DEC-E2015-114

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2015-114

PARTIES

Michael McGrath and John Ryan

AND

Athlone Institute of Technology

(Represented by Arthur Cox Solicitors)

File reference: EE/2013/117 & 118

Date of issue: 30 October 2015

1. Claim

1.1. The case concerns claims by Michael McGrath and John Ryan that Athlone Institute of Technology discriminated against them on the ground of age contrary to Section 6(2)(f) of the Employment Equality Acts 1998 to 2011(hereinafter the Acts), in terms of

1. Retraining was offered to their younger colleagues

2. Grade progression

3. Reassignment was offered to their younger colleagues, whereas they were redeployed

1.2. They also claimed they suffered victimisation within the meaning of Section 74 (2) of the Acts.

1.3. The complainants referred two separate complaints under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on the 5th March 2013. A submission was received from the complainants in May 2013. A submission was received from the respondent on the 8th April 2015.

1.4. On the 10 July 2015, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Marguerite Buckley, as 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 this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the cases on the 10th July 2015.

2. Preliminary application

2.1 At the outset of the hearing of the complaints, the Respondent requested me to make a preliminary decision, that the Tribunal had no jurisdiction to hear the claims following the signing of a settlement agreement dated 19th January 2012 by the Complainants that was binding. I reserved my decision on the application on the grounds that I needed further information on the cases to make such a decision and that I wished to hear all evidence before considering the application. On that basis, the hearing proceeded.

3. Complainants case

3.1 The Complainants were engaged as assistant lecturers by the Respondent in 2005 pursuant to series of specific purpose contracts. The trades courses on which the Complainants were teaching were discontinued due to the prevailing economic conditions. The Respondent sought to terminate the Complainants specific purpose contracts by reason of redundancy. The Complainants commenced claims in 2010 (along with other members of staff) under the Protection of Employees (Fixed-Term Work) Act 2003 before the Labour Relations Commission. Their claims were rejected by a Rights Commissioner. The Complainants received their P45 on the 21st June 2011 and applied to the High Court for an interlocutory injunction seeking to restrain the termination of their employment while they appealed the decision of the Rights Commissioner to the Labour Court. That application was refused. The Labour Court awarded the Complainants’ contracts of indefinite duration. That outcome was appealed by the Respondent on a point of law to the High Court. There was also a Judicial Review brought and an appeal to the Supreme Court.

3.2 In all when the settlement agreement was entered into by the parties, there were four different proceedings before the High Court and one in the Supreme Court. The proceedings were described by Counsel for the Respondent as “extensive, fractious and difficult”.

3.3 For the above proceedings, the Complainants were legally represented by a firm of Solicitors, Junior Counsel and Senior Counsel. For this claim before the Equality Tribunal the Complainants represented themselves.

3.4 The above claims at paragraph 3.2 were compromised by the parties on the 19th January 2012 and a settlement agreement was executed by the parties (hereafter referred to as “the agreement”). The agreement was executed by the Complainants and witnessed by their solicitor. It was executed on behalf of the Respondent by the HR manager.

3.5 The terms of the settlement provided at Clause 1 that AIT would issue contracts of indefinite duration to five named individuals (who included the Complainants). Clause 2 set out that the Plaintiffs listed in the settlement (including the Complainants) accepted that they constituted a properly identified group of surplus staff who were liable to be redeployed. Clause 3 referred to working conditions following the redeployment. Clause 4 referred to putting in place a Director of Redeployment by the Department of Education and Skills to act on an ad hoc basis as exists under the redeployment scheme for post-primary teachers. Clause 5 set out what was to happen during the period while redeployment opportunities were being sought. Clause 6 referred to the High Court appeal being withdrawn. Clause 7 referred to a contribution the Employer was to make towards the legal costs of the Complainants and one other co-plaintiff and the terms of same. Clause 8 referred to and listed the six different sets of proceedings pending at the time in the High Court/ Supreme Court and the striking out of same.

3.6 Clause 9 of the agreement was

“Mr. McGrath and Mr. Ryan may prosecute claims pursuant to the Industrial Relations Acts in respect of grade progression and while they must institute such claims prior to their redeployment the bringing of such claims shall not interfere or delay such redeployment.”

