ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002330

Complaint for Resolution:

Date of Adjudication Hearing: 30th June 2016

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act 2015 and Section 79 of the Employment Equality Act 1998, and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Also in attendance was the Son of the Complainant

Background:                                                                                                                                                     . The Complainant was submitting that the Respondent had discriminated against her in respect of her conditions of employment on the grounds of age and further had harassed her on the grounds of age in breach of the provisions of the Employment Equality Act.

Summary of Complainant’s Case:  

The Complainant said she commenced employment with the Respondent on 29^th June 2009, as the Director of Nursing (DoN) and Person in Charge (PiC) of one of their nursing homes.

The Complainant said that her contract of employed provided in relation to retirement age that:

“the normal retirement age for all employees is sixty-five (65) years and this contract will automatically terminate on reaching this age.”

The Complainant said that she was in her 64^th year when she commenced employment with the Respondent and she said that clearly the retirement age of 65 years old was never intended to apply to her.   On reaching the age of 65 years, the Complainant contacted the HR Manager to inform him that she was working under a contract of employment that included a clause that she must retire at age 65; he told her that she need not worry about that.

The Complainant quoted from the description of discrimination contained in the Act and said that in this case she was treated less favourably than a younger person would have been treated in a comparable situation.

The Complainant also quoted from the definition of harassment contained in the Act.

The Complainant said that on 27^th March 2015, she met with the CEO at a named location.   They went for lunch and discussed the facility they had just viewed.   The CEO asked her if she believed she could manage both facilities i.e. the one they had just viewed and the nursing home she was DoN and PiC of, and she informed him that she believed she could if she were to divide her time between one for 2 days a week and the other for 3 days a week and she informed him that such a proposal would require senior personnel in both locations.

The Complainant said the CEO then began a line of extremely inappropriate and discriminatory questioning of her.   He asked her if she had any plans for the near future as she was coming up to a “big birthday” (her 70^th birthday in October 2015).   While shocked and taken aback by such inappropriate questions, the Complainant informed the CEO that she had no plans, that she was very happy in her job and that she could continue in her job.   She informed him that if at any time she felt that she wanted to retire she would provide him with plenty of notice of her intentions in that regard.   The Complainant said that nothing further was said regarding her retirement.

On 28^th September 2015, the Complainant sent her weekly Monday morning report to Head Office.   In it she outlined the difficulties experience in the Nursing Home as a result of staff shortages; she sought the provision of additional staff in order to provide adequate care to residents.   She subsequently received a telephone call from the CEO to inform he would visit the following day, 29^th September 2015.   When he arrive on that date he and she had a very worthwhile discussion in relation to staffing levels and they then had lunch together in her Office.   Following this he then complimented her on her achievements with the Nursing Home and on obtaining her Masters Degree and he said that she was doing a good job.

The Complainant said that the CEO than, as in May 2015, commenced a line of extremely inappropriate and discriminatory questioning of her.   He asked her if she planned to retire soon as she had a big birthday coming up.   She again informed him that she did not have any plans to retire.   He said that she was an intelligent, accomplished woman who could do anything she wanted.  

The CEO than sought to force the Complainant to retire on 31^st March 2016.   He said “I think we need to tie down to a date, so I am going to say 31^st March 2016.”   The Complainant said she was distressed, shocked and upset by this announcement and she asked the CEO “Are you firing me?”   She said that he did not answer that question.   The CEO asked the Complainant to announce details of her retirement to the staff, in his presence, on that same day, but she refused to do so.

The Complainant said she did not hear anything further from the CEO in relation to his ultimatum that she retire on 31^st March 2016.   Accordingly and due to the uncertainty surrounding the matter she telephoned the CEO on 6^th November 2015.   The Complainant asked the CEO if he had had time to reflect on their last discussion when he had issued her with an ultimatum that she retire on 31^st March 2016, he replied that his decision still stood and that the Complainant had to retire on 31^st March 2016.   The CEO said that he had been reviewing the Complainant’s position on an annual basis and that her job is very stressful and placed great strain on her.   He said that 70 is a reasonable age at which to retire and he said that he needed to draw a line under the situation.   The Complainant asked that the CEO put his decision that she must retire in writing to her and he said that he would, but to date he has not done so.

