EQUALITY OFFICER'S DECISION NO: DEC-E/ 2016-061
PARTIES
Ms. Birute Gutaskiene
(Represented by Grogan & Associates Solicitors)
Vs
ALPS Electric Ireland Limited
(Represented by O’Flynn Exhams Solicitors)
FILE NO: ET-154446-ee-15
DATE OF ISSUE: 4th of April , 2016
1. Dispute
This dispute involves a claim by Ms. Birute Gutaskiene that she was discriminated against by ALPS Electric (Ireland) Limited on the grounds of age, in terms of section 6 (2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2015 by being forced to retire at age 65.
2. Background
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2015 to the Equality Tribunal on the 18th of March, 2015.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated the case on 11th of February, 2016 to me, Orla Jones Adjudication/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 12th of February, 2016.
2.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
3. Summary of complainant’s case
3.1 It is submitted that
the complainant, who is a Lithuanian National, commenced her employment with the respondent on the 25th of August 2000 but due to work permit restrictions did not sign a full time contract until the 26th of June 2005,
the complainant was employed as a production operator and reached the age of 65 on the 24th of October 2014,
the complainant’s contract of employment states that ‘Normal retirement age is 65 years’,
the complainant on 17th of September 2014 requested that her retirement date be moved to the 25th of October 2015 (i.e. her 66th birthday),
the respondent advised the complainant that her retirement date would not be extended and that she would retire on her 65th birthday, on the 24th of October 2014,
the complainant is in good health and was in a position to continue to do her work and requiring her to retire upon reaching the age of 65 amounts to discrimination on grounds of age
4. Summary of respondent’s case
4.1 It is submitted that
the respondent has set a retirement age of 65 which is objectively justifiable
the complainant commenced her employment with the respondent on the 25th of August 2000 but due to work permit restrictions did not sign a full time contract until the 26th of June 2005,
The complainant ceased work with the respondent on 25th of October 2014 upon reaching the age of 65
the complainant was employed as a production operator and her contract included a term which stated that ‘Normal retirement age is 65 years’,
this clause was also contained in the respondent’s People Management Policy
the complainant was informed well in advance of her retirement date
5 Pre-liminary Issue – Race Ground
5.1 The complainant’s representative at the hearing raised the issue that the complainant was not aware of the compulsory retirement age of 65 despite the fact that it was specifically stated in her contract of employment. It was submitted at the hearing that the complainant did not understand the meaning of the retirement age clause due to the fact that she is Lithuanian and it is submitted that she does not speak or understand English. The complainant’s representative in advancing this is raising an issue that the complainant was disadvantaged in this regard due to her nationality. In raising this the complainant is seeking to advance a claim on the ground of race.
5.2 It was submitted at the hearing that the complainant did not understand any English though it emerged at the hearing that she had obtained certificates for successfully completing two English courses, she also advised the hearing that she could not read or understand written English but that she could understand numbers in English. The respondent advised the hearing that the complainant had completed a number of training courses during her 14 years in their employment including a number of manual handling courses and a chemical handling course all of which involved written exams upon completion and all of which the complainant had completed successfully. The respondent advised the hearing that this is the first time an issue has been raised in respect of the complainant being allegedly unaware of the company retirement age due to an inability to understand written or spoken English.
5.3 The complaint form submitted to the Tribunal on 18th of March, 2015 indicates that the claim is being taken on the ground of age and does not indicate that any claim is being made on the race ground. The complainant’s submission which issued to the Tribunal on the 12th of May, 2015 also indicates that the claim is being taken on the ground of age and again makes no reference to the race ground. The respondent at the hearing stated that the issue of a claim on the grounds of the complainant’s race had not been raised prior to the hearing in any of the correspondence or documentation submitted by the complainant. It is clear from the initial complaint form that the complainant was represented at the time of lodging the complaint and I can see no reason why the issue of race should not have been included in the initial complaint if the complainant was seeking to make a claim on that ground. I am satisfied that the complainant was in receipt of legal advice at the time of submitting her complaint and no reasons have been provided to justify the introduction of a new ground on the day of the hearing.
5.4 In considering the introduction of a new ground to the claim I am also guided by the High Court judgment in the case of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan[2009] IEHC 370 . In that case McGovern J. held that while it was permissible to amend a claim set out in form EE.1 this was only permissible where ‘the general nature of the complaint (in this case discrimination on grounds of sexual orientation) remains the same.’ I note that McGovern, J. also stated in this decision that this can only be done so long as the general nature of the complaint remains the same. He went on to say that "what is in issue here is the furnishing of further and better particulars" and "the respondent....must be given a reasonable opportunity to deal with these complaints and the fair procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice.".
5.5 In the present case this new ground of race which the complainant sought to introduce at the hearing had not been referred to in any way in advance of the hearing. I am thus satisfied that the respondent was not on notice of any claim on the ground of race. In addition, and for the avoidance of doubt, I am also satisfied that any such claim on a new ground which relates to the complainant’s retirement date of 25th of October 2014 would at this stage be out of time in accordance with the time limits provided for in Section 77(5) of the Acts.
