EQUALITY OFFICER'S DECISION NO: DEC-EE/ 2014/076
PARTIES
Mr. Richard Lett
(Represented by John A. Sinnott & Co Solicitors)
Vs
Earagail Eisc Teoranta
(Represented by O’Donnell McKenna Solicitors)
FILE NO: EE/2011/704
DATE OF ISSUE: 6th of November, 2014
1. Dispute
This dispute involves a claim by Mr. Richard Lett that he was discriminated against by Earagail Eisc Teoranta on the grounds of age, in terms of section 6 (2) and contrary to section 8 of the Employment Equality Acts, 1998 and 2008 in relation to his dismissal and in relation to his conditions of employment, by being forced to retire at age 66 and by being forced to work part time prior to that retirement.
2. Background
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on 7th of October, 2011.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 3rd of February, 2014 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 9th of May 2014.
3. Summary of complainant’s case
3.1 It is submitted that the complainant commenced his employment with Lett & Co. in 1975. He worked for the company for a number of years before becoming a Director along with his two brothers. In 1988/89 Lett & Co. purchased the majority shareholding in Earagail Eisc Teoranta and the complainant was a director of this company up 1996 when he relinquished his directorship to make way for a new board member /shareholder to facilitate future investment in the company. On 18th of May 1998 he became an employee of Earagail Eisc Teoranta (EET) as part of the Lett Group/Lett & Co. Ltd.
3.2 In April 2007 the complainant received some paperwork from EET confirming that his employment was continuing. The first document confirmed that his employment would continue for 2 years up to end of March 2009. At the end of March 2010 the complainant received a document purporting to relate back to March 2009 and suggesting that his employment would terminate in September 2011 on his 66th birthday.
3.3 On 21st of February, 2011 the Managing Director of EET wrote to the complainant and informed him that as part of the company’s efforts to restructure they had identified his position as one that may be superfluous to ongoing requirements and that a determination would be made in relation to the viability and requirement for the position in the next week or two.
3.4 The letter of the 21st of February 2011 also informed the complainant that irrespective of the redundancy situation there was no current requirement for his position to be carried out on a full-time basis and from 28th of February, 2011 he would be on a 3 day week and that this would continue up to 7th of September, 2011 the date of his alleged retirement.
3.5 It is submitted that in order to keep continuity in the flow of product to the company, the complainant, with the company’s knowledge had to be on call 7 days a week 24 hours a day in order to liaise with trawler men and sellers of product which is not caught or landed on a “normal house” basis.
3.6 It is submitted that the letter of the 21st of February, 2011 was the first time the complainant had been notified of any alleged retirement age. The complainant submits that another employee, Mr. C had worked with the company up to the age of 70.
3.7 The complainant submits that he was dismissed due to his age.
3.8 The complainant submits that putting him on a 3 day week for 28 weeks prior to his “alleged” retirement age amounts to discriminatory treatment on the grounds of age. It is submitted that this was also an attempt to deny him the protection he would have had under the Unfair Dismissals Act or under the Redundancy Payments Act
3.9 The respondent submits that Mr. G and Mr. J in June 2007 received statutory redundancy packages in the sums of €60,000 and €30,000 respectively
3.10 Should the Tribunal determine that there does exist a mandatory retirement age in the workplace then there is a requirement on the respondent to show that such a retirement is objectively justified on reasonable grounds.
4. Summary of respondent’s case
4.1 It is submitted that the respondent company was taken over by Navid Limited on 12th of April, 2007. It is submitted that prior to this the respondent company was owned and controlled by the Lett Group Limited which was owned and controlled by the complainant and his family.
4.2 It is submitted that the complainant and his brothers James and Desmond controlled the respondent company for 18 years between 1989 and 2007.
4.3 It is submitted that the complainant is an experienced businessman with multiple directorships and business interests and had been in control of the respondent organisation prior to the Navid takeover.
4.4 It is submitted that the complainant was a de-facto director of the respondent company under Section 27 of the Companies Acts 1990 and was invited to all Board Meetings of the company. He and his family members controlled the respondent company.
4.5 The complainant had jointly and severally guaranteed the respondent’s bank borrowings in the amount of €1,387,000. These guarantees were released when Navid took over.
4.6 It is submitted that prior to this the complainant was not an employee of the company but that he did become one on 12th of April, 2007 when the Navid takeover was complete.
