DEC-E2016-106

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2016-106

PARTIES

Patrick McCourt (deceased)

(Represented byKiwanna Ennis, BL instructed by McGrath McGrane Solicitors)

Complainant

AND

Power City Ltd T/A Power City

(Represented by Michael Mulcahy, SC instructed by LawPlus Solicitors)

Respondent

File reference: EE/2014/300

Date of issue: 18th July 2016

1. Introduction:

1.1 On the 22nd May 2014, the complainant referred a complaint to the Equality Tribunal regarding discriminatory dismissal on grounds of age. Sadly, the complainant passed away on the 14th August 2014 and this complaint is advanced on the complainant’s behalf by his personal representative, his spouse, Marie McCourt. The complainant worked in a sales role and the respondent is a retailer of consumer electrical goods.

1.2 On the 17th November 2015, in accordance with powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission delegated the case to me, Kevin Baneham, an Adjudication Officer/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.

1.3 On the 21st November 2015, the complaint proceeded to hearing. The complainant’s spouse attended on her late husband’s behalf. Kiwanna Ennis, BL instructed by McGrath McGrane Solicitors represented the complainant. Michael Mulcahy, SC instructed by LawPlus Solicitors represented the respondent. A witness, the Operations Director, attended for the respondent.

1.4 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 submissions:

2.1 In the complaint form, the complainant outlines that he was discriminatorily dismissed on the grounds of age. He states that his terms and conditions do not specify a retirement age. In 2011, when he reached age 60, he had been forced to sign yearly fixed-term contracts. He was informed on the 3rd March 2014 that his contract would not be renewed and his employment came to an end on the 4th March 2014. He states that comparable employees were not put on fixed term contracts and nor were they so dismissed.

2.2 The complainant commenced employment with the respondent on the 1st December 2008 and he turned 60 on the 8th March 2011. In October 2011, the respondent wrote to the complainant to say that the respondent’s terms and conditions provide that it operates a retirement age of 60. It then offered the complainant a one-year contract, back-dated to his 60th birthday. Further year-long extensions were provided in correspondence of the 5th March 2012 and the 20th March 2013. The complainant passed away on the 14th August 2014.

2.3 At the adjudication, his spouse gave evidence. She outlined that the complainant had been surprised in October 2011 to have been moved onto a fixed-term contract. He did not have any choice but to accept this change as he needed to work. He was also never offered membership of the occupational pension scheme. Addressing the events of March 2014, she said that the complainant had been upset and was crying on the phone when he was told that he was losing his job. He had sought part-time work with the respondent but wanted to keep working. After he left the respondent, he had sought other full-time employment. She outlined that the complainant had been deemed fit to work by a company doctor and because he was a cross-country runner, he had a good level of fitness. In cross-examination, the complainant’s spouse acknowledged that he had had a preference for part-time work, especially to have more Sundays off. They were able to spend very little time together. He was working six day weeks and had a Sunday off every four to five weeks. He had offered to work in any store.

2.4 It was submitted on behalf of the complainant that the respondent did not then operate a retirement age. The document entitled “terms and conditions of employment” does not specify any such age. It was the respondent’s practice to move staff to rolling contracts after they turned 60, but this is not permitted by section 34 of the Employment Equality Acts. Such staff members were placed at a disadvantage as permanent employees were accommodated first in the allocation of hours of work. If the respondent does, in fact, maintain a retirement age of 60, it falls on it to provide objective justification for this (relying on O’Neill v Fairview Motors DEC-E2012-93). The reasons advanced by the respondent were not sufficient. First, its reliance on long hours was not an evidence-based proposition and a generalistion. The reference to the need for a through-put of staff was undermined by the practice of retaining older staff, but by way of the yearly contracts.

2.5 In respect of the end of the complainant’s employment, the letter of dismissal of the 4th March 2014 only states that the respondent has decided not to renew the complainant’s contract for another year. There is no reference to the part-time issue now raised by the respondent. It was a unilateral decision of the respondent to end the complainant’s employment. The employment relationship did not end because of retirement, but came to an end after the complainant asked for part-time work. He had not declined to work and nor had he left because part-time hours were not provided to him. It was submitted that the performance issues referred to in the employee file notes kept by the respondent had never been brought to the complainant’s attention.