5.6 I am satisfied given all of the circumstances of the present case, that the introduction of a new claim under a new ground of race fundamentally alters the nature of the claim before the hearing. Therefore, I am of the view that it would be contrary to fair procedures and natural justice for me to consider it. Accordingly I am satisfied that I do not have jurisdiction to permit the introduction of a new claim seeking to rely on the ground of race.
6. Findings and Conclusions of the Equality Officer
6.1 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 2015, in relation to her being forced to retire at age 65. 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.
6.2 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”.
6.3 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) … “
6.4 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]
6.5 Objective justification of Mandatory Retirement Age
6.5.1 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]
6.5.2 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].
6.6 Retirement due to age
6.6.1 The complainant has submitted that she was forced to retire upon reaching the age of 65, she has also submitted that she was not aware that the respondent had a compulsory retirement age of 65. The complainant advised the hearing that she became aware of the company retirement age of 65 about a year before she was due to retire when she was called to a meeting and told that everyone who would be 65 that year would have to retire. The complainant advised the hearing that she had not been told prior to this meeting that she would have to retire at age 65. The respondent stated that the meeting in question to place in February, 2014.
6.6.2 The respondent submits that it has set a mandatory retirement age of 65 which is objectively justifiable to ensure motivation, dynamism and retention among staff as well as to avoid capability issues that may arise with age and to ensure a balanced age structure within the business. The respondent advised the hearing that the complainant was well aware of the company retirement age as it was specifically stated in her contract which was signed by the complainant on 27th of June, 2005 and that it is also clearly stated in the respondent’s People Management Policy. The complainant agreed that she had signed the contract containing the retirement clause in June 2005. The complainant at the hearing had sought to advance a claim on the grounds of race claiming that she had not been aware that the retirement age was 65 on the basis that she was Lithuanian and did not speak or understand English. As indicated at paragraphs 5.5 & 5.6 above I have indicated that I am not permitting the introduction of a new claim on the ground of race however and for the avoidance of doubt I should clarify that this matter was raised at the hearing where the complainant had initially stated she did not understand any English despite having obtained two certificates in English courses, she later advised the hearing that she could not read or understand written English but that she could understand numbers in English. The respondent advised the hearing that the complainant had completed a number of training courses including manual handling courses and a chemical handling course all of which involved written exams upon completion and which the complainant had completed successfully. The respondent advised the hearing that letters had also issued to the complainant in advance of her retirement in January 2014 and again in June 2014 reminding her that her retirement date was to fall on the 25th of October 2014, on her 65th birthday.
6.6.3 The respondent advised the hearing that the complainant had at the meeting of February 2014 asked if she could work on past the age of 65 and if she could instead retire a year later on 25th of October 2015. The respondent stated that the complainant was advised, in response to this request, that she could not work past the retirement age of 65 and that this was the retirement age for all of its staff. The complainant had initially submitted that she was not aware of the company retirement age of 65 but did at the hearing concede that she was aware of the retirement age but that she had always planned not to retire at that age but to work on past that age.
6.6.4 The respondent also advised the hearing that the complainant was a member of its company Pension Scheme from which a lump sum pension is issued to members on reaching the company retirement age of 65. The respondent stated that members of this scheme, including the complainant, are issued with yearly benefit statements which indicate the value of the pension and the estimated benefit to accrue to the member on the date of their retirement and in the complainants case her retirement date was specified as the 25th of October 2015, at which date she would be 65 years of age. The respondent produced documentary evidence at the hearing indicating that the complainant had been a member of this Pension Scheme and stating that she had received a pension of €26,000 upon reaching the company retirement age of 65.
6.6.5 The complainant advised the hearing that another member of staff Mr. A who was older than her had continued to work past the age of 65 years of age. The respondent advised the hearing that Mr. A was not older than the complainant and had not worked past the age of 65. The respondent advised the hearing that there was however one member of staff Mr. B for whom an exception had been made. The respondent advised the hearing that Mr. B had requested to be allowed work on past the age of 65 on the basis that he had undergone a full medical which deemed him to be physically and medically fit to continue in his job. The respondent stated that an exception had been made for Mr. B who had following this medical been allowed to continue in employment for a number of months after reaching the age of 65.