4.7 It was envisaged by the new owners that all involvement by the Lett family would cease and severance packages were agreed to facilitate the exit of the two younger members of the Lett family.
4.8 The complainant wanted a job and it was agreed between the parties that the complainant would be offered a two year fixed term contract of employment. It was decided to facilitate the complainant due to his long involvement with the company and his relationship with suppliers.
4.9 A fixed term contract was agreed with the complainant and was renewed until it eventually became a contract of indefinite duration.
4.10 Because the complainant’s employment had become a contract of indefinite duration it would not terminate on its own terms. While the set retirement age in the respondent company is 65, the managing director wrote to the complainant informing him that his employment could continue until his 66th birthday. One reason for this was to keep the complainant employed until the age at which he would qualify for old age pension.
4.11 The respondent organisation had undertaken a root and branch review of its operations and was considering whether the complainant’s job was viable going forward. A decision was made to reduce the complainant’s role to a three day a week role. If work had been available for the complainant he would have been given that work but the respondent could only provide work on a three day a week basis. This was more than adequate in the economic climate which prevailed. It is accepted that the complainant would take occasional calls out of normal hours it is a gross exaggeration to suggest that he was on call 24 hours a day 7 days a week.
5. Findings and Conclusions of the Equality Officer
5.1 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of age, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008, in relation to his dismissal by being forced to retire (at age 66) and in relation to his conditions of employment by being forced to work part time prior to that retirement. 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 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: “places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.
5.3 Section 6(1) of the Employment Equality Acts, 1998 to 2008 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) … “
5.4 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]
5.5 Employee status
5.5.1 There was much discussion at the hearing on the issue of whether the complainant was an employee of the respondent organisation or not. The complainant had submitted that he was employed by the respondent since 1975. The respondent submitted that the complainant was a director of the company and was not an employee prior to his signing a contract of employment on 30th of March, 2007. The respondent states that prior to this no ‘master servant relationship’ existed between the complainant and the respondent, as the complainant was a director and in control of the respondent organisation prior to this. The complainant submits that certain actions taken by the respondent were to prevent him from claiming under the Redundancy Payments Act or under the Unfair Dismissals Act. The respondent states that the complainant would not have been entitled to claim redundancy as he had not accumulated enough stamps. It is not for me to decide on matters relating to the Redundancy Payments Act or the Unfair Dismissals Act, I will thus limit my investigation to matters relating to the Employment Equality Acts. Both parties agreed that the complainant was an employee of the respondent retained under a contract of employment dated 30 March, 2007. This contract purported to cover a 2 year fixed term and was later extended. It was submitted by the respondent that this developed into a contract of indefinite duration. The complainant continued to work for the respondent until September 2011 when he was forced to retire upon reaching his 66th birthday. I am thus satisfied from the totality of the evidence adduced that the complainant was an employee of the respondent from 30th of March, 2007.
5.6 Retirement due to age
5.6.1 The complainant has submitted that he was not aware that the respondent had a compulsory retirement age of 65 and advised the hearing that the first he heard of it was when he was issued with a letter in February 2011 stating that his hours were being cut in advance of his retirement which was due to take place on his 66th birthday.
5.6.2 The respondent at the hearing stated that the complainant was well aware of the company retirement age as it was referred to in the Company Handbook a copy of which all employees had received as part of their contract. It emerged at the hearing that the complainant had not received a copy of the Company Handbook with his contract as his contract was issued on 30th of March 2007 a number of days prior to the new owners taking over the company.
5.6.3 The respondent submitted that the complainant was well aware of the retirement age as he was a director of the company at the time when the Company Handbook was drawn up in 2006. The complainant stated that he was not a director of the company at that time but that members of his family had been directors of the company. A lot of discussion took place around whether or not the complainant was a de-facto director of the company due to his controlling interest in another company which was a majority shareholder of the respondent organisation prior to the takeover. It was submitted by the respondent that the complainant had been a shadow director of the respondent organisation prior to the takeover and that as such he was entitled to attend all Board meetings.
5.6.4 The respondent submitted that the Company Handbook had been developed prior to the Navid takeover and that it had been approved by the Board prior to being circulated to staff members. The complainant stated that he had not seen the Company Handbook or the provision in relation to a mandatory retirement age of 65 either prior to or after the Navid takeover.
