EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-120
PARTIES
Mary Power
-v-
South Dublin County Council
File reference: EE/2014/351
Date of issue: November 2015
HEADNOTES: Employment Equality Acts – Age – Mandatory retirement age – Re-instatement
1. Dispute:
1.1 This dispute concerns a claim by Ms Mary Power that she was discriminated against by South Dublin County Council on the grounds of age contrary to section 6 of the Employment Equality Acts in that she was dismissed from her employment as a school warden when she reached her 66th birthday.
1.2 The complainant referred a claim to the Director of the Equality Tribunal on the 27th June 2014 under the Employment Equality Acts. On the 15th September 2015, in accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Kevin Baneham, 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 Employment Equality Acts and as part of my investigation I proceeded to a hearing on the 21st September 2015 where the complainant attended and two members of the Human Resources Department attended for the respondent local authority.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2. Summary of the complainant's case:
2.1 The complainant has worked as a school warden for the respondent and its predecessor for a period of 23 years, commencing her employment in 1991. This was a part-time position during the school term and she generally worked for two hour per day. She was one of five school wardens assigned to a named primary school and she attended a particular road crossing. She said that she believed that the respondent local authority employs 90 or so school wardens.
2.2 In March 2014, the complainant said that she received correspondence from the respondent to say that her employment would end on the 19th June 2014, the eve of her 66th birthday. The letter refers to the Local Government (Superannuation) (Consolidation) Scheme, 1998 to 2012 and says that this justifies the complainant's retirement. On the 10th April 2014, the complainant wrote to the respondent to say that she wished to complete the school term, i.e. to work until the 27th June 2014 and also to continue working into the 2014/15 school year. She says that she is in good health and would like to continue working and to make an ongoing contribution to society.
2.3 Addressing the status of school wardens generally, the complainant said that as each school warden worked their own crossing, they were not a consolidated group and they had no real access to the respondent local authority. She outlined that, some years ago, she had signed a petition as part of a campaign to allow school wardens access the pension scheme. While they had been permitted to join the scheme from 2005 onwards, the complainant said that she had not been informed of this opportunity. Commenting on the documentation submitted by the respondent, the complainant said that the 1994 Agreement was an agreement between the respondent and unions and this came into effect from 1996. Clause 16 of the 1994 Productivity Agreement for General Workers provides that a compulsory retirement age will be introduced for new employees in line with the old age pension qualifying age. She outlined that school wardens had been categorised as general workers for pension purposes only.
2.4 In respect of the remedy she sought, the complainant said that she was seeking re-instatement to the role of school warden. She said that she did not want to take someone's job and this would not happen as she was aware of at least one ongoing vacancy that was being covered by the relief panel. Since she had referred this complaint, the complainant has been successful in obtaining a place on the respondent’s school warden relief panel and had been working off the panel since February 2015. She had also availed of the opportunity to apply for the post of school warden with the respondent local authority.
2.5 Addressing the losses she incurred having been dismissed on the grounds of her retirement, the complainant said that she was paid 20 euro less per week while working off the relief panel. She was also without work for 20 weeks before the relief panel was established. She had also lost her entitlement to holiday pay and to be paid for discretionary days off. She had lost her status as a permanent employee of the respondent local authority and had lost the crossing where she was well known.
2.6 In closing submissions, the complainant said that it cannot be legitimate for her to be dismissed on the grounds of age and later succeed in getting her old job back via a recruitment process. She said that she had no knowledge of the Retirement and Long Service Policy document submitted to the hearing by the respondent and that this policy was not contained in the staff handbook. Responding to the respondent's submissions regarding its need for workplace planning and staff renewal, the complainant outlined that 99% of school wardens were of older age and were women. Given the number of hours worked per day and the nature of the role itself, it was not an attractive role for younger people. It was a role where it was important for a school warden to be established and well known at their crossing.
3. Summary of the respondent’s case:
3.1 In submissions dated the 26th March 2015, the respondent outlines that it has a compulsory retirement age of 66 for all general services staff that were employed after 1979 and before the 1st April 2004. This stems from the 1994 Productivity Agreement for General Workers. This is given as the grounds for the retirement of the complainant and it is also noted that she has been working as a Relief School Warden since the 4th February 2015. In supplementary written submissions presented at the hearing, the respondent refers to the its Retirement and Long Service Policy, which provides that general services staff employed before the 1st April 2004 and who are not new entrants to the public sector have a minimum retirement age of 60 and a maximum retirement age of 66. The respondent refers to two recommendations of the Labour Court (Irish Helicopters Ltd v. IALPA (LCR10960) and Film House v. A Worker (LCR15750)) as justification for the respondent’s need to ensure the renewal of its workforce. It further refers to the decision of the High Court in Donnellan v. Minister for Justice, Equality and Law Reform and others [2008] IEHC 467 as authority for the right of the respondent to manage its staff. On the basis of section 34(4) of the Employment Equality Acts and the Equality Tribunal decision in McCarthy v. Calor Teoranta (DEC2007-050), the respondent submits that it did not discriminate against the complainant.