3.7 Clause 10 related to confidentiality. Clause 11 was deleted by agreement. Clause 12 related to payment of fees for academic courses.

3.8 Clause 13 stated

“The foregoing constitutes full and final settlement between the employees named at 1 above the Employer of all claims of whatsoever nature and disputes arising from the cessation of the trades’ courses and their resulting redeployment”.

3.9 The Complainants applied to the Respondent for grade progression from Assistant Lecturer to Lecturer.

3.10 Their applications were refused on the basis that the information submitted did not meet the requirements to progress.

3.11 The Complainants brought claims under the Industrial Relations legislation under reference r – 121880 – ir- 12 and r – 121892 – ir – 12 and the cases were heard on the 2nd June 2012. The Rights Commissioner recommended that the Complainants be afforded the right to review the decision made by the Respondent in accordance with the terms of Section 3.7 Circular IT 03/05.

3.12 The review took place in September 2012.

3.13 The Complainants submitted documents showing that on the 12th October 2012 they wrote to the Equality officer HR Department of the Respondent alleging that they were “singled out, bullied, discriminated, victimised and excluded” by named employees of the Respondent and sought “an internal, full open and transparent inquiry thought the grievance complaints procedures mechanism”. This letter was replied to by the Respondent on the 16th October 2012 and referred the Complainants to the terms of the agreement dated 19th January 2012 and that the application for grade progression which was ongoing under a separate process.

3.14 The Complainants further wrote to the Respondent on the 30th October 2012 and confirmed that they had “no intention of breaking the High Court agreement” and were “fully compliant and aware of the terms of settlement”. The letter went on to refer to “ageism since the 19th January last “.

3.15 The Complainants further wrote to the Respondent on the 29th January 2013 alleging “appalling exclusion, ageism, victimisation, bullying and discrimination inflicted on us by management ….since the 20th January 2012”. They set out that they intended to “exercise their constitutional rights and seek a form that would allow them to be treated equally by management with their other colleagues”.

3.16 There were numerous emails and letters between the parties during this period.

3.17 The Complainants were ultimately awarded progression from assistant lecturer to lecturer and were placed on point 1 of the lecturer scale.

3.18 By an email dated 4th February 2013, the Complainants queried their placement on point 1 of the scale and compared themselves with named co-workers who were placed on point 2 of the scale. They set out that these colleagues were 20 years younger than them and “can only see it as another example of ageism and discrimination on the part of the management”.

3.19 The Respondent replied setting out information regarding increment dates and how they are calculated. The complainants were subsequently both placed on point 3 of the lecturer scale and received retrospective payment for the weeks they were on the incorrect scale.

3.20 The Complainants were redeployed to Kildare Wicklow Education and Training Board and Laois Offaly Education and Training Board. The Complainants work as Resource Persons for Youth Reach. The Complainants advise that they now work in positions which are 7 grades below their positions as Lecturers.

3.21 The Complainants pay terms have not changed due to their redeployment.

3.22 By Complaint form received by Workplace Relations Customer Service on the 5th March 2013, the Complainants claimed the most recent date of discrimination was given as the 4th March 2013.

3.23. At the hearing, evidence was given by the Complainants and their witnesses. JOC, their union representative, gave evidence that there was no effort to redeploy the Complainants and that none of his representations to keep the Complainants in employment in the Institute were entertained. He referred to the Complainants as the “the elder statesmen” of the staff affected with “the others 10 – 20 years younger” than them. He produced a document prepared by himself and dated 5th September 2013 which contained a number of comments that he had heard pertaining to the Complainants.

3.24 Under cross-examination by Counsel for the Respondent JOC was requested to give evidence as to the allegations being made that the Complainants were not reassigned internally by reason of their age. In response the witness produced an email dated 10th June 2014 from the HR director containing the suggestion that the ‘Complainants should look at retirement opportunities or even the voluntary redundancy package that is available’.

3.25 The Complainants referred to this email as proof that the actions of the Respondent were solely based on ageism and was victimisation. They alleged that HR had not asked ‘younger men’ to accept retirement. They felt that they had a lot to offer the Institute.