5.6.5 Mr. J and Mr G who had been directors of the respondent company prior to the takeover gave evidence that they as directors were not aware of the compulsory retirement age of 65 as this had been introduced at the time the company was being taken over. It emerged at the hearing that the reference to the retirement age was contained in the Company Handbook. It also emerged that an external consultant Mr. K had been brought in to restructure the company and its HR practices and had developed the Company Handbook around June 2006. It emerged that this Handbook had been passed by the Board of Directors albeit without any specific discussion in relation to the matters contained therein. Board Members and members of the complainant’s family Mr. G and Mr. J gave evidence that they were unaware that the Handbook contained a provision in relation to retirement age of 65. When questioned at the hearing as to how a Handbook containing a reference to a retirement age of 65 which had never previously existed had been passed by the Board a reply was given that staff were more concerned at the time with bigger issues such as annualised hours. The Handbook was also introduced at a time of great uncertainty when the company was in difficulty and therefore staff had other bigger issues to worry about.
5.6.6 Initially the respondent had stated that it had not provided the complainant with the Company Handbook as part of his contract as his contract was a specific fixed term contract. It emerged at the hearing that the complainant had in fact entered into his contract days before the Navid takeover and so it had been the responsibility of the previous owners to provide him with a copy of the Handbook. The previous owners were the complainant’s family who at the hearing denied any knowledge of the requirement to retire at 65 as contained in the Handbook. It emerged at the hearing that Mr. J and Mr. G were both present at Board meetings where it is alleged that the Handbook was passed by the Board but minutes of the meetings are so vague that it is not possible to say whether the contents of the Company Handbook was in fact discussed. In any event Mr. G and Mr. J as directors and Board members of the respondent organisation prior to the Navid takeover had hired Mr. K to restructure its HR processes and would have been aware that a Staff Handbook had been produced. It would also have been within their power to be aware of the reference to the retirement age of 65 which was contained in that Handbook. It emerged at the hearing that the complainant did have an entitlement to attend Board meetings of the respondent organisation prior to the takeover by Navid but that in general he did not attend these meetings due to the fact that his job as a fish buyer was mainly conducted off site and necessitated a lot of travelling.
5.6.7 It emerged at the hearing that the respondents having taken over the respondent organisation had been given a copy of the Company Handbook and that it formed part of all contracts issued after that date but that it is clear that a copy of same was not provided by them to the complainant due to the fact that his was initially a fixed term contract and one which issued days before the takeover.
5.6.8 It was also submitted that the complainant should have been aware through custom and practice that 65 was the retirement age. It emerged at the hearing that the company Handbook was only developed in June 2006 and that prior to this no uniform or structured HR practices existed in the organisation. The complainant cited Mr. C as an individual who had worked until he was 70. The respondent in reply to this claim stated that there were no rules or practices in place prior to its taking over the respondent organisation. The respondent did however name Mr. O as an individual who had been forced to leave upon reaching the age of 66 by Mr. J the complainant’s brother in 2001. Witnesses for the complainant gave evidence that Mr. O had been forced to leave due to economic factors which had eroded his role within the organisation. Mr. O had worked as a fish buyer in Ireland and had attended auctions in Ireland on behalf of the company at a time when a lot of fish were being bought and sold at auction here. Witnesses for the complainant gave evidence that factors such as EU Laws and regulations in relation to changes in fish quotas resulted in a decrease in auctions and in product being sold at auction. They advised the hearing that changes in work practices and the introduction of new methods for transporting fish causing them to be piped into trucks directly for transports to their destination reduced the need for Mr. O to attend auctions on the pier. The complainant also gave evidence that this role had been affected by a huge drop in the numbers of fish coming into harbours and cited as an example that Roe Herring had dropped from a hundred thousand tonnes in 1996 to ten thousand tonnes in 2006. The complainant stated that Mr. O’s role was eroded to the point where it was no longer viable and stated that this would have been the case irrespective of his age. Mr. J advised the hearing that a suitable package was agreed with Mr. O to facilitate his exit. I am satisfied from the totality of the evidence adduced that Mr. O’s role was eroded due to prevailing economic conditions and that his leaving was unrelated to his age.
5.6.9 The respondent also submitted that the complainant, as one of the trustees of the company pension scheme, would have been well aware of the retirement age. A copy of the pension scheme was presented to the hearing. The details of the scheme indicate that it can be drawn anytime from age 60 to 75. The respondent also produced another document which identified all members of the scheme by their salary, ages and intended retirement date to the Trustees.