2.6 In closing submissions, the complainant outlined that discrimination had arisen in this case when the complainant’s contract of employment was not renewed. It was not appropriate to take the request for part-time hours as grounds not to renew the contract of employment. In respect of the conflict of fact between the parties over whether the complainant had requested only to work part-time hours, it was submitted that the notes maintained by the respondent do not record the complainant as having made this request. The correct position is that the complainant asked for part-time hours, if possible. It was further submitted that the complainant was put on one-year contracts because of his age. This was discriminatory and the provision of each contract of employment was a discriminatory act. It was also submitted that the rolling one-year contracts represent connected acts of discrimination and the provision of such contracts cannot be justified. The respondent had made assumptions regarding his fitness to work based on his age, and such assumptions are the ill the Employment Equality Acts seek to address. The letter of dismissal would not have been issued had the complainant been on a permanent contract. It was significant that the complainant had sought full-time employment after this role. In respect of the retirement age, there was no age specified in the contract of employment and the respondent had not communicated with staff about the insertion of such a retirement age. The evidence regarding conversations with a named colleague was not credible. The complainant referred to McCarthy v Calor [2008] 19 E.L.R. 269 as authority that a retirement age must comply with Article 6 of Directive 2000/78 and this applied to private sector employers. Commenting on Sweeney v Aer Lingus DEC-E2012-135, it was a factor in this case that only one person had had their retirement age extended beyond 65. In respect of McCarthy v HSE [2010] IEHC 75, it was submitted that this case related to a statutory retirement age and this was not applicable here. Addressing whether a personal representative could maintain a complaint where the complainant is deceased, it was submitted that a complaint made under the Employment Equality Acts was a “cause of action” within the ambit of section 7 of the Civil Liability Act, 1961. It was submitted that the Equality Tribunal decision in Ibidunni v Boston Scientific (DEC-E2010-230) was authority that complaints could be pursued on behalf of a deceased complainant.

3. Summary of the respondent’s submissions:

3.1 At the outset of the hearing, the respondent outlined that a complaint made pursuant to the Employment Equality Acts could only be advanced according to the provisions of the statute itself. The Employment Equality Acts do not allow personal representatives of a deceased complainant to pursue a complaint. It was submitted that Employment Equality complaints are not a “cause of action” within the scope of the Civil Liability Acts. They do not survive the death of a complainant.

3.2 The respondent outlined that section 34(4) of the Employment Equality Acts provides for discrimination on the grounds of age. Article 6 of Directive 2000/78 refers only to Member-States and does not refer to private actors. Commenting on Donnellan v the Minister for Justice [2008] IEHC 467, the respondent said that this case related to a statutory retirement age, i.e. a matter of State law. In Doyle v ESB [2013] 24 E.L.R. 34, the Equality Tribunal upheld the retirement age in question as it was not feasible to have different retirement ages in a workplace. The respondent referred to paragraph 4.13 of the decision and the references therein to the size and cohesion of an organisation as well as the reference to an age proxy in place of individual assessments. The respondent relied on McCarthy v HSE, in particular where the Court relied on the CJEU authority of Palacios de la Villa v Cortefiel Servicios SA [2007] ECR I-8531 to affirm the retirement age in question. The respondent further opened Minister for Justice, Equality and Law Reform v Director of the Equality Tribunal [2009] IEHC 72, where Charleton J. held that the Equality Tribunal was subsidiary to the High Court and the Supreme Court and could not override statute.

3.3 The respondent outlined that the complainant was an excellent employee. It was a fact that the role involved many hours of standing on the shopfloor. A shift could last for 11 hours and included late, 9pm, finishes. The respondent said that the retirement age had initially been set according to its occupational pension scheme. The scheme closed to new members in 2002 and the complainant had not been a member of the scheme. The provision of fixed-term contracts was applied to all workers when they reached age 60. The complainant had no comparator and also never objected to being provided with such a contract. Referring to the employee file notes, the complainant’s periods of sick leave were indicative of issues he faced. In February 2014, the complainant had sought a part-time position and indicated that he did not wish to work late nights. The respondent had no part-time positions available at this time and the complainant’s employment came to an end on the 4th March 2014.

3.4 The Operations Director gave evidence. He said that the complainant commenced working for the respondent in 2008 and worked initially in the Fonthill store, later moving to the Bray store. He held a senior sales role and this involved meeting and greeting customers and talking through products with customers. The role involved being on one’s feet for long hours. The working week was 40.5 hours, spread over 5.5 days. There would be one or two 10am to 9pm days per week. While the contract of employment did not provide for a retirement age, the retirement age came from the pension plan. The director referred to one named colleague and said that this colleague was a member of the pension scheme, and that the complainant would have known of the retirement age through him. This colleague had turned 60 the year before the complainant and was also on rolling one-year contracts. He said that sales staff are social creatures and would discuss such matters. The director outlined that the physical demands of the job required a retirement age of 60. After that, the respondent provided rolling contracts and staff were permitted to remain on in a full-time role. He outlined that the named colleague remained in employment, at age 66. The director said that the complainant had been the first member of staff who was not a member of the pension scheme to reach the age of 60. This had not been flagged for some time, and the director spoke to the complainant about this in October 2011. The complainant had been happy enough to sign the contract, and returned it the day after it was given to him. The director outlined that the complainant had encountered medical issues, giving the example of 20 days of sick leave he had to take in February 2014. The complainant then raised the issue of his hours, stating that he wished to spend more time visiting a family member in the UK. The director said that he replied that he would look at the possibility of part-time hours. He outlined that the roster provided for five full-time staff spread over the opening hours of the store. There was no capacity to accommodate a part-time role, and it was also not possible to schedule day-only hours.