3.26 The witnesses gave evidence as to colleagues who were retrained and their ages and colleagues who were reassigned within the college as opposed to being redeployed and their ages.

3.27 The adverse treatment that the Complainants claim are

3.27.1 Retraining was offered to their younger colleagues

3.27.2 Reassignment was offered to their younger colleagues whereas they were redeployed

3.27.3 They were put on the wrong pay scale following grade progression

3.27.4 They were isolated, bullied and harassed.

3.28 The Complainants confirmed in evidence that they signed the agreement dated 19th January 2012 having had the benefit of legal advice. They did not accept that by signing the agreement they had waived future claims they could bring in relation to their employment and they openly asked if “they had signed away their lives away” by signing the agreement.

3.29 The Complainants set out that a number of the terms of the contract they claimed were not complied with namely

3.29.1 Michael McGrath has been redeployed in excess of 50km from his home or AIT

3.29.2 A director of redeployment was not put in place by the Department of Education

4. Respondents case

4.1 The Respondent did not call any witnesses. Counsel’s submissions relied on the agreement and that the claims before the Tribunal arose from the redeployment of the Complainants and was as such covered by the agreement. The Respondent’s case was that the Complainants had no right to bring their claims.

4.2 The text of the agreement was prepared by Counsel for both parties on the 19th January 2012 before the hearing date of one of the High Court cases. The parties met in the Round Hall at the Four Courts.

4.3 The agreement referred to the six different sets of proceedings pending at the time in the High Court (five of which were in relation to the Complainants). The agreement was a typed document with three handwritten insertions / clarifications.

4.4 The Respondent relied on Clause 13 of the agreement namely

“The foregoing constitutes full and final settlement between the employees named at 1 above the Employer of all claims of whatsoever nature and disputes arising from the cessation of the Trade courses and their resulting redeployment”.

4.5 The Respondent described the litigation between the parties leading up to the signing of the agreement as ‘fractious and difficult’. The language of the agreement was carefully negotiated. The Respondent did not believe that the failure to list the various Acts of employment legislation in the agreement as fatal.

4.6 The Respondent set out that the agreement compromised the entitlement of the Complainants to bring any future claim, if it arose out of the cessation of the trades’ courses or the redeployment of the Complainants. The wording of clause 13 referred to “all claims of whatsoever nature and disputes arising”.

4.7 The redeployment of the Complainants was through the Department of Education Scheme. The Respondent had no control over where the Complainants were redeployed to. The Complainants were given an opportunity to appeal their redeployment.

4.8 It is a matter of public policy that parties should be encouraged to settle extensive proceedings and the Courts will uphold such compromises unless it can be shown that the agreement was somehow reached by unlawful means.

4.9 The Respondent relied on the cases of Suffin –v- Tesco Ireland Limited (TEC – E2015 -006) and Sunday Newspapers Limited –v- Kinsella and Bradley [2008] ELR 53.

4.10 The Respondent set out that there was no evidence that the Complainants were treated differently because of their age. All of the comparators named as being treated differently than the Complainants had academic degrees that allowed them to be considered to teach other courses. These considerations were not available to the Complainants as they did not have the requisite qualifications. One of the comparators DH had started his training course before the agreement was made on the 19th January 2012.

4.11 An email of the 10th June 2014 from the HR manager had no bearing on the case as he was entitled to form the view that the Complainants were uncooperative. That view was not evidence of ageism.

4.12 The Complainants had merely made assertions but did not provide primary facts from which the presumption of discrimination on the ground of age could be drawn.

Decision on Preliminary Application

5.1 The agreement entered into between the Complainants and Respondent is a detailed document specific to the cases involved. It refers in clause 5 to “retraining opportunities as AIT may offer without obligation to do so“and in clause 13 to the words “all claims of whatsoever nature and disputes arising from the cessation of the trades’ courses and their resulting redeployment”.

5.2 The only proceedings that were envisaged that could be brought when the agreement was signed on the 19th January 2012 were those carved out of the agreement by clause 9 in respect of grade progression under the Industrial Relations Acts.

