ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00004755

Parties:

Anonymised PartiesA Worker -v- Health Service Provider

Complaint(s):

ActComplaint/Dispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00006380-001 10/08/2016 Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00006380-002 10/08/2016 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00006380-003 10/08/2016 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00006380-004 10/08/2016 The complaint under the Unfair Dismissals Act was not pursued.

Date of Adjudication Hearing: 27/06/2017

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015,{ and/or Section 7 of the Terms of Employment (Information) Act 1994 and/or Section 27 of the Organisation of Working Time Act 1997 and/or Section 79 of the Employment Equality Acts, 1998 - 2015, ] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s). Terms of Employment Information Act 1994

Summary of Complainant’s Case:

The claimant had been employed as a Care Assistant with the respondent from the 18th.June 2005 to the 25th.June 2016.It was submitted that the claimant’s contract failed to comply with the provisions of Section 3 of the Act by omitting to refer to the title and nature of the claimant’s job; references to REA’s or collective agreements; rate or method of calculation of pay; references to the National Minimum Wage Act 2000, pay intervals,; hours of work and overtime; references to sick pay and pension schemes and the matter of notice; particulars of the times and duration of rest breaks .It was further submitted that the respondent failed to notify the claimant in accordance with Section 5 when her working hours were changed in 2015.

Summary of Respondent’s Case:

The respondent submitted that these matters were never raised by the claimant while in the employment and that they were not pursued under the grievance procedure. It was submitted that the claimant received a copy of her contract of employment on the 28th.June 2005 and a copy of same was submitted into evidence. The respondent asked that the complaint be struck out as it had not been pursued while the claimant worked for the respondent.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act. In her complaint form the claimant failed to complain regarding the alleged breach of Section 5 and accordingly I do not have jurisdiction to investigate this element of the complaint. I have reviewed the evidence presented by the parties and examined the contract furnished to the claimant in June 2005.I find the document is deficient with respect to the following omissions – rate of pay ;references to the National Minimum Wage Act 2000,pay intervals; terms and conditions relating to hours of work including overtime; terms and conditions relating to incapacity for work and pensions and references to collective agreements. Accordingly , I am upholding the complaint and require the respondent pay the claimant €700 compensation within 42 days of the date of this decision. Organisation of Working Time Act 1997

Summary of Complainant’s Case:

It was submitted that throughout the claimant’s employment and in particular over the last 6 months of her employment , the claimant was deprived of rest breaks and did not consistently get a 30 minute break within 6 hours of commencing work.It was submitted that the claimant was not covered by the exemptions set out in the Act and if it was determined that she was , the respondent was obliged to provide equivalent rest breaks and had failed to do so. It was submitted that there was no proper procedures in place to ensure the claimant availed of rest breaks and that it was only after the claimant raised this subject following termination of her employment that some procedures were put in place. It was submitted that the respondent was prohibited from shifting its obligation onto the claimant requiring the worker to notify the respondent if they had not received their breaks. It was advanced that the respondent had failed to furnish working time records and that accordingly the evidential burden passes to the respondent. It was submitted that the claimant first became aware of her legal rest entitlements at the time of termination of her employment and raised the complaint at the first available opportunity. Since the commencement of her employment the claimant worked the graveyard shifts from 11.00p.m. to 9.00a.m. 2 nights per week and was prohibited from leaving the working premises for any reason .It was contended that the claimant was constantly at the beck and call of the requirements of patients and nursing colleagues and that rest breaks when she could take them were of inadequate duration , intermittent and did not comply with the provisions of the Act. It was advanced that as the claimant had to be available the so called rest periods were not rest periods at all. In her direct evidence , the claimant stated that she was never allowed leave the premises. Her colleague and Shop Steward submitted that the workers were never told they could or could not leave the premises. It was denied that the claimant was being vexatious and it was submitted that the claimant’s failure to utilise internal procedures did not invalidate the complaint.

Summary of Respondent’s Case:

It was submitted that the claimant had never raised the matter of rest breaks while employed by the respondent and had never been pursued under the company grievance procedure .It was contended that there was no restriction on leaving the premises and that the workforce – including the claimant had been represented by a trade union official from SIPTU. It was submitted that the claimant had failed to produce detail of any specific breaches – it was contended that the claimant had received her rest breaks and that her hours of work were consistent over the years.The respondent requested that the complaint be struck out.