On 19^th November 2015, the Complainant received a telephone call from the CEO, requesting a meeting with her and they met on the following day in her Office.   The CEO told the Complainant that he wanted to talk about her retirement and he asked her if she had given any further consideration to the date on which she would retire.   The Complainant told the CEO that she was deeply shocked and upset about his issuing an ultimatum to her that she must retire on 31^st March 2016.   She informed him that she did not understand what her age had to do with her job in circumstances where she was perfectly capable of performing her job.   The CEO asked her why she wanted to continue working and she responded that she needed to earn a living in order to maintain her standard of living.   The Complainant said the CEO then asked her further inappropriate and discriminatory questions.   He asked her if she had a pension and whether she had made provisions for her retirement.   She said that he continued to exert inappropriate pressure on her.   She said that he demanded that she provide him with a date for her retirement.   The Complainant said that she could not do that and she said the CEO then commenced threatening her.

The CEO told the Complainant that he would have to arrange a medical examination of her to establish her fitness to work as he did not want her collapsing on the floor with stress.   She then asked him if she appeared unwell and incapable of doing her job, he replied “at the moment you are okay, but how long can that last?”.   She reminded him that she had just obtained a Masters Degree and that that surely was a testament to her ability to perform her job.   The CEO instructed the Complainant to provide him with a date for her retirement as soon as possible.   The Complainant said she did not do so.

The Complainant said that things appeared to improve somewhat when she received a letter of 17^th December 2015, from the CEO.   In this letter the CEO commended the excellent leadership of the Complainant and he thanked her and the staff for their excellent work during the recent flooding.

On 5^th February 2016, the Complainant received a letter from the HR Manager that the Respondent had asked a named company to conduct a risk assessment of her Director of Nursing role.

The Complainant was informed that a named person would be on the premises a 10.00am on 8^th February 2016 to conduct the risk assessment.   No reason was given as to why an engineer had been hired to carry out a risk assessment and it was submitted that the sole purpose of the risk assessment was to undermine the Complainant and to harass her.

The Complainant’s Solicitor wrote to the CEO on her behalf on 1^st March 2016, requesting that the Respondent clarify the basis upon which it was deemed appropriate that an engineer carry out a risk assessment of her role.   This letter also stated that the engagement of an engineer to perform a risk assessment was an attempt by the Respondent to seek to ground a removal of the Complainant for reasons other than her age and the letter informed that the Complainant had no intention of leaving her job at the end of March 2016 and sought written confirmation of the reason for the proposed termination of her employment on that date.   No response was received to that letter.

The Complainant referred to the Respondent’s policy in respect of risk management and they pointed out that Section 4.1 of that Policy provides that the Nursing Home shall perform risk assessments as required on an ongoing basis and that this shall follow a 4 stage process of:

1. Risk Identification
2. Risk analysis
3. Risk treatment
4. Continuous Evaluation

Paragraph 4.2 provides that senior staff of each area in the Nursing Home shall identify hazards and undertake the risk assessment of their own area.   The Complainant said that a risk assessment of the role of Director of Nursing demonstrates that that she, solely on the basis of her age, had been identified by the Respondent as a hazard that requires to be assessed.   The Complainant said that clearly the identification of her as a risk and a hazard has had a significant impact on her and has undermined her dignity in the workplace.

The risk assessment was carried out on 8^th February 2016

The Complainant said that in January 2012, following a management meeting, score chart evaluation reports were introduced by the Respondent.   The objective of this was that management could view this document and have access to a summary review of the Nursing Home’s overall performance by reference to HIQUA guidelines.   It was originally envisaged that these reports would be produced on a monthly basis.   6 evaluations were carried out in 2012, 1 in 2013, 2 in 2014 and none in 2015.   The evaluation was prepared by the Operations Manager along with the Complainant as Director of Nursing.

The Complainant said that on 15^th February 2016, an Evaluation Report was sent to her by email.   She said this was the first report to be produced without reference to her and it was submitted that the production of this document without reference to her was part of an orchestrated campaign of harassment to undermine her.   This Report is 17 pages long, 10 pages longer than the previous one and it contains criticism of the Complainant and attributes blame to her for the loss of staff, yet it makes no reference to the impact of staff shortages on the overall performance of the Nursing Home.   The Complainant said this Report was produced 5 months after she was told to retire and was sent to her one month prior to the date she was expected to retire.

The Complainant said Page 10 of the Report states that the Director of Nursing (the Complainant) has been upset and disappointed to have been asked to plan her retirement date, as she feels she would like to continue working.   It states she would rather not identify a planned date for her retirement and states that this makes it difficult to plan her successor.   The Complainant states that this is the first reference by the Respondent to a succession plan.

On 16^th February 2016, the Complainant and the CEO met.   They initially discussed staffing levels in the Nursing Home.   The CEO then said he wanted to talk to the Complainant about her retirement; he said he wanted to draw a line under the matter and he was sticking with his original retirement date of 31^st March 2016.   The Complainant asked why the matter was being raised again as it had not been raised by the CEO for a number of months. The Complainant said that quite extraordinarily the CEO responded that the Nursing Home was being mismanaged.   The Complainant said that at no time prior had any indication been given to her that there was any issue with her work and she said that this had a drastic effect on her as it represented a total falsehood with a view to removing her from her employment.