5.3 It is clear from the documents lodged with the Complainants submissions that the relationship between the parties was intractable both before and after the agreement was signed. There was obvious hostility from both sides to the other. By October 2012 the Complainants were writing to the Respondents alleging they were “singled out, bullied, discriminated, victimised and excluded”. In response, the Respondent referred to the terms of the agreement.

5.4 However the Complainants did exhaust all remedies available to them in relation to their grade progression claims and were ultimately successful.

5.5 I find that the Complainants were treated generally as was set out in the agreement. The two clauses that were not followed were not due to the actions of the Respondent. I have no jurisdiction in terms of breach of contract of the agreement.

5.6 I am bound by the decision of Mr. Justice Smyth in Sunday Newspapers Limited –v- Kinsella and Bradley [2008] ELR 53. The question of “whether or not rights have been compromised is a matter for the property construction of the agreement itself”. The agreement is stated to be in full and final settlement of certain matters. The agreement was entered into after a long series of claims/proceedings during which the Complainants were advised by Junior and Senior Counsel. The wording of the agreement was negotiated by the parties and their legal teams and was specific to the facts of this case. A standard type precedent form was not used.

5.7 Based on the foregoing, I find that the Complainants are bound by the agreement and are estopped by the terms of the agreement from bringing their claims in respect of

1. Retraining offered to their younger colleagues

2. Reassignment offered to their younger colleagues whereas they were redeployed

5.8 In relation to the grade progression claim, I find that this was not excluded by the agreement but there was no evidence that any alleged treatment of the Complainants by the Respondent was due to their age.

5.9 In relation to the claim of victimisation, I do not accept that any claim of victimisation was covered by the agreement dated 19th January 2012.

5.10 Victimisation is defined in Section74 (2) of the Employment Equality Acts as occurring 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 any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

5.11 The definition of “proceedings” as set out in s.2 of the Employment Equality Acts is “proceedings before the person, body or court dealing with a request or reference under this Act by or on behalf of a person …” and includes appeals arising from these proceedings.

5.12 The reference to “under this Act” is under the Employment Equality Act.

5.13 The Complainants in their written submission titled “Chronology of Events in My Employment” refer to “exclusion is being meted out to me because I have successfully fought my dismissal in the courts”. The Complainants brought their claim to the Labour Court under the Protection of Employees (Fixed-Term Work) Act 2003.

5.14 The key elements of victimisation provided for in s.74 (2) of the Employment Equality Acts are:

· The employee had taken action of a type referred to at s.74(2) of the Acts (a protected act),

· The employee was subjected to adverse treatment by the respondent, and

· The adverse treatment was in reaction to the protected action having been taken by the employee.

Department of Defence v Barrett EDA1019.

5.15 The adverse treatment that the Complainants claim are

5.15.1 Retraining was offered to their younger colleagues

5.15.2Reassignment was offered to their younger colleagues whereas they were redeployed

5.15.3 They were put on the wrong pay scale following grade progression

5.15.4 They were isolated, bullied and harassed.

5.16 s.74(2) is expressed in terms of there being both a cause and an effect in the sense that there must be a detrimental effect on the employee which is caused by him or her having undertaken a protected act of a type referred to in s.74. Department of Foreign Affairs v Cullen EDA116.

5.17. I have considered the evidence provided by the Claimants in relation to their allegations of victimisation. I find

5.17.1 The first allegation of ageism was made on the 30th October 2012.

5.17.2 Before that allegation, on the 19th January 2012, the agreement had expressly set out that there was no obligation on the Respondent to provide training to the Claimants.

5.17.3 Before the allegation, they were in a process of redeployment.

5.17.4 The placement on the pay scale and amendment was linked to the claimants start dates in 2005 and increments due.

5.17.5 I was not presented with any evidence of isolation, bullying or harassment of the Complainants by the Respondent due to the making of their claim of ageism.

5.18 Therefore I find there is no evidence that arising from the protected act, the Claimants suffered adverse treatment or victimisation.

______________________

Marguerite Buckley

Equality Officer

October 2015