Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00005238-001

16/06/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00005238-002

16/06/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00005238-003

16/06/2016

The complainant was employed as a Community Employment Supervisor by the respondent, a Community Organisation. The employment commenced in December 1991 and terminated on 23 December 2015.   The dispute arises from this termination which occurred when the complainant reached her 66th birthday.   The complainant was in full time employment and was paid €772.50 (gross) at the time her employment ended.

The complainant worked for the respondent for 25 years and had an exemplary work record.

The complainant’s contract did not contain any retirement age.

The complainant had no wish to retire at age 66 and had requested that she remain in employment.

The sole ground for terminating the complainant’s employment was her age and this constitutes direct discrimination on the grounds of age.

The complainant is an employee of the respondent. The respondent is a company limited by guarantee which was formed for the sole purpose of providing a mechanism for the implementation of a community based employment (CE) scheme .

The funding of the CE scheme is discharged in full by the Department of Social Protection (DSP).

The Community Employment Scheme Handbook deals with the procedures for the CE scheme. The handbook states that the DSP will not provide funding to a Sponsor for any supervisor who has reached Sate Pension age.

Following the complainant’s request to remain in employment after her 66^th birthday the respondent approached the DSP in this regard. A few days prior to her birthday the respondent was informed that the DSP would not agree to this request and consequently the respondent had no choice but to terminate the complainant’s employment.

The complainant was not discriminated against as there was an objective justification for the termination of her employment.

Prior to the commencement of the hearing the complainant’ representative indicated that they were not proceeding with the complaint under the Unfair Dismissals Act 1977. A letter confirming this had been sent to WRC on 12 August 2016.

Following further submissions from both parties the complainant withdrew her complaint under the Redundancy Payments Acts, 1967 – 2014.

I find therefore that there is one complaint that requires a decision, that being the complaint under the Employment Equality Acts, 1998 – 2015.

The main facts are not in dispute here. The complainant commenced with the Community Employment (CE) scheme in December 1991 and attained the position of CE Supervisor, which position she held at the time of the termination of her employment.

An agreement in relation to her position as supervisor was drawn up and signed by both parties on 16 March 2001. No retirement age was specified in this document. Clause 3 of the agreement states:

It is agreed that M…. as Project Supervisor will have the Conditions of Employment applied as laid down in the FAS Operating Guidelines Manual.

(IN 2012 responsibility for the funding of these schemes passed from FAS to the Department of Social Protection).

The issue of the requirement for CE Supervisors to retire at state pension age was being actively pursued since 2014 and there was a Bill before the Oireachtas in relation to this matter. The complainant advised the Secretary of the respondent in November 2015 of her desire to remain in employment beyond her 66^th birthday which was on 23 December 2015. The Secretary wrote to the DSP on 8 December 2015 advising them of this request, referencing what he believed to be impending legislation in this regard and concluding the letter as follows:

M…. has informed us that she wishes to continue in our employment if she is legally entitled to do so. We wish to support her in this aim and we hope that she can continue in her present role where she has achieved such success.

No response was immediately forthcoming and a few days before her birthday the complainant contacted the DSP and was informed that her retirement date stood as 23 December 2015. This was confirmed in writing to the Secretary the following day.

While this process was in train the complainant had been contacting various politicians regarding the situation including the Minister for Social Protection. An official in that Department responded to the complainant on 18 January 2016 making the following points:

The CE Procedures Manual states that the DSP will not make funding available to a Sponsor for any Supervisor or Assistant Supervisor (or participant) who has reached State Pension Age.

The Terms and Conditions of Employment of such persons should include a clause to that effect.

If a Sponsor has its own funds to pay for the Supervisor once they have reached State Pension age, the DSP has no issue with them remaining in work.

The Bill before the Oireachtas was a Private Member’s Bill that was at Committee Stage but there was no guarantee that it would become law.

In the meantime the complainant’s employment was terminated on 23 December 2015 by the respondent in line with the instructions received by them from the DSP.

Section 6(1) of the Employment Equality Act, 1998, states:

For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where –

(a)    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) (in this Act referred to as the ‘discriminatory grounds’) which –

(i)                  exists,

(ii)                existed but no longer exists,

(iii)               may exist in the future, or

(iv)               is imputed to the person concerned

Subsection (2) of this section states:

As between any 2 persons, the discriminatory grounds (and the description of these grounds for the purposes of this Act) are –

               (f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”)

Section 34(4) of the Act states:

Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for retirement (whether voluntarily or compulsorily) of employees of any class or description of employees if –

(a)    it is objectively and reasonably justified by a legitimate aim, and

(b)    the means of achieving that aim are appropriate and necessary.