The Complainant said that as she had been subject to months of harassment about her age she attended with her GP for treatment for stress and anxiety on 10^th March 2016.   Her GP certified her as unfit for work due to work related stress, that she said was caused by repeated harassment by the Respondent.

By letter of 11^th March 2016, the CEO wrote to the Complainant setting out his concerns about her ability to cope with her job.   Included with this letter was a copy of the Report from the Engineering Inspection of 8^th February 2016.

The Complainant said she was shocked by the contents of the Report, which she said contained gross generalisations and from which it is clear that there was a predetermined outcome to the Engineering Inspection.   She said the Engineer clearly misunderstands the role of Director of Nursing   She said that if one were to accept the findings of the Report as valid, which she said she does not, any employee over the age of 50 years would not be safe working in the Nursing Home.   She said the Report refers to research, which is not specific to nursing home, that older workers, those over 50 years age ”tend to have fewer accidents and are at no increased risk of occupational accident, but when an older worker does get injured their injuries are often more severe.”   In conclusion the Engineer expressed the view that the Complainant’s risk of being injured is unacceptably high.   The Complainant said it is not clear from the Report how the risk of injury to her is any different to the risk of injury to other employees when the research data suggest less risk.

The Complainant said that by letter of 24^th March 2016, her Solicitor wrote to the CEO stating inter alia that the obvious solution to any of the alleged issues identified in the CEO’s letter was the provision of adequate staff to the Nursing Home.   The Complainant’s Solicitor did not receive a response to this letter.

On 4^th April 2016, while on sick leave the Complainant attempted to remotely access the Nursing Home computer system, to which she had had access and discovered that she was now denied access to the system and she said the effect of this was to undermine her and she felt harassed.

On 11^th April 2016, the Complainant requested that a work colleague collect 2 personal items from her filing cabinet and bring them to her home.   Rather than bringing her only the 2 items requested she was given a box containing all of her personal belongings from her Office.   She felt that she had, in effect, been evicted from her place of work.   She said this was upsetting for her.

On 26^th April 2016, when she had been on sick leave absence for 7 weeks, the Complainant received a letter from the HR Manager, in which was stated, that as she “had been absent from work for the last number of weeks, we wish to set up an independent medical assessment for you.”   The Complainant said that since 2009, on numerous occasions she has requested that the HR Manager arrange an independent medical review of employees on extended periods of sick leave, but he has never done so.

On 6^th May 2016, the Complainant’s Solicitor wrote to the HR Manager stating that the extraordinary treatment being administered to the Complainant by the Respondent would be brought to the attention of the WRC in due course as evidence of discrimination of the Complainant

The Complainant attended a medical appointment with an Independent Doctor on 10^th May 2016.   This Doctor examined the Complainant and produced a Report sent to the HR Manager on 17^th May 2016.   The Report expressed the view that the Complainant was fit for work; however the Report was not provided to the Complainant, she did however obtain a copy of it following a data access request.   The Complainant said that despite the fact that this Doctor had certified her as fit to return to work the Respondent has not contacted her about her return to work.

The Complainant said that she has been extremely successful in her role of Director of Nursing.   She said it has conveniently been recently suggested by the Respondent that she is unable to do her job; yet she has never been invited to a performance enhancement meeting; she is a senior employee with a particular expertise in her role of Director of Nursing.   The Complainant said that the Respondent simply wants to dismiss her because she is 70 years of age.

The Complainant said the Respondent now appears to seek, long after the decision was made by the CEO that she must retire on 31^st March 2016, to show objective grounds to justify their attempt to dismiss her at 70 years of age.   The Complainant submitted that the Respondent cannot show objective justification for their discriminatory treatment of her and that accordingly she has been unlawfully discriminated against.

The Complainant said that if it is suggested by the Respondent that the Complainant agreed to retire when she reached the age of 70 years, surely an amendment would have been agreed to her contract of employment, which provides for a retirement age of 65 years.   It was submitted that such inferences as appropriate should be drawn from the Respondent’s failure to keep any notes should an agreement be alleged by the Respondent.

The Complainant said that the available documentation states the retirement age is 65 year, which clearly was not intended to apply to her.   She said the Respondent cannot simply recite health and safety concerns simpliciter as a formula to justify direct discrimination.

The Complainant said the Respondent has failed to demonstrate exactly why they believe she cannot continue in their employment as Director of Nursing.  