Decision:

Summary of Complainant’s Case:

It was submitted that the claimant’s contract of employment stated that the “ normal retirement age for employees is 65 years” and that the claimant’s employment was terminated on age grounds when she was 68 years of age .On reaching 65 on the 19th.May2013, the respondent failed to apply the contract retirement age and continued to employ her as heretofore. It was contended that this deviation set out a precedent and custom undermining the basis upon which the contractual compulsory age may be amended or enforced. It was submitted that the contractual age then became null and void , or in the alternative , the respondent unilaterally changed the claimant’s contract of employment without her consent or approval. This constituted a change to the claimant’s terms and conditions and were not notified to her in accordance with the Terms of Employment (Information) Act 1994. It was submitted that the respondent , without consultation , informed the claimant by letter on the 24th.Nov. 2015 that her employment would be terminated on the grounds of age on the 25th.June 2016.It was submitted that this letter demonstrates that age was the sole reason for the claimant’s forced retirement. It was advanced that as the respondent had failed to apply the contract age to the claimant and other employees , it clearly was not the custom and practise in the organisation. It was submitted that the claimant had been erroneously advised that there was an unwritten agreement with SIPTU in June 2015 allowing for the retirement of persons over 65 within the next 12 months. Siptu denied the existence of any such agreement – if any such agreement had been reached the claimant had not been consulted and would not have consented to such an agreement. It was submitted that the respondent’s decision to arbitrarily terminate the claimant’s employment on the grounds of age constituted discriminatory treatment - this was detrimentally affecting the claimant whose financial situation was predicated on her continued employment with the respondent. Given the age profile of her similar status colleagues, the claimant had no expectation of being retired before her 70th.birthday. It was submitted that when the CEO was replaced in early 2015 , a number of changes were proposed – including the enforcement of employment contracts containing a 65 years retirement age provision for employees < 65 and an adhoc determination of retirement age for employees over 65.It was submitted that the claimant had an unblemished work record and had never been informed /advised that her age was having any adverse effect on her work or on the respondent’s business. The claimant’s appeal against her compulsory retirement on the 25th.June 2016 failed. It was accepted that since the 1st.Jan 2016 , employers can set a mandatory retirement age provided it is objectively justified by a legitimate aim and the means of achieving that are appropriate and necessary. It was submitted that the respondents actions failed to meet the legal requirement to set a mandatory retirement age – The claimant was informed that her employment would be terminated on the grounds of age on the 24th.Nov.2015 prior to the enactment of the Equality (Miscellaneous Provisions )Act , 2015. The legal requirements did not apply to the claimant as her contract retirement age had expired on the 19th.May 2013 and as the initial retirement age had been agreed between the parties, the respondent was legally mandated to consult with the claimant to mutually agree another retirement age under her contract of employment. By nominating the new compulsory retirement date , the respondent acted unlawfully amounting to discrimination on the grounds of age. As the respondent failed to enforce the claimant’s retirement age and failed to enter into a fixed term contract post the expiration of her contract retirement age , it had lost the right or legal entitlement to unilaterally set another mandatory retirement age. It was further submitted that the decision taken by the respondent was not objectively justified by a legitimate aim as the respondent erroneously stated in correspondence to the claimant dated 11.April 2016 , that there was an unwritten agreement between SIPTU and the respondent allowing for the retirement of persons over 65 within the following months. It was submitted that no other reason was advised to the claimant as to why her employer was terminating her employment on the grounds of age in June 2016. It was advanced that the claimant’s retirement age should have been at least 70 given that no other employee of a similar grade was forced to retire under that age with some working until 76 years of age. It was contended that the respondent did not have genuine objective reasons for insisting on different compulsory retirement ages for similar status employee positions; the respondent did not objectively justify the claimant’s retirement age or justify the adhoc retirement ages .It was advanced that the respondent’s discriminatory treatment was not proportionate as it did not serve a legitimate aim or purpose and the means to achieve that was not appropriate and went further than necessary. It was submitted that there was never