5.6.10 It has been submitted by the respondent that the complainant was forced to retire due to the company’s mandatory retirement age of 65. It emerged at the hearing that the complainant was not in fact forced to retire on reaching the age of 65 but on his 66th birthday. The respondent at the hearing stated that the reason he was kept on until his 66th birthday was due to legal advice it had received which stated that technically the complainant could claim that even though the retirement age was stated as 65 he would be 65 until his 66th birthday. Thus technically he would still be 65 when he was 65 plus 364 days. The respondent stated that it thus decided to keep him on until his 66th birthday.
5.6.11 I am thus satisfied form the totality of the evidence adduced in relation to this matter that the complainant did not receive a copy of the Company Handbook as part of his contract and thus may not have been aware of the clause contained therein which states that 65 is the mandatory retirement ages for employees. In any event the respondent has submitted that the complainant was forced to retire by reason of his having reached a particular age which according to the respondent is deemed to be the retirement age for its employees. The complainant refused to retire upon reaching this age and was then compulsorily retired when he reached the age of 66. I am thus satisfied from the totality of the evidence adduced here that the complainant has established a prima facie case of discrimination on the grounds of age which the respondent must now rebut.
5.7 Objective justification of Mandatory Retirement Age
5.7.1 Section 34(4) of the Acts states:
Without prejudice to subsection (3) it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntary or compulsory) of employees or any class or description of employees.
However, it has been the practice of the Equality Tribunal to interpret Section 34 (4) in a harmonious way with Article 6 (1) of the Equal Treatment Directive:
Notwithstanding Article 2(2), Member States may provide
those 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.[2]
Authority for this is Donnellan v The Minister for Justice, Equality and Law Reform where McKechnie, J. states:
Any discrimination with regards to age must, as put by that Directive, serve a legitimate aim or purpose, and the means taken to achieve that purpose must be appropriate and should go no further than is necessary, i.e. they should be proportionate.[3]
5.7.2 This has been followed by the Tribunal in Saunders v CHC[4], Paul Doyle v ESB International[5], Rosanna Nolan v Quality Hotel[6] O’Neill v Fairview Motors[7]Patrick Dunican and Thomas Spain v Offaly Civil Defence[8] McPhillips v ISS Facility Services[9] and John Roche v Complete Bar Solutions[10].
5.7.3 Therefore, I am satisfied that the complainant has established a prima facie case of discriminatory dismissal and the respondent (even as a private actor) must provide me with objective justification.
5.7.4 The respondent has submitted the following reasons for imposing a mandatory retirement age of 65, which it states are objectively justifiable on reasonable grounds. These are
-Workforce planning
-Ensuring a high quality of service or ensuring continued competence
-Having an age balanced workforce and intergenerational fairness or sharing job opportunities amongst the generations
-Avoiding disputes with older employees about their fitness to work
-Contributing to a pleasant workplace and protecting the dignity of older workforce by not requiring them to undergo performance management procedures
-Ensuring that the company is perceived as fair and decent by retaining employees in so far as it is possible until they can avail of statutory and private pension arrangements thereby ensuring any drop in living standards is minimized
5.7.5 The respondent at the hearing indicated that the objective justification had already been provided in the submission and did not elaborate on the reasons given. Witness for the respondent, Mr. O’D added that the treatment of the complainant was fair as no employee had worked past the age of 65 +364 days since the takeover in 2007. The respondent declined to elaborate on the reasons given for objective justification stating that they were provided in the submission. Mr. O’D advised the hearing that the company had in deciding on the mandatory retirement age of 65, relied on the expert advice of Mr. K who had been brought in to restructure the company and who had developed the Company Handbook in 2006. In examining the reasons given I note that two of the reasons advanced by the respondent are Workforce planning and Having an age balanced workforce and intergenerational fairness or sharing job opportunities amongst the generations. While such reasons have in the past been accepted, in principle, as amounting to objective justification. However, in the instant case I note the respondent's evidence that the complainant was never replaced. In the present case it is clear that the complainant’s job was not used as an internal promotion opportunity for junior staff but was instead advertised externally. I also note that the respondent advised the hearing that the post had not yet been filled therefore I cannot but wonder as to why there was a necessity for the complainant to retire at 65 if the job was not given to anyone else. The respondent provided no evidence to support the claim that this aim is necessary and gave no evidence that the respondent could lose valuable staff if there were no promotional opportunities provided.