6.6.6 The respondent advised the hearing that the complainant could not be considered in the same circumstances as Mr. B. The respondent advised the hearing that the complainant had worked for them for 14 years but that she had in the last few years prior to her retirement incurred many long periods of absence from work. The respondent submitted documentary evidence that the complainant was absent from work for 145 days in the 22 month period from January 2013 to October 2014 of which 112 days related to certified sick leave. The respondent stated that a number of these absences had, by the complainant, been attributed to ill health. It also emerged at the hearing that the complainant had following a period of illness, had to reduce her working week to a 3 day week instead of a 5 day week. The respondent also advised the hearing that following a period of ill health by the complainant, they had to create a special job for the complainant where she could work on her own and without contact with anyone else. The respondent advised the hearing that her absences were not the reason for her retirement but that it was clear to the respondent that an application by the complainant to continue on past the age of 65 on the basis that she was medically fit and healthy to do so could not be considered given her absence history. The respondent also stated that it was clear from this that the complainant’s capability and ability to attend work had declined as she approached the retirement age of 65.
6.6.7 The respondent stated that the complaint had not shown that she was fit and able to continue working unlike Mr. B. It was submitted on behalf of the complainant that she had following a period of absence from work through illness been examined by the Occupational Health Specialist Ms. W on 31st of March 2014 who had certified her as being fit to return to full time work. Prior to this she had reduced her working week to a 3 day week. It was submitted that this was an indication that the complainant was fit to continue working past the retirement age of 65 years. It emerged at the hearing that the complainant had seen Dr. W for a total of about three minutes in order to obtain certification of fitness to return to work. The letter from Dr. W indicated that she had at first suggested that the complainant should return to work on a 4 day week for 3 months for health reasons but that the complainant was adamant that she wanted to return to 5 days a week following which Dr. W had stated that she could ‘have a go’ at the 5 days and that she could be reviewed at any stage ‘given her past history’.
6.6.8 The respondent advised the hearing that it had at the time of Mr. B’s approaching retirement age given consideration to his application to continue working due to the fact that he had undergone a full medical and was deemed fit to continue on working past the age of 65 however, given that the complainant had incurred such long and frequent periods of absence from work due to ill health in the years leading up to her retirement the respondent did not see fit to consider her application to work on past the age of 65.
6.6.9 It has been submitted that the complainant was forced to retire due to the company’s mandatory retirement age of 65. I am satisfied from the totality of the evidence adduced that the complainant was forced to retire upon reaching the age of 65 and that her retirement was due to her reaching a certain age. I am also satisfied that the complainant has on the face of it raised an inference of discrimination on the grounds of age and that it is for the respondent to rebut that inference of discrimination.
6.6.10 The respondent submits that it has set a retirement age which is objectively justifiable to ensure motivation, dynamism and retention among staff as well as to avoid capability issues that arise and to ensure a balanced age structure within the business. The respondent states that this is a legitimate aim which is appropriate and necessary. The respondent at the hearing submitted that the complainant worked as a Production Operator and that the work of the respondent entails the semi automatic and hand assembly of electronic components.
6.6.11 The respondent advised the hearing that it is part of a Japanese Company and that the retirement age of its mother company is set at 60. The respondent submits the policy applied in Ireland is vastly more favourable than that applied to their counterparts in Japan in that the retirement age is set at higher age in Ireland and is set at age 65. The respondent advised the hearing that the reason for setting a retirement age of 65 is twofold, firstly that the capability of people in the production area which involves the hand assembly of electronic components declines with age, and secondly to encourage development within the company and to allow others to advance to supervisory positions. The respondent also stated that the company operates a pension scheme for employees which matures at the retirement age of 65 upon at which time a lump sum is payable to the beneficiaries including the complainant who received €26,000 upon reaching the age of 65. The respondent produced documentary evidence at the hearing indicating that the complainant had been a member of this Pension Scheme and stating that she had received a pension of €26,000 upon reaching the company retirement age of 65. The respondent submitted that employees are encouraged to discuss their retirement as early as possible to assist the respondent with workforce planning. The respondent also stated that it provides pre-retirement courses for employees in advance of their retirement date and that the complainant was provided with details of such courses in July 2012.
6.6.12 The respondent has submitted that it has set a mandatory retirement age of 65 for all of its employees in Ireland and that all employees do retire at age 65 but cited that there was one example of an employee who worked on past that age having been deemed physically and mentally fit to do so. It has also been submitted that Mr. B was an exception and that the complainant has not provided any reasons as to why she should be considered in the same circumstances a s Mr. B given that she had numerous and lengthy absence periods in the two years leading up to her retirement which were attributed to her ill health.
6.6.13 I am satisfied from the totality of the evidence adduced that the respondent’s policy of applying a mandatory retirement age of 65 satisfies a legitimate aim and that the means it has put in place to achieve that aim are both appropriate and necessary.
6.6.14 In conclusion, I find that the respondent has shown that its decision to apply the retirement age it did is objectively justified. Consequently, the complainant is not entitled to succeed in her complaint. Accordingly I am satisfied that the complainant was not discriminated against by the respondent on grounds of age in respect of her dismissal.
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 not discriminated against by the respondent on grounds of her 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 her dismissal upon reaching the company retirement age of 65.
___________________
Orla Jones
Adjudicator/Equality Officer
4th of April, 2016
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]
Ms. Birute Gutaskiene
-v-
ALPS Electric Ireland Limited