a question of the respondent loosing valuable staff as promotion did not arise in the claimant’s position. It was argued that the claimant’s current stress related illness was a direct result of her working environment since April 2015 and the discriminatory treatment on compulsorily retiring her on the grounds of age. A chronology of the correspondences exchanged between the parties was presented. A detailed reference of the authorities relied upon was presented during the submission. In a post hearing submission, it was contended that the facts in the instant case were distinguishable from EDA 158.It was emphasised that the claimant was arguing that the termination of her employment by way of retirement was unlawful/discriminatory as the respondent failed to apply the contractual age of 65 to the claimant and continued to employ her for over 3 years post her 65th.birthday and then terminated her employment when she was 68 years while employing comparable employees well beyond that age. It was contended that while the court found no evidence of less favourable treatment in the Keane case , the claimant had proffered such evidence – the respondent had employed some employees up to the age of 76 years and employed comparable employees up to the age of 70 years .It was advanced that “ as the respondent failed to apply the contract retirement age , or to apply any known specific retirement age , to the complainant and/or to other employees ( including comparators ) in the organisation then it is clearly not the custom or practise followed by the respondent” .It was submitted that the contractual retirement age was null and void as and from the claimant’s 65th.birthday and the claimant should have been advised unambiguously of a new retirement in line with the retirement ages of comparators. It was submitted that the main difference between the 2 cases was that Ms.Keanes employment was lawfully terminated while the claimant’s was unlawfully terminated on the grounds of age. The provisions of EDA 1710 were invoked in support of their submission that no retirement age may be implied under the “Officious bystander test “ or under the “custom and practise test” ; that the contractual retirement age became null and void as and from the claimant’s 65th.birthday and thereafter no contractual retirement age existed ; the respondent had ample opportunity to enter into a fresh employment contract but did not do so –“ it cannot be accepted therefore that the claimant had ample knowledge of a retirement age and therefore her termination on the grounds of age was illegal”l.It was argued that the respondent had failed to prove the existence of an implied contractual retirement age as it was unknown to the claimant and to employees (including comparators) what such an age was given - “ the officious bystander test, or custom and practise did not apply ;there was no consistency of employees including comparators having retired at a specific age or there was no occupational pension scheme from a certain age that was apparent to all employees ; the claimant was not informed of same under the Terms of Employment (Information) Act 1994; subsequent to 19th.May 2013 , there was no express or implied contractual retirement age in existence requiring the mandatory retirement of the claimant ; the respondent’s notification to the claimant of termination on the grounds of age was insufficient notification to be regarded as having been implied or incorporated on any of the accepted tests. It was contended that objective justification test was not relevant as the respondent had failed to satisfy the first legal test by being unable to establish the existence of a contractual retirement clause. It was reiterated that the respondent retired 3 comparators in April and June 2016 on reaching their 70th.birthday and discriminately terminated the claimant’s employment at the age of 68 in June 2016 notwithstanding that there was never a question as to her health and fitness to continue with her employment. The provisions of EDA 1710 – Connaught Airport and John Glavey -were invoked in support of the claimant’s arguments and specific reference was made to the Court finding that there has to be evidence that a policy is promulgated in such a manner that the employees to whom it applies either knew or ought to have known of its existence. It was advanced that the Glavey case can be interpreted as applying a 2 part legal test – 1. The existence of a contractual retirement age and it was submitted that the respondent had failed to prove the existence of an implied contractual retirement age as it was unknown to the claimant given that custom and practise did not apply ; there was no consistency of employees having retired at a specific age and there was not an occupational pension scheme from a certain age that was apparent to all employees. It was further submitted that the respondent’s letter of the 24th.Nov.2015 was insufficient notification to be regarded as having been implied and 2. Objective justification – it was submitted that as in the Glavey case , this was not relevant as the respondent had failed to satisfy the first legal test by being unable to establish the existence of a contractual retirement clause.