3.5 In cross-examination, the director said that the complainant’s contract was not renewed because he was struggling with the job and because he wanted a part-time role. He had checked whether there were part-time roles in others stores, for example in Sallynoggin or Tallaght. He confirmed that the employee notes were centrally maintained by the respondent. He referred to the note of the meeting with the complainant of the 4th March 2014 and said that the complainant had not been happy. The director said that the issue of retirement ages had not been on the radar and this is why no age had been specified. A retirement age had been included at clause 21 in contracts for new staff post 2010. The director said that the respondent had not communicated with existing staff about the retirement age. The pension scheme had been closed to new members in 2002. Commenting on the sales role, the director said that it was hard for a salesperson to stand for so long and the complainant had commented that he was struggling with the hours. He had already been working less than the 40.5 hours per week; he often came in late and left early. The complainant had been referred to a medical assessment by the respondent. Commenting on the letter of the 4th March 2014, the director acknowledged that it does not refer to the issue of part-time hours and characterised the letter as a “straight” letter. He outlined that he took it that the complainant was not interested in continuing in a full-time role after it was not possible to accommodate the request for part-time hours.

3.6 In closing submissions, the respondent outlined part of the complainant’s case was proper for an Unfair Dismissals claim as it related to the complainant not getting another fixed term contract with the respondent. This was not a point relevant to the Employment Equality Acts. The complainant had expressed no interest in full-time hours and had expressed difficulties in meeting the demands of the role. The complainant had failed to provide comparators who had obtained part-time positions with the respondent. There was no evidence of difference in treatment and the complainant was obliged to point to a younger person who had been offered a part-time role. It was unfair to colleagues to require that work hours practices to be changed to accommodate the request of one person. It was further submitted that the respondent was entitled to have a retirement age and it was also lawful for the respondent to provide staff over the retirement age with rolling contracts. The respondent relied on the case of Sweeney v Aer Lingus, where the contract of employment did not provide for a retirement age, but the Equality Tribunal concluded that a retirement age of 65 was common. It also referred to custom and practice in establishing whether a retirement age existed, relying on O’Reilly v Irish Press [1937] 71 I.L.T.R. 194. It further submitted that the Labour Court authority of McCarthy v Calor had been superseded by the High Court decision of McCarthy v HSE where the Court had no issue in endorsing an age of retirement.

4. Findings and reasoning:

4.1 The complainant was employed by the respondent between the 1st December 2008 and the 4th March 2014. He worked in a full-time position as a senior sales person on the shopfloor of the respondent’s store in Bray, Co. Wicklow. The complainant states that his dismissal was discriminatory on the grounds of age and that it was also discriminatory to have moved him to yearly fixed term contracts, signed on the 10th October 2011, the 5th March 2012 and the 20th March 2013. The respondent denies the claim, stating that the dismissal arose out of the complainant insisting on part-time hours, which it was not in a position to provide. Furthermore, it operates a retirement age of 60, which the complainant was aware of. It is submitted that section 34(4) of the Employment Equality Act provides that an employer may set a retirement age, without having to justify it. Further, and in the alternative, the respondent submits that the retirement age of 60 is proportional given the demands of the role and the needs of the respondent. The respondent submits that the estate of a deceased complainant may not pursue a complaint under the Employment Equality Acts without there being explicit statutory authority in the Acts to do so.

4.2 This case is marked with sadness due to the death of the complainant on the 14th August 2014. There are legal issues arising from the complainant’s death with regard to the advancement of this complaint. The first issue relates to evidence. The complainant’s wife spoke on her late husband’s behalf. There are obvious evidential issues attached to such evidence as it is, essentially, hearsay. The respondent was also unable to carry out a cross-examination of the complainant’s evidence. I have taken account of these factors in reaching the findings below. The second issue relates to jurisdiction and whether the personal representative of a deceased complainant may continue a complaint following the death of the complainant. The complainant relies on Ibidunni v Boston Scientific to assert that the complaint may proceed. The respondent asserts an adjudication pursuant to the Employment Equality Acts is a creature of statute and only has the powers granted to it by this statute. No such power is provided in the statute. Having considered the submissions of the parties, I find that the personal representative of the complainant is entitled to advance the claim on behalf of her late husband. I do so for the following reasons. Section 7 of the Civil Liability Acts provides as follows:

“7.—(1) On the death of a person on or after the date of the passing of this Act all causes of action (other than excepted causes of action) vested in him shall survive for the benefit of his estate.