She said the Medical Report prepared by the Respondent’s own Occupational Assessor states she is fit to work.   She said the Respondent has been unable to establish any clear evidence of a risk involved to her in continuing in their employment.   She said evidence is required – not simply a vague suggestion of a risk – in circumstances where the Respondent is seeking to deprive her of her livelihood, a constitutionally protected right.   The Complainant said the Respondent’s arguments are based on an assumption that older people are unable to deal with certain matters in the workplace that younger employees can.   The Complainant said that if any risks had been established (which is denied by them) the Respondent did not take any measures, including heightened safety measures, to facilitate her remaining in their employment.   The Complainant said that health and safety concerns of a generic nature do not relate to her role with the employment and in any event adequate staffing levels would remove the requirement to carry out manual tasks.

The Complainant said that in this case a normal retirement age of 65 is not and never could have been enforced against her, but rather she is being harassed and discriminated solely because she is 70 years of age.   She said that as no objective justification exists, the Respondent has engaged in a campaign of harassment to undermine her to such an extent that she will leave her employment.

The Complainant sought that the Adjudication Officer should make an order for compensation for the severe effect of the acts of discrimination and the harassment on her and an order that the Respondent cease harassment and discrimination of her in accordance in accordance with Section 82(1)(c) and Section 82(1)(e) of the Acts.   The Complainant said that given the arbitrary nature of the Respondent’s actions and their efforts to undermine her, she is seeking damages that represent the profound effect the discrimination and harassment has had on her and she further said that the award should also act as a deterrent to the Respondent and others from engaging in such discriminatory behaviour.   She said that discriminatory treatment has had a devastating impact on her career and on her health.

The Complainant referred to and quoted from the following in support of their position.

• O’Neill -v- Fairview Motors DEC -2012-93
• Lee -v- Fox EED 036/2003   and
• Farrell -v- Irish Youth Promotion Limited DEC-E2011 - 02

Based on the foregoing the Complainant sought a favourable decision.

In her direct evidence the Complainant said in relation to the discussion of 25^th March 2015 that it was a casual discussion between her and the CEO over lunch.   She was asked had she any plans to retire and she said no I have no plans.

In relation to the discussions of 28^th September 2015, the Complainant said that towards the end of the Meeting the CEO raised the issue of her retirement and he gave her an ultimatum that she had to retire on 31^st March 2016.   He said he wanted to give her 6 months to train someone up as a replacement.   She said that the CEO asked her did she want to announce her retirement to the other staff.

In relation to the discussion of 6^th November 2015, the Complainant telephoned the CEO as she had heard nothing further from him in the meantime and she asked him did he wish to reconsider his position in relation to her enforced retirement; he said he did not and she asked him to put the position in writing to her, he said he would, but he did not do so.

In relation to the discussion of 20^th November 2015, she said that during that discussion she asked the CEO what her age had to do with her job when she was perfectly capable of performing her job.   She said that when the CEO told her that he would have to arrange a medical examination to establish her fitness to work, she asked him if she appeared unwell and incapable of doing her work he replied that she was okay at present but questioned how long that could last.

The Complainant referred to the Score Chart being done without reference to her and she said this Score Chart was then used to justify an allegation that she was not doing a good job.

The Complainant answered questions from the Respondent.

She was asked in what way was she being wronged by the Respondent and she said that based on her age she was being forced to retire; that she was being ordered to leave her job and it was cause only by her age and this was not fair.

The Complainant agreed all her discussions with the CEO were cordial and there was no rudeness or bad manners involved.

The Complainant was asked why she was shocked at a discussion of her retirement on 29^th September 2015, bearing in mind it had previously been discussed with her, including on 27^th March 2015, some 6 months earlier.   She said she believed the matter had been concluded or disposed of by the earlier meeting in March 2015.

The Complainant agreed that the Respondent had part-financed her Masters Degree.

In relation to the Independent Consultant Engineers Inspection and Report, the Complainant and her Representative said and emphasised they were not questioning the Engineer’s qualifications or his independence.   They said they would question the act of the Respondent in engaging the Consultant Engineers and it’s relevance to the Complainant’s role.

Summary of Respondent’s Position:

The Respondent said the Complainant alleges that she has been subjected to discriminatory treatment on the basis of her age by them

The Respondent said the Complainant commenced employment with them on 29^th June 2009 as Director of Nursing (DoN) and Person in Charge (PiC) in their 62 bedded residential care facility for the elderly.

Upon commencement of employment the Complainant signed a contract of employment, which stated retirement age in the employment is 65 years of age.   When the Complainant reached the age of 65 years, thereafter she was employed on yearly fixed-term contracts of employment.

