ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00005391
Anonymised Parties
A Bookkeeper
A Retail Business
Representatives
Lars Asmussen B.L. instructed by Sean Ormonde & Co. Solicitors
Purcell Kennedy Solicitors
Complaints:
Act
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
CA-00007582-001
12/10/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
CA-00007582-002
12/10/2016
Date of Adjudication Hearing: 28/07/2017
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant had been employed as a Book keeper since 2004 and in 2016 her employment was terminated on reaching sixty six years of age. She was paid €315.96 per week.
She did not have a written contract of employment and also says that she was never given a statutory statement of her terms of employment.
Summary of Complainant’s Case:
The complainant described in her submission a number of engagements with her employer between August 2015 and August 2016 in the course of which she was given to understand that it was expected that she would retire, initially in reaching her sixty fifth birthday, and then her sixty sixth birthday.
She made it clear that she had no contractual or other agreement that she would retire and that she wished to continue working. She rejected the offer of re-engagement on the basis of a two year contract because such a contract given to a co-worker on a previous occasion proved to be unreliable.
She submits that mandatory retirement on the basis of age is prima facie discriminatory, unless it can be objectively and reasonably justified by a legitimate aim. Once a prima facie case is made out the burden of proof passes to the respondent.
The complainant relied on Donnellan v The Minister for Justice, Equality and Law Reform [2008] IEHC 467 where McKechnie J. held that termination of an employee’s employment solely on the basis of reaching a particular age constituted direct discrimination contrary to the Acts.
There was, in fact, neither an implied term in the complainant’s contract nor any custom and practise to which the respondent could point to support its assertion that retirement at sixty five was provided for.
In respect of the complaint under the Terms of Employment (Information Act) 1994 the complainant says that she was never given a statement in compliance with the Act.
Summary of Respondent’s Case:
The respondent is a family business which at the material time only had a very small number of employees (two or three).
It believed that it had an oral contract with the complainant and that an implied term of the complainant’s contract of employment was that she would retire on reaching the age of sixty five. The termination of the employment was effected on the basis of its understanding of this implied term, and not on the grounds of age.
Only one previous employee had reached that age while still in the respondent’s employment and he was facilitated with an extension of one year.
Further, a pension was created for the complainant in 2004 which clearly foresaw retirement at sixty-five.
The respondent genuinely
believed that such a retirement age was necessary for the management of its business but it had been willing to offer a fixed term extension.
Regarding the statutory statement of terms of employment, the respondent did try to introduce contracts of employment but there was resistance to these from its employees, including the complainant; (in earlier times up to fourteen had been employed).
Findings and Conclusions:
While noting the apparent difficulty over the proposed contracts of employment the statutory obligation to comply with the Terms of Employment (Information) Act 1994 is entirely separate to the negotiation and agreement of contracts of employment.
While it is common to refer to them interchangeably it is not, or at least not always, legally accurate to do so unless the statutory statement has been adopted by the parties as the contract of employment in addition to the statutory obligation to simply provide it.
While it is good practise to generate some evidence of the employee having received the statement by means of a signature, it is no more that that; i.e. evidence of it having been received. There is no requirement on the employee to sign in order for the employer to comply with the obligations imposed by the Act. Failure to secure agreement of the employee will not be a defence to a failure to provide it.
In this case it was accepted that no statement had been provided.
In respect of the complaint under the Employment Equality Acts the, for the most part undisputed evidence, points to a termination on the grounds of the complainant’s age.
All of the engagements between them in the year leading up to her actual termination support this. There was no evidence of any justification along the lines outlined in the complainant’s submission above.
I find that the termination was prima facie discriminatory and that the respondent failed to provide objective, or any justification of it.
In fact, the only justification offered was the respondent’s somewhat vague, anachronistic and unlawful view that it had the right to terminate employment at sixty five because it was traditional to do so. It seems have held this view honestly, in that it held the complainant in high regard as an employee and there was no element of any reflection on her conduct or competence.
However, this provides no defence whatsoever and is essentially a plea of ‘ignorance of the law’.
The attitude of bemused indignation that a person might have to be retained in their employment up to an indefinite age gave a good indication of how far such, in fairness widely held views, are off the mark in respect to the law relating to retirement age.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I uphold Complaint CA-00007852-001 under the Employment Equality Acts 1998-2015 and find that the complainant was the subject of a discriminatory termination of her employment on the grounds of her age. I award her €12,000.00 for the breach of her rights under the Acts.
I also uphold CA-00007852-002 and award her two weeks pay (approximately) in the amount of €630.00
Dated: 21st August 2017
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Terms of employment, Discriminatory dismissal; age grounds.