(2) Where, by virtue of subsection (1) of this section, a cause of action survives for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person shall not include exemplary damages, or damages for any pain or suffering or personal injury or for loss or diminution of expectation of life or happiness.

(3) Where—

(a) a cause of action survives by virtue of subsection (1) of this section for the benefit of the estate of a deceased person, and

(b) the death of such person has been caused by the circumstances which gave rise to such cause of action,

the damages recoverable for the benefit of his estate shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included.

(4) The rights conferred by this section for the benefit of the estate of a deceased person are in addition to the rights conferred on the dependants of deceased persons by Part III of the Act of 1936 and Part IV of this Act.”

The Act does not provide a definition of “cause of action” but does provide that “action”“includes counterclaim and proceedings by way of arbitration”. In Ibidunni v Boston Scientific, the Equality Tribunal relied on the UK Court of Appeal decision in Harris v Lewisham & Guy’s Mental Heath Trust [2000] IRLR 320. The following principles can be drawn from the two substantive judgments in Harris:

· The question is not whether anything in the Discrimination Acts confers rights to personal representatives, but whether there is anything that takes such rights away;

· The fact that other employment law statutes expressly confer such a power on personal representatives does not mean that Discrimination Act complaints cannot rely on the UK equivalent of section 7;

· There is no statutory definition of “cause of action”. The Court of Appeal defined it as a factual situation the existence of which allows one person to obtain from a court a remedy against another person;

· The word “court” is not confined to courts of law in the narrow and traditional sense;

· There is no preclusion in Discrimination Acts to prevent a personal representative from pursuing a complaint on behalf of a deceased complainant.

Given the similarities between the civil liability and employment equality provisions in this common law jurisdiction and in the UK, the Harris case is persuasive in deciding that the personal representative of the complainant is entitled to pursue the within complaint.

4.3 The essence of this complaint relates to the ending of the complainant’s employment with the respondent. The complainant asserts that this arose due to his age and would not have happened but for the expiry of the fixed-term contract. The respondent states that the employment relationship ended when the respondent could not provide the part-time hours requested by the complainant. It denies the claim of discriminatory dismissal. Having considered the evidence and submissions presented, I find that the claim of discriminatory dismissal is well founded. I reach this finding for the following reasons. There was a conflict of fact as to whether the complainant, in effect, insisted on part-time hours. I resolve this conflict in the complainant’s favour because neither the employee file notes nor the letter of dismissal refer to this issue being the reason for the end of the employment relationship. I also conclude that the dismissal of the complainant was due to his age. The complainant’s employment status had been altered by the respondent to that of being on rolling fixed-term contracts. This alteration was made because of the complainant’s age. The respondent later sought to rely on the expiration date of the third contract and, I note, paid notice pay. I find as fact that the determining factor was not the part-time work issue or his ability to do the job, but the issue of the complainant’s age. I find that had it not been for the complainant’s advancing age, he would not been dismissed. The respondent had not established that the complainant was unfit for the role. The complainant was subject to particular and detrimental treatment due to his age, this being his dismissal. Furthermore, he was not retired on the 4th March 2014, but dismissed from his employment.

4.4 In assessing loss, I note that the complainant was dismissed in March 2014 and passed away in August 2014. I also have regard to his length of service with the respondent; the fact that he did not have access to the pension scheme and I accept the evidence that he sought work after his dismissal. Taking these factors into account, I make an award of €12,400.

4.5 The parties made submissions as to whether the respondent maintained a retirement age of 60 at the relevant time; whether the complainant was aware of it; whether the respondent was required to justify it and whether it was, in fact, proportional. These are broader issues relating to the respondent’s treatment of staff when they reach the age of 60, both before and after the 2010 contract. As outlined above, the essence of this case relates to the circumstances of the ending of the complainant’s employment. I understand that he was in a unique situation of not being able to avail of the pension scheme closed to new members in 2002 and pre-dating the 2010 contract. I have made findings and given the above award in relation to his case. Given these findings and decision, it is not necessary to make findings on the broader issues.

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 that the complainant was subject to a discriminatory dismissal on the grounds of his age.

5.2 Pursuant to section 82 of the Employment Equality Acts, the respondent shall pay, as redress for the above breach of the Employment Equality Acts, the amount of €12,400 to the personal representative of the complainant.

5.3 The entire award of €12,400 is redress for the infringement of the complainant’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act, 1997 (as amended).

____________________

Kevin Baneham

Adjudication Officer/Equality Officer

18th July 2016