The Respondent said that once the Complainant passed the normal retirement age, the CEO conducted annual discussions with her regarding a possible retirement date.   These discussions were held in good faith as the CEO worked with the Complainant on facilitating her needs and desire to remain working and these discussions were held on the basis of a verbal agreement that the Complainant would retire.  

The Respondent said that in one such discussion on 11^th June 2014, the CEO believed the Complainant to agree to retire once she reached 70 years of age and they said this was also the case when the CEO met with her again on 27^th March 2015.

The Respondent said that on 29^th September 2015, the CEO again spoke to the Complainant about her plans to retire, given that they were approaching her 70^th birthday at this time.   She expressed reluctance to retire at this time, so he agreed to an extension for a further 6 months of employment to end on 31^st March 2016.

The Respondent said that after this meeting on 29^th September, it appeared to be the case that the Complainant changed her mind about retirement; she had a meeting with the CEO on 20^th November 2016, at which she was told to take some time to decide when would be a good time for her retire, but she never reverted to him in that respect.

The Respondent said that at all times during his discussions with the Complainant regarding her retirement, the CEO’s primary concern was her welfare from a health and safety perspective as the job of DoN and PiC involves significant challenges, specifically so in a 62 bedded nursing home.   The Respondent said these concerns were further compounded when they became aware of the fact that the Complainant was working wearing a supportive boot due to a leg injury.

The Respondent said that since January 2016, they have become increasingly concerned about the ability of the Complainant to cope with the job of DoN and PiC and those concerns were put to her in a letter of 11^th March 2016.

The Respondent said that on 8^th February 2016, they hired an Independent Consultant Engineering Health and Safety expert to undertake a Role Assessment the role of Director of Nursing in the Nursing Home; the purpose of this was to determine independently the risks in relation to the role from a health and safety perspective.   The Report from this Assessment concluded that the role was a significantly challenging one, that is increasingly demanding and that the Respondent should immediately consider the Complainant’s suitability for the role.   The Respondent said that a copy of the Report was sent to the Complainant along with a letter on 11^th March 2016.

In addition the Respondent found that the most recent Nursing Home Scorecard identified many issues that demanded immediate attention; however the Complainant remained reluctant to implement the improvements required.   The Respondent said that successful achievement of the objectives identified in the associated Action Plan is mandatory and an important priority for the DoN and the Complainant’s reluctance to positively engage in achieving compliance is a major matter of concern for them.  

The Respondent said it should also be noted that since May 2016, they have seen a loss of staff and a number of new challenges have presented themselves in the requirement to hire and induct new staff.   The Respondent has seen a loss of expertise and capabilities and the rebuilding of capability has made the DoN role even more challenging and frustrating.   The Respondent said the Complainant has been absent from work since March 2016 on sick leave for hypertension and stress.

The Respondent said that the Complainant has now claimed that she has been discriminated against by them by reason of her age.   More specifically, she has claimed that the Respondent is purporting to unlawfully terminate her employment on the basis of her age and that since September 2015, the CEO has engaged in an unlawful campaign of intimidation, harassment and bullying of her as means of forcing her to retire.   The Respondent said that clearly this was never the intent of them and that accordingly they deny each of these complaints.

The Respondent said that the basis of making a complaint under the Acts is that the Complainant elects a comparator to whom they compare their treatment.   The Respondent submitted that the Complainant has not made such an election and she has produced no evidence that any alleged maltreatment of her, or conditions of her employment are different to that of any other employee.   The Respondent submitted that in this regard that both the Acts and the Directive upon which they are based provide that discrimination can only occur where “a person is treated less favourably than another person is, has been, or would be treated in a comparable situation.”   The Respondent submitted that the Complainant was not treated differently or less favourably than any other person would be in a comparable situation.   The Respondent submitted that any other employee over the age of 65 years would be assessed as the Complainant was, in order to ascertain whether there were significant health and safety issues for that person to remain in their job beyond the normal retirement age.

The Respondent quoted from Article 6 of the Council Directive 2000/78/EC.

The Respondent said that the general approach that should be adopted in considering cases of age based discrimination was laid down by the European Court of Justice in the case of Felix Palacious de la Villa -v- Cortefiel Servicios [Case C-411/05, ECJ 16 October 2007].   That Complainant worked for that Respondent from 1981 until 2005, when he was notified of the termination of his employment as he had reached the compulsory retirement age of 65 years.   The ECJ held that the Spanish mandatory retirement age of 65 years was not discriminatory as it was objectively and reasonably justified as achieving a legitimate aim of national employment policy, i.e. the reduction of unemployment amongst persons under the age of 65.   The Respondent said that in a subsequent decision of the ECJ the Heyday Case [Case C-388/07] the ECJ held that a fall back retirement age of 65 in UK Law is not discriminatory so long as it is objectively and reasonably justified by a legitimate social policy aim and if the means of achieving that aim are appropriate and necessary.