Section 85A of the Act sets out the burden of proof which applies to claims of discrimination and requires the complainant to establish, in the first instance, facts that he/she can rely on in asserting that he/she suffered discriminatory treatment. It is only when a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.

In the present case it was established that the respondent was more than satisfied with the complainant’s performance and would have been happy to retain her in employment.   The sole reason for the termination of the employment was the decision by the DSP to implement their policy as regards not funding the employment of CE supervisors who have reached State Pension age. I find therefore that the complainant has established a prima facie case of discrimination on the grounds of age which falls to the respondent to rebut.

The High Court in Donnellan v Minister for Justice stated that it is incumbent upon the member state to justify this difference in treatment on the grounds of age. It can do so under the provisions of Article 6 if it can establish that, within the context of national law, the differences in such treatment 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.”

The complainant argued that her contract of employment did not include a retirement age. The respondent pointed to the Community Employment Procedures Manual which governs all aspects of the functioning of the CE Employment Scheme and which was referenced in the employment agreement between the parties. Clause 3.3.3 of the Manual deals with eligibility and states that “supervisors should preferably be recruited from the Live Register and should be between 25 years of age and State Pension age as detailed below (the retirement age for all CE Supervisors is the age they can avail of the State Pension, therefore they can work on CE up to the working day before the relevant birthday)”. The Clause goes on to state that DSP will not make funding available for any Supervisor (or participant) who has reached retirement age.

The respondent in this case argues that the reason that the complainant’s employment terminated was due to the fact that the rules of the CE Scheme meant that the funding provided in relation to the complainant by the DSP would cease. The complainant pointed out that the DSP had stated that if the respondent could provide their own funding then the complainant could have been retained in employment. This statement, however, was contained in a letter written to the complainant after the dismissal and of which the respondent was unaware.   In addition the respondent was a relatively small scheme with 16 participants and struggled to raise voluntary funds from its participant base. The amount of funding required to retain the complainant in employment would be beyond the respondent’s capacity.

The European Court of Justice considered the matter of a compulsory retirement age in Palacios de la Villa v Cortefiel Servicios SA and found it to be lawful “where the measure, although based on age, is objectively and reasonably justified in the context of national law by a legitimate aim relating to employment policy and the labour market, and it is not apparent that the means put in place to achieve that aim of public interest are inappropriate or unnecessary for that purpose.”

The aim of CE schemes is to provide work experience and training opportunities for unemployed persons. It is policy that once a person on a CE scheme reaches State Pension age their participation in the scheme must cease. There are usually a finite number of places on a scheme and this policy allows for new participants to enter and avail of the benefits of the scheme. This policy is also applied to Supervisors for similar reasons and to provide promotional opportunities for members of CE schemes. The complainant argued that only 10% of participants advanced to supervisory positions in CE schemes but this figure is not insignificant. The Equality Tribunal has stated that “a legitimate employment policy means that a respondent is entitled to maintain a retirement age that ensures cohesion among all its employees. Having different rules of retirement for different employees may threaten the respondent employee’s cohesion and open up further areas of discrimination that may not be subject to an objective justification test.” (Doyle v ESB International Ltd.) Of course a person leaving a CE scheme in such circumstances then receives the State Pension.

It is understandable that the complainant wished to remain in employment. The campaign on behalf of CE Supervisors and the Private Member’s Bill no doubt heightened an expectation in that regard. Having regard to the totality of the evidence, however, I have concluded that the complainant’s termination of employment was due to the withdrawal of funding by the DSP. This withdrawal of funding was objectively justified by a legitimate aim relating to employment policy and the labour market. I therefore find that the respondent acted in compliance with Section 34(4) of the Act and that the application of a retirement age in this case was necessary, reasonable and proportionate. In consequence the complaint of discriminatory dismissal on the grounds of age fails.

In summary therefore:

Complaint No. CA-00005238-001

This complaint fails for the reasons set out above.

Complaint No. CA-00005238-002

Previously withdrawn

Complaint No. CA-00005238-003

Withdrawn at hearing

Discriminatory dismissal     age grounds