5.7.6 In addition the respondent has cited Avoiding disputes with older employees about their fitness to work . The respondent at the hearing did not raise any issue in respect of the complainant’s ability to perform the job and did not relate ability to perform the job with any attributes or characteristics which would require the incumbent to be 65 or under. The complainant advised the hearing that he could continue to work as a ‘fish buyer’ until he was 70 or more. The reasons advanced by the respondent appear to be more general reasons and are not in any way specific to the staff of the respondent organisation. The respondent appears to have taken a ‘one size fits all’ approach to the setting of a retirement age of 65. In addition, and for the avoidance of doubt, I am not saying that the respondent is not entitled to set a mandatory retirement age but that this requirement should be capable of being justified on objective and reasonable grounds.
5.7.7 In conclusion, I find that the respondent has failed to show that its decision to apply the retirement age it did is objectively justified in terms of section 34(4) of the Employment Equality Acts when construed in light of Article 6(1) Directive 2000/78/EC. I feel it necessary to state that some of the explanations advanced by the respondent in terms of the operation of a compulsory retirement age have been previously accepted by the Tribunal as elements of a defence of objective justification. However, in the instant case I find as a matter of fact that such justification was not made out by the respondent. Consequently, the complainant is entitled to succeed in this element of his complaint. Accordingly I am satisfied that the complainant was discriminated against by the respondent on grounds of age in respect of his dismissal.
5.8 Conditions of Employment and Age
5.8.1 The complainant has submitted that his role as a ‘Fish Procurement Consultant’ which involved sourcing UK supplies of shellfish and liaising with UK suppliers and travelling to key ports on a regular basis, was reduced from a full-time post to a three day a week position by the respondent and that this was due to his age. The complainant advised the hearing that he was advised of this reduction in his position by letter dated 21st of February, 2011 which stated that the position was identified as one which may be superfluous to requirements but stated that irrespective of whether the position became redundant there was no requirement for the work to be carried out on a full time basis. It also stated that they were willing to offer the complainant employment on a 3 day week basis until his retirement on 7th of September 2011.
5.8.2 The respondent has submitted that the complainant’s role was reduced due to the fact that it was no longer viable as a full time position but that it had not decided to make it a redundant position. The respondent submitted that the role could be done in three days and stated that it did acknowledge that the complainant took calls outside of those three days but that did not justify retaining it as a full time role. The respondent also stated that the role has not been made redundant and that the position has since been advertised but not filled. The complainant submits that he continued to do the job on a full time basis despite the fact that he was only paid for a three day week. The complainant stated that it was not possible to confine such a role to a three day week role due to factors such as the unpredictability of fishing boats arriving in late and due to its reliance on the weather. The complainant also stated that he was on call 24 hours, seven days a week as he would often have to make a receive calls outside of working hours due to the nature of his role as a fish buyer. The respondent conceded that the complainant did have to take calls outside of working hours even while working full time in the position.
5.8.3 The respondent has stated that it became clear that the complainant’s job could be done on a three day a week basis and that it had decided this on foot of a restructuring of the company’s activities. The respondent produced no evidence of such restructuring or no evidence to support its claim that the job could be done on a three day a week basis. The respondent in advising the complainant that his role was being reduced to a three day week initially suggested that it was considering making the position redundant and seeking his views on this proposal. In addition the respondents letter stated that in any event they had come to the conclusion that the job could be done on a 3 day a week basis and offering the complainant such a position up to his retirement in September, 2011. The respondent in arriving at this conclusion did not engage in any consultations or discussions with the complainant which would appear to be necessary before arriving at the conclusion that his role could be carried out over a three day week. The complainant advised the hearing that following the termination of his employment his position was advertised by the respondent as a full time position. The respondent at the hearing conceded the position was advertised as a full time post but stated that it had not yet been filled.
I am satisfied from the totality of the evidence adduced her that the complainant has established a prima facie case of less favourable treatment on the grounds of age which the respondent has failed to rebut. Accordingly I am satisfied that the complainant was discriminated against on grounds of age by the respondent in relation to this matter.