The Respondent submitted that therefore it is the case that age-based direct discriminatory treatment is capable of being objectively justified with reference to a legitimate aim of the business.   The Respondent said that in the instant case they have objectively justified their treatment of the Complainant on a legitimate basis and have also done so in a reasonable manner.  

The Respondent said the role of Director of Nursing and Person in Charge involves significant challenges, especially in a 62 bedded nursing home, and as the Role Risk Assessment provided, due the increasingly demanding nature of the role they should immediately consider the Complainant’s suitability in this her job.

The Respondent said that it should also be noted that the Equality (Miscellaneous Provisions) Act 2015, which came into effect this year makes numerous amendments to employment equality law.   The amendments specifically refer to the concept of objective justification by allowing the setting of compulsory retiring ages if the setting of the compulsory retirement age be objectively justified.   The Respondent said that this amendment brings the Irish Law in line with the Grounding EU Directive on age discrimination.   They said that one of the consequences of the new law is that if fixed-term contracts of employment are offered post retirement the employer will have to demonstrate evidence of objective justification for the termination of the employment at the point of the expiry of the fixed-term contract of employment.

The Respondent submitted that their treatment of the Complainant has been objectively justified on health and safety grounds, they being genuinely concerned about the health and safety aspects of a person over normal retirement age carrying out such a difficult and stressful job.   They said that throughout the course of their discussions regarding the Complainant’s retirement, their primary concern has been her welfare from a health and safety perspective.

The Respondent said that equally this justification does lend to the legitimate aim of the Respondent’s business of providing an exceptional duty of care to their residents; a duty that is both appropriate and necessary in their field of work.   The Respondent said that their business is in need of a Director of Nursing who is capable of achieving compliance with the necessary objectives that are involved in such a challenging job.   The Respondent said the Nursing Home operates in a much regulated environment to very rigorous standards as monitored by HIQA (Health, Information and Quality Authority); this requires a fully fit and agile individual both physically and mentally.

The Respondent said it should be noted that the Respondent acted reasonably throughout this process as it evident by the fact that they took it upon themselves to carry out a detailed assessment of the Complainant’s role before they reached any final decision and by the fact that they continued to employ the Complainant on fixed-term contracts of employment after she had passed the retirement age.

The Respondent said that the Complainant has also complained that she was harassed as a result of the treatment she received from them.   The Respondent said it is well settled what harassment is defined as.   The question is whether the conduct of the Respondent in this instance had the “purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.”   The Respondent said that at no time did they, nor did they purport to, violate the Complainant’s dignity or create an environment that could be classed as intimidating, hostile, degrading, humiliating or offensive for the Complainant.   The Respondent said their primary concern throughout their dealings with the Complainant has been her welfare from a health and safety perspective as the role of any Director of Nursing and Person in

Charge involves significant challenges, that accordingly to the Role Risk Assessment is not suitable for the Complainant.   The Respondent said that to operate in this Sector they need to operate to the highest standards and all people need to be fully familiar with the objectives identified by these standards.   They said that to therefore insist that employees positively engage in achieving compliance objectives cannot be deemed to be either discriminatory or constitute harassment and regarding the latter it cannot possibly be an affront to a persons dignity.

The Respondent said that based on the foregoing and the facts of the case they did not discriminate, directly or indirectly or harass the Complainant and they sought a finding and decision to that effect.

The CEO gave direct evidence; he said he was/is the Executive Chairperson of the Respondent.

The Witness said and emphasised that he had a very good working relationship with the Complainant and that he had a great deal of respect, regard and trust for or in her.

The Witness said he met with the Complainant on her 67^th birthday, 20^th October 2012 and they discussed her retirement.   The Complainant told him that she would retire in a few years.   The Witness responded stating let’s draw a line in the sand and say on your 70^th birthday and he said the Complainant had no objection to this.

The Witness said that when he met with the Complainant on 9^th December 2013, they had a similar discussion about her retirement and again there was no objection or problem expressed by the Complainant.

The Witness said that when he met with the Complainant on 11^th June 2014, he again had a similar discussion with the Complainant about her retirement and again there was no problem or objection from the Complainant.

The Witness said that when he met with the Complainant on 27^th March 2015 they again discussed her retirement and he said that on this occasion as it was just over 6 months till the agreed date of retirement on her 70^th birthday, he emphasised that it was important for them to know exactly when the Complainant would retire in order to allow for succession planning etc.   The Witness said that again the Complainant raised no problem or objection.   The Witness said the Complainant did not tell him that she did not plan to retire.