3.2 At the outset of the hearing, the respondent local authority acknowledged that it had not adequately explained to the complainant the rationale for her retirement. It was relying on the Retirement and Long Service Policy, dated June 2010 and handed in at the hearing. This policy was available on the respondent intranet and had not been previously circulated to school wardens. The respondent said that it was not now relying on the Local Government Superannuation Scheme or the 1994 Agreement as they did apply to the complainant's case (as her employment pre-dated the Agreement).
3.3 The respondent outlined that personnel in the local authority fell into one of three categories; school wardens were classified as “General Services staff”. The Retirement and Long Service Policy provided for a mandatory retirement age of 66, on the grounds of workplace planning and to ensure the orderly renewal of staff. The mandatory retirement age allowed the respondent to future plan the recruitment of staff, in particular to facilitate the establishment of panels to fill posts. It also allowed the respondent to address a common issue faced by local authorities where the moratorium on recruitment had caused the average age of staff to rise, leading to a pressing need for staff renewal.
3.4 In respect of the categorisation of school wardens as general services staff, the respondent said that it was not possible to make exceptions for particular groups of employees. This category was made up of labour intensive roles that required younger and fitter staff. Since the enactment of the 2004 Act, retired members of staff could re-apply for posts. The respondent said that the complainant had been successful with her application in a 2014 competition for a post as school warden and had been placed first on the new panel.
4. Findings and reasoning:
4.1 What is striking in this case is that the reasons given by the respondent to justify the dismissal of the complainant changed wholesale on the occasion of the hearing of this complaint. In correspondence preceding the complainant’s retirement and which followed her later representations, the respondent sought to rely on the 1994 Productivity Agreement. Despite the complainant pointing out that her employment predated the Agreement, the respondent maintained its position. At the hearing, the respondent submitted that it relied on an entirely separate document, theRetirement and Long Service Policy, a document that the complainant had never seen and was never brought to her attention. While I appreciate the bona fides of the representatives of the respondent who attended the hearing, it is far from best practice for an employer to provide wholesale differing grounds in this way to justify the retirement or dismissal of an employee.
4.2 The complainant has an established track record as a school warden, having worked in this role since 1991. Since her employment ceased in June 2014, she obtained relief school warden work from February 2015 and, as she learnt during the course of the hearing, she is placed first on the panel for a new permanent school warden role. Given that the complainant was dismissed because of her age and the unclear reasons given to justify this dismissal, she has met the prima facie case of discrimination required under the burden of proof provisions of the Employment Equality Acts. It falls to the respondent to rebut the inference of discrimination. In this case, the respondent seeks to rely on section 34(4) of the Employment Equality Acts.
4.3 Section 34(4) of the Employment Equality Acts provides that “it shall not constitute discrimination on the age ground to fix different ages for the retirement (either voluntarily or compulsorily) of employees or any class or description of employees.” The first question to determine is whether the retirement age for school wardens has been fixed. The 1994 Productivity Agreement only says that a retirement age will be applied to new employees and because the complainant was not then a new employee, she is not covered by this provision. The 2010 Retirement and Long Service Policy differentiates between categories of staff and when they commenced employment in the public sector. It differentiates between clerical/administrative, professional/technical and general services. It is not stated in which category school wardens fall under, although the evidence of the respondent is that they are treated as general services staff. For staff that commenced employment prior to the 1st April 2004, the Policy provides a maximum retirement age of 65 for staff in the clerical/administrative and professional/technical categories and 66 for general services staff. There is no maximum retirement age for staff that commenced employment in the public sector after the 1st April 2004. In this case, it is not disputed that the complainant was not aware of the 2010 Retirement and Long Service Policy and it was not initially given to her as the grounds to justify her dismissal. No evidence was given for any other basis to read in an implied term into the complainant’s contract of employment for a retirement age of 65 or 66. In these circumstances, it is open for me to find that no retirement age has been fixed for school wardens of the respondent local authority.