5.9 Claim re Loss of earnings
5.9.1 The complainant submits that he continued to do the job on a full time basis despite the fact that he was only paid for a three day week. The respondent has given evidence that Navid Limited took over the company at a time when it was experiencing considerable financial difficulty. Mr. Y, witness for the respondent described it as a rescue situation and stated that the complainant and his brothers were liable to personal guarantees of €1,387,000 at the time when Navid took over. Mr. Y advised the hearing that the complainant and his brothers were released from these guarantees once the takeover took place. It has also emerged at the hearing that the complainant has held a number of directorships in circa 15 companies and had been a company director since establishing the Lett Group in 1975 with his brothers. The respondent has advised the hearing that its preference would have been for the complainant to leave the company at the time of the takeover as other members of his family had done, but stated that he had requested that he be kept on as a ‘fish buyer’ and that they felt they should give him a job due to the number of years he had worked in the industry and the numerous contacts he would have built up. The respondent stated that they had been doing the complainant a favour by keeping him on when they took over the company. The respondent also stated that the complainant was permitted to keep his company car when he left the job. The respondent advised the hearing that following the initial 2 year fixed term contract it had issued the complainant with a further contract which he had refused to sign. The complainant had replied to the respondent’s letter of 21st of February, 2011 and had referred to previous family “packages” if the company wished him to “go off into the sunset”. The respondent submitted that this indicated that the complainant was holding out for a suitable package. Mr. O’D advised the hearing that he had numerous discussions with the complainant to try and come up with a package which would suit him. Mr. O’D advised the hearing that the complainant had clearly wanted a package but had been seeking more than the respondent was willing to offer.
5.9.2 It is clear from the evidence adduced that while the complainant considered that his role required him to work full time there is no evidence that the respondent to whom he was now answerable had imposed any checks or targets on him in relation to ensuring that he carried out the role to a certain level or degree. There is also no evidence that the respondent would have imposed any sanction on him had he not carried out the role to the same level as he had previously done. This matter is further complicated by the fact that the complainant’s family had previously built up the respondent organisation and so it is understandable that the complainant may have wished to continue to carry out the role to the same level which he had done when his family had been involved and when it was incumbent on him to build up and maintain relationships within the industry. In addition the complainant maintained directorships in a number of other companies in the same industry. The complainant has submitted a claim for loss of earnings for the period during which he claims he continued to work full time despite being paid for a 3 day week. I find it implausible that an individual with the complainant’s extensive experience in business would work a 40 hour week while only being paid for a 3 day week. It is not incumbent on me to make a finding in respect of this aspect of the claim but I may take it into consideration when deciding on the quantum to be awarded.
7. DECISION OF THE EQUALITY OFFICER
7.1 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 complainant was discriminated against by the respondent on grounds of his age in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts in relation to his dismissal.
(ii) the complainant was discriminated against by the respondent on grounds of his age in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 and contrary to section 8 of those Acts in relation to his conditions of employment when he was reduced to a 3 day week from 28th of February 2011 onwards.
7.2 Section 82 of the Employment Equality Acts, 1998 to 2008 provides that I can make an order for the effects of the discrimination. In considering the redress in this case, I have to be aware that any award for compensation should be proportionate, effective and dissuasive. In making my award, I am mindful of the fact that the respondent, in this case, kept the complainant on in a job after they had taken over his family business in 2007, the complainant agreed the terms of this contract days before the respondents took over. The respondent then inherited a Company Handbook which imposed a mandatory retirement age of 65 on all staff including the complainant which it was then unable to objectively justify. The respondent also reduced the complainant’s hours to a 3 day week prior to his retirement. The complainant has submitted that he continued to do the job on a 5 day week basis despite only being paid for 3 days a week. However I find it implausible that an individual with the complainants experience would continue to work a five day week for the respondent company while only being paid for 3 of those days. I am also mindful of the fact that the complainant was permitted to keep his company car when he left the job.
7.3 Having taken the foregoing matters into consideration and having regard to the rate of remuneration which the complainant was in receipt of at the relevant time, I consider an award of compensation in the sum of €24,000 to be just and equitable.
7.4 Therefore, in accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I order that the respondent pay the complainant €24,000 in compensation for his discriminatory dismissal and for his treatment in respect of reducing his hours from a 5 day week to a three day week. This award is in compensation for the distress experienced by the complainant in relation to the above matters, and is not in the nature of pay, and therefore not subject to tax.
____________________
Orla Jones
Equality Officer
6th of November, 2014
'Footnotes'
[1] Labour Court Determination No. EDA0917
[2]COUNCIL DIRECTIVE 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation
[3] [2008] IECHC 467 Paragraph 126.
[4] DEC E2011-142
[5] DEC E2012-086
[6] DEC E2012-042
[7] DEC E2012- 093
[8] DEC E2013-027
[9] DEC E2013-042
[10]