The Witness said that when he met with the Complainant on 29^th September 2015, as it was his clear understanding that the Complainant would be retiring in the next month, October 2015, he wanted to agree a plan or arrangement for her retirement, succession planning and informing the other staff etc.     The Witness said that for the first time when discussing retirement, the Complainant said in relation to her retirement, no I’m not retiring.   The Witness said he was taken aback by this and he asked the Complainant “When would you like to retire?” but he said he got no response from the Complainant, so he suggested 6 months forward, i.e. 31^st March 2015, would be a good and appropriate time and he discussed using that 6 months as a transition and to make appropriate arrangements including succession planning.  

The Witness said they discussed informing staff of the retirement and the Complainant said that she would do so in the following days.   The Witnesses said that the Complainant raised no issue and no problem with his proposals and it was his clear understanding that she agreed to his proposal.

The Witness said that 5 weeks later he received a telephone call from the Complainant.   He said he was shocked when she said that she was not going to retire.   He asked her when she intended to retire; by she declined to answer his question.   The Witness said he then knew there was a problem, but he said this was the first indication he had of any problem in relation to the Complainant’s retirement.

The Witness said that when he met with the Complainant on 20^th November 2015, he tried to get her to state when she would retire.   He said she did not answer his question, but she said she would let him know within 2 weeks, but he said she did not do so.

The Witness said that on 16^th February 2016 he met with the Complainant to discuss the Score Card Evaluation Report.

The Witness pointed that contrary to the assertion of the Complainant and her Legal Representative he offered, in a letter of 11^th March 2016 (more than 3 months before the date of this Hearing) to meet with them and discuss the matters referred to in that letter, i.e.

• her retirement
• the Report of the Role Risk Assessment of the role of Director of Nursing carried out by a form of Consultant Engineers
• the recent Nursing Home Scorecard
• the Respondent’s duty of care in relation to her ability to effectively manage the professional running of the Nursing Home

This correspondence states in it’s final paragraph:

“I note the recent correspondence from your Solicitor and in light of that and the issues identified in this letter, I would like to invite you and your representative to discuss this letter and the outcome of the Role Risk Assessment as soon as is convenient.”

The Witness said that however this offer was not taken up by the Complainant and her Solicitor and he did not understand why it was not availed of.

The Witness answered questions from the Complainant’s Representative.

He said the Respondent had circa 1,500 staff.

When asked why he did not confirm in writing to the Complainant of the agreements he believed he had with her in relation to her retirement and related matters, he said that it was because of the excellent relationship they had, that it was all verbal and he did not consider it needed to be in writing because of his trust in her and he believed her trust in him.

He was asked were there ever others in similar positions (in relation to retirement) and he said there were others and that in those instances it was not necessary to put anything in writing either.

He was asked why he was he had concerns for health and safety in relation to the Complainant the Witness said his concerns was primarily for her health and further if they were in compliance with HIQUA requirement and the issues raised in the Nursing Home Scorecard Report.

Also in response to questions the Witness said that other Directors of Nursing had been assessed.

Findings and Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79 of the Employment Equality Act 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Section 82 of that Act.

The issues for consideration by me is whether or not the Respondent (a) discriminated against the Complainant in respect of her conditions of employment on the grounds of age, in terms of Section 6(2) of the Employment Equality Acts 1998 – 2008 and contrary to Section 8 of those Acts and (b) harassed the Complainant on grounds of age in terms of Section 6(2) of the Employment Equality Acts 1998 – 2008.

I have carefully considered and taken into account all the submissions, written and verbal as well as all the evidence made available to me, in reaching my conclusions, findings and decisions.

The Complainant’s written contract of employment, signed and dated by her on 19^th June 2009, provides at Clause 11. Retirement Age: “The normal retirement age for all employees is sixty-five (65) years and this contract will automatically terminate on reaching this age”   I find that this is the only written statement of a retirement age provided to the Complainant.   I do not accept as stated on behalf of the Complainant that this retirement age “was never intended to apply to apply to the Complainant”.   Had that been the case then this clause would not have been included in that contract, it would not have been difficult to remove it from the template.   It is also plainly the case that it was not the view or understanding of the Complainant at the time that this clause did apply to her as she states in her written submission that on reaching the age of 65 she contacted the HR Manager to inform him that she was working under a contract of employment that included a clause that she must retire at the age of 65 and that he informed her she need not worry about that.