4.4 Given that the 2010 Retirement and Long Service Policy exists, and was belatedly submitted to this hearing, it is necessary to consider the issue of whether the mandatory retirement age as provided in the policy is objectively justified. As a first point, it is the established jurisprudence of the Equality Tribunal that section 34(4) should be read in line or harmoniously with Article 6(1) of the Equal Treatment Directive, see O’Mahony v. Southwest Doctors on Call Ltd (DEC-E2014-031), Doyle v. ESB International Ltd (DEC-E2012-086) and Saunders v. CHC Ireland Ltd (DEC-E2011-142). Article 6(1) of the Council Directive for Equal Treatment in Employment and Education (2000/78/EC) provides “[N]otwithstanding 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.” It is for the employer to show that the mandatory retirement age is objectively and reasonably justified by a legitimate aim and that the means used to achieve this aim are appropriate and necessary.
4.5 In submissions, the respondent local authority outlined that a mandatory retirement age was necessary for workforce planning and the need to renew staff. Specific justification was offered for general services staff as such roles are more labour intensive and operate in the field. The question is whether justification should be assessed against the general services category as a whole or school wardens as a particular group. In considering this question, a first point to note is that the respondent operates a mandatory retirement age only for staff that began employment in the public sector prior to the 1st April 2004 (section 3 of the Public Service Superannuation (Miscellaneous Provisions) Act, 2004 provides that new entrants shall not be obliged to retire due to age unless provided for in the Act.) A second point is that the respondent operates different retirement ages, depending on the nature of the role. Thirdly, the respondent uses panels to fill posts as they become vacant and creates stand-alone school warden panels. Fourthly, the respondent submits that school wardens are part of the general services category of its employees, without this categorisation being formalised or reduced to writing. Fifthly, school wardens are employed only in that capacity and have contracts of employment for this specific role and not a wider general services role. Taking these factors together, it is for the respondent to show that the mandatory retirement age of 66 for school wardens is objectively and reasonably justified for that specific role. While the respondent may be able to show that the age is justified for other staff (for example, those who work for long hours in a physically enduring role), it must show, in this case, that the age is justified for school wardens.
4.6 In assessing whether the mandatory retirement age of 66 is justified for school wardens, it is noted that school wardens work for a few hours each school day. They attend a specific crossing and are on their feet and exposed to the elements for this part of the day. They have legal powers to stop traffic to ensure the safe passage of children. It was common case that the 90 or so school wardens employed by the respondent are of an older age profile and that many are women. It would seem that the age profile of this category of worker is due to nature of the role, as opposed to the more general (and current) problem where the public sector moratorium has caused the age profile of local authority staff to rise. I, therefore, find that there is not the same need to ensure staff renewal among school wardens as may arise for other categories of local authority worker. Staff renewal, therefore, cannot be used to justify a mandatory retirement age for school wardens. I also find that the use of panels addresses the need for the respondent to provide for workforce planning, and the inclusion of a mandatory age goes beyond what is necessary to achieve this aim. No issues were raised regarding health and safety or other concerns about older workers continuing in the role without a specified retirement age. On this basis, I find that the mandatory retirement age of 66 for school wardens cannot be justified.
4.7 It follows that the retirement of the complainant amounts to a discriminatory dismissal. In respect of redress, I note that the complainant has worked in the relief school warden role since the February 2015, albeit at financial loss to her. She applied for the role of a permanent school warden and learnt at the hearing that she was placed first on the panel following a recruitment competition. She will presumably be offered a role in the near future (and this may have already occurred). In assessing redress, I also note that the complainant challenged the basis for her retirement in correspondence, and her arguments were only belatedly accepted by the respondent.
4.8 Taking these factors together, I believe that an order should provide for the re-instatement of the complainant as well as an award of compensation. Even if the complainant immediately commenced employment following the recent competition, she is entitled to have the period of her employment dating back to 1991 recognised. Re-instatement also entitles her to recover for the financial losses she directly incurred as a result of the dismissal, e.g. any reduced pay or lesser entitlements while working off the relief panel or when she was without work. An order for re-instatement restores her to the position she was in prior to the discriminatory act of dismissal. There is, of course, no issue in this case regarding her standing or conduct. In assessing the level of compensation, I take account of the complainant’s repeated and articulate efforts to challenge the basis of her retirement, and the less than satisfactory response of the local authority. I also take account of the ongoing relationship between the parties. On the basis of these factors, I make an award of compensation of €6,000.
5. Decision
5.1 I have investigated the above complaint and make the following decision in accordance with section 79 of the Employment Equality Acts and section 41 (5)(a)(iii) of the Workplace Relations Act 2015 that the complainant was subject to a discriminatory dismissal on the grounds of her age.
5.2 Pursuant to section 82(1)(f) of the Employment Equality Acts, the respondent is ordered to re-instate the complainant to her employment as a school warden, with an order for compensation for €6,000.
____________________
Kevin Baneham
Adjudication Officer/Equality Officer
November 2015