITY OFFICER.
9.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998 - 2008 I issue the following decision. I find that
(i) the respondent did not dismiss the complainant in circumstances amounting to discrimination on grounds of age, in terms of section 6(2) of the Employment Equality Acts, 1998-2007 and contrary to section 8 of those Acts when it terminated his employment in December 2010
(ii) the respondent did not discriminate against the complainant on grounds of age, in terms of section 6(2) of the Employment Equality Acts, 1998-2007 and contrary to section 8 of those Acts in relation to his conditions of employment
________________
Orla Jones
Equality Officer
7th of October, 2013
Footnotes:
1 Labour Court Determination No. EDA0917