The Complainant appears to consider any discussion with her or any question to her as to when she will retire as discriminatory on the age ground and as inappropriate.   I do not accept that any discussion with an employee in regards to plans for retirement is automatically discriminatory or inappropriate.   Many if not most employees of over 55 years of age and more so those over 60 years of age will testify to have been asked such questions and had such discussions with their employers, without any suggestion of discrimination or harassment. There are many valid, appropriate and non-discriminatory reasons for such questions or discussions.

Of more relevance in the instant case is the fact that the Complainant had by the stage these discussions took place worked well beyond the retirement age stated in her contract of employment and accordingly such discussions would be even more relevant.  

I find that it is perfectly reasonable in the circumstances of the instant case for the Respondent to have regular discussions with the Complainant about her intentions in relation to retirement and this is even more the case in circumstances where the Respondent became aware of the fact that the Complainant was working in the Nursing Home wearing a supportive boot due to a leg injury.

I note there is conflict between the parties in relation to content of the discussions between the parties on the question of the Complainant’s retirement that cannot be reconciled, accordingly I have had to make my finding and decision in that respect on the ‘balance of probabilities.’   I note that if, as stated by the Complainant, the Respondent wanted rid of her solely on the grounds of age, then it was open to them to simply terminate her employment upon her reaching normal retirement age of 65 years, or in the alternative to then confirm in writing to her that her employment was being extended for a stated period.   The fact that they did not do this tends to support their position that there were verbal agreements in relation to her continuing working beyond her normal retirement age.   I also note that the Respondent, in response to questions from the Complainant stated that there were other instances of others in similar positions in relation to retirement and that in those instances matters were dealt with verbally and matters were not put in writing and I note that this was not challenged by the Respondent, accordingly this appears to be the approach of the Respondent in such situation.     I further note that the Complainant confirmed that all of her discussions with the CEO on these matters were cordial and there was no rudeness or bad manners involved.     I find the evidence of the Respondent to be more coherent and in accordance with established fact and accordingly I find that the evidence of the Respondent in this respect is preferred by me.

I find no credible evidence of ageist behaviour towards the Complainant, or anyone else, by the Respondent.   If the Respondent did not wish to employ older people, then they would not have employed the Complainant at age 64 in the first instance and they certainly would not have facilitated her continuing employment post the normal retirement age contained in her written contract of employment of 65 years.

It is clear that there was some misunderstanding between the parties as to the situation in relation to the Complainant continuing in her role in her employment post normal retirement age, however I find that on the ‘balance of probabilities’ that it was not a totally open ended arrangement.

I find the Complainant and her Representative’s submissions and position in Relation to the Independent Consultant Engineering Health and Safety Role Risk Assessment of her job of Director of Nursing and the Report of same to be contradictory and incoherent.

The Complainant and her Representative stated: “that the engagement of an engineer was simply an attempt by the Respondent to seek to ground a removal of the Claimant for reasons other than her age and to harass her” and “it is clear there was a predetermined outcome to the Engineering Inspection”    

Both of these stated positions, and in particular the second would require the active participation or connivance of the Engineer conducting the assessment to achieve this result and it would certainly call into account the independence of the Engineer conducting the Assessment.

However at the Hearing the Complainant and her Representative stated and emphasised that they were not questioning the Engineer’s qualifications or his independence.   This of course is not compatible with there being a “predetermined outcome” or even with the Respondent seeking to ground a removal of the Complainant for reasons other than her age or harassing her.   However, I note that this was the direct evidence given verbally at the Hearing and I am accepting it as the position of the Complainant rather than that stated in the previous paragraph.  

This now being the case it is now the position that is accepted by the Complainant that the Report was produced by a competent, qualified and independent person and I must and will give it the weight that it deserves in such circumstance.

Based on the foregoing I find that the actions of the Respondent in this matter were and are objectively justified based on the Independent Consultant Engineering Health and Safety Role Risk Assessment Report in relation to the Complainant’s suitability to continue in the role of Director of Nursing in the Respondent’s Nursing Home.  

I further find that this objective justification does correspond with a legitimate aim of the Respondent’s business to provide an exceptional duty of care to their elderly residents and this a duty that is appropriate and necessary in the field of work the Respondent is involved in.

Decision.                                                                                                                                                 . Based on forgoing findings and conclusions I find and decide as follows:

(a)    The Complainant has failed to established a prima facie case of discrimination in respect of her conditions of employment on the grounds of age in terms of Section 6(2) of the Employment Equality Acts and contrary to Section 8 of those Acts

(b)   The Complainant has failed to establish a prima facie case of harassment on the grounds of age in terms of Section 6(2) of the of the Employment Equality Acts and contrary to Section 8 of those Acts

The Complainant’s complaints fail in their entirety.

Dated: 26^th September 2016___________________________________________