Summary of Respondent’s Case:

It was submitted that following the review of operations after the introduction of the new management structure n the company in May 2015 , it emerged that the contractual retirement age had not been enforced and nine staff who had passed the normal retirement age continued to work for the company. The respondent engaged with SIPTU and advised that going forward the 65year retirement age would apply ; it was submitted that the union was also informed that the 9 staff who had passed the 65years would be phased out over a number of months. It was advanced that SIPTU had asked the phasing out period to be extended over a longer period from 6-9months and this was conceded. The company set out the retirement dates for the affected staff. The manager in charge verbally informed the affected staff and it was confirmed in writing to the claimant on the 24th.Nov. 2015.The claimant challenged the decision and pursued a grievance in relation to her proposed retirement. The respondent set out the ensuing exchanges and meetings that took place – it was submitted that the claimant was advised at a meeting on the 15th.Feb.2016 that when it became apparent that the 65year retirement age was not being enforced , it was agreed with SIPTU that the affected staff would be afforded a period of notice to cushion their entry to retirement. It was contended that the claimant declared at the meeting “ I will agree to retire on the 26th.June 2016 on receiving appropriate compensation” – 1 year’s salary was sought. A HR consultant was engaged to process the next stage of the grievance but the grievance was not upheld. It was submitted that 8 of the 9 affected staff had accepted the company’s position. Since the matter had come to light the company abided by the contractual retirement age of 65.It was advanced that SIPTU had no issue with the company enforcing the contractual retirement age subject to the facilitation of those over 65 with a period of time to cushion their entry to retirement. It was submitted that an orderly exit was put in place and the claimant was the last care assistant and the second last impacted employee to exit the organisation. It was submitted that the union , having obtained the extension to cushion the retirement of affected staff , raised no further objection while the process of retiring the 9 employees was in progress.It was contended that no savings accrued as a result of the exit process and all replacement staff had been appointed under the same terms and conditions . It was submitted that the retirement age afforded to the claimant was consistent with what took place with the other 8 employees.It was submitted that the claimant was not discriminated against or treated less favourably than her other 8 colleagues .It was contended that the fact that 8 of the 9 affected staff had no issue with the leave date indicated the success of the overall initiative. The provisions of Section 34(4) were invoked - “It shall not constitute discrimination on age ground to fix different ages for retirement ..)” It was submitted that the mandatory retirement age was objectively justified as the grade comprised safety critical workers and “ as such it is necessary that they are in a position to perform their roles safely to secure the protection of health and safety of patients” .It was contended that mandatory retirement ages promote better access to employment by means of better distribution of work between generations and as such allows for efficient workforce planning “ (in particular terms of successful planning and recruitment drives)”. It was contended that the fact that the company allowed 9 staff to remain beyond their 65th.birthday by reason of inadvertence , did not give the claimant a legitimate expectation that she could continue indefinitely. It was argued that the safety of patients was a legitimate and proportionate aim requiring retirement at age 65.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act. I have reviewed the evidence presented at the hearing and considered the post hearing submissions furnished on behalf of the claimant – I note no post hearing submissions were received from the respondent. I note that no arguments were advanced by either party on estoppel – the claimant is relying significantly on the earlier failure by the employer to apply the 65 year age limit which it is claimed precludes them from applying it at a later date. It is not disputed that the respondent did not universally apply a retirement age of 65 years.On reaching 65 on the 19th.May 2013,the respondent did not apply the contractual retirement age and continued to employ her as heretofore. The claimant submitted that she had a legitimate expectation of working up to at least 70 years of age and submitted details of comparators who had been afforded that opportunity.I found the claimant’s submission that the respondent had numerous opportunities to include a defined retirement age by way of a fixed term contract but failed to do so to be persuasive in determining whether there was a retirement age in existence. While the respondent was relying on a collective agreement to justify their retirement of the claimant , I note that no documentary evidence of a collective agreement was advanced and I accept the claimant’s contention – who was accompanied to the hearing by her SIPTU Shop Steward – that she was unaware of any such collective agreement. I have concluded that by failing to apply the contractual retirement age to the claimant and 8 of her colleagues and by then retiring the claimant on age grounds in June 2016 , the claimant has presented a prima facie case of discrimination on age grounds. I found the claimant’s submission that her case was distinguishable from EDA 158 to be compelling. The claimant had submitted evidence of the respondent having employed staff up to 76 years of age and had employed comparable employees to the age of 70 years.In reality the respondent did not apply a known specific retirement age. Consequently , I accept the claimant did not have ample knowledge of a specific retirement age.While it was advanced by the claimant’s side that the objective justification test was not relevant as the respondent had been unable to establish the existence of a contractual retirement age , I did consider the respondent’s defence of justification on the basis that the grade comprised safety critical workers , the matter of intergenerational fairness and efficient workforce planning .In light of the claimant’s unblemished work record , the absence of any complaints or concerns regarding the matter of capacity and the fact that claimant did not work in a promotional grade , I found the respondent’s arguments to be unconvincing. In all of the circumstances I find that the compulsory retirement of the claimant on age grounds constituted discriminatory treatment on the grounds of age and I require the respondent to pay the claimant €17,420 compensation within 42 days of the date of this decision.

Dated: 20/12/17 Workplace Relations Commission

Adjudication Officer: Emer O'Shea