ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003418

Complaint(s)/Dispute(s) for Resolution: A Worker v A Health Care Provider

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-00004236-001	04/05/2016

Date of Adjudication Hearing: 13/12/2016

Workplace Relations Commission Adjudication Officer: Peter Healy

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998, 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(s)/dispute(s).

Complainant’s Submission and Presentation:

The complainant has made no written submissions. At the hearing of this complaint the complainant declined the opportunity to have additional time to respond in writing to the written submissions presented by the respondent.

The complainant worked as household staff, carrying out a range of care activities in a facility that provides supports for persons with an intellectual disability. The chronology of the complainant’s employment record, the duties she carried out and the fact of a retirement age coming into effect are not in dispute by the parties. At the hearing of this complaint the complainant submitted that she was well able to do her job and that the existence of a retirement age was simply “not fair”

Respondent’s Submission and Presentation:

The respondent provides supports to persons with an intellectual disability. The Complainant commenced employment with the Respondent on the 30th May 2006 as Household Staff subject to the Terms and Conditions as set out in a the dated 30th May 2006. The final clause of this contract is titled “Staff Handbook” and states

“A copy of our Staff Handbook is enclosed and forms an integral part of your contract. It outlines further information pertaining to your terms and conditions of employment. Please read this booklet, should you have queries contact your line manager who will clarify them for you?”

The handbook clearly states that retirement age within the Respondent organization is 65 years of age. The Respondent submits that the Complainant’s role was a physically demanding role and involved washing floors three times daily, doing laundry in respect of six adults with high support needs, supporting the catering staff at mealtimes and cleaning spillages to name a few of her tasks.

The Respondent refers to and seeks to rely on the Equality Tribunal decision of Saunders v CHC Ireland Ltd, DEC-E2011-142 and Paul Doyle v ESB, DEC-E2012 and the ECJ decision in Wolf v Stadt Frankfurt am Main, C-229/08, where the ECJ held

“that the possession of especially high physical capabilities may be regarded as a genuine and determining occupational requirement with the meaning of Article 4(1) of the Directive for carrying on the occupation of a person in the fire service”

The Respondent submits that it has established objective justification for their retirement age of 65 years including but not limited to the following:

To protect the health and safety of the Claimant

The Claimant’s role was a physically demanding role and involved washing floors three times daily, doing laundry in respect of six adults with high support needs, supporting the catering staff at mealtimes and cleaning spillages to name a few of her tasks.

Workforce and succession planning and promotion and inter-generational fairness also requires an established and enforced normal retirement age.

In the case of Donnellan v The Minister for Justice, Equality and Law Reform, [2008] IEHC 467 the High Court dismissed the claim of Assistant Commissioner Donnellan that the retirement age of 60 for his rank was discriminatory. In this case, the State was successful in arguing that a retirement age was necessary to ensure that talented young people could move through the Garda ranks and that to restore the retirement age to 65 would create a blockage at senior level. While Justice McKechnie had found that Assistant Commissioner Donnellan had been treated less favourably, he found that the State had satisfied the objective justification including the provision that the measures taken were appropriate (Appendix 8 – Case).

As a HSE funded organisation the Respondent was the subject of a recruitment moratorium for a number of years. As a result of this moratorium the age profile of the permanent staff members was high and the Respondent wanted to re-balance this by continuing to enforce its normal retirement age along with being able to re-open the recruitment process in 2016 when the moratorium came to an end.

Dignity in the workplace – for the protection of the dignity of employees against future performance management and the avoidance of difficult and stressful HR processes.

This point was accepted in the case of Hornfeldt v Posten Meddelande, C/2012/421, (Appendix 9) where the ECJ held in favour of the Swedish Government’s aim of avoiding terminations of contracts “in situations humiliating for workers by reason of their advanced age”.

While it is accepted that the Complainant did not demonstrate any physical difficulties with the role it was not seen as dignified to allow her to continue working in such a physical role indefinitely.

It is the position of the Respondent that the company compulsory retirement age of 65 years is permitted by both Section 34(4) and 37(2) of the Employment Equality Acts.

In this regard, the Respondent submits that it has set out three clear objective grounds to meet the requirements of Section 34 (4) of the Act as set out in part 5 of the submission with the necessary supporting case law.

Decision:

Section 41(4) 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.

Section 79(6) 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 the Act.

Issues for Decision:

The issue for decision by me is whether or not the respondent discriminated against the complainant on grounds of age, in terms of section 6 of the Acts and contrary to section 8 of those Acts in relation to dismissal. Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ...".

Having heard the evidence from both parties, I am satisfied that the respondent had established a retirement age for and the complainant was subject to it. The complainant gave evidence that she was aware of the letter of the 30th May 2006 and the corresponding handbook. Having heard all of the details of this complaint I am satisfied that the complainant was at all relevant times aware of the established retirement age. Therefore, the Complainant has established a prima facia case of discrimination

Objective Justification

In the instant case the respondent has sought to objectively justify a retirement under the following three headings

Health and Safety

It is agreed by both parties that the complainant’s job was very physically demanding and in an environment with many health and safety risks. I am satisfied that the respondent has obtained independent occupational health advice in assessing the risks arising related to the role of the complainant.

Workforce Planning

At the hearing of this complaint the HR manager for the respondent gave direct evidence of the size and age profile of the workforce. I am satisfied that the details set out by the respondent above and particularly the effects of the recruitment moratorium have skewed the workforce demographic. For this reason alone I find the respondents retirement policy serves a legitimate purpose and is proportionate.

Hypothetical comparator

The complainant has requested that I give particular consideration to a seamstress who works for the respondent and is over the retirement age. Having examined the situation of that comparator I am satisfied that she is not a suitable comparator as she carried out an entirely different function.

I find that the respondent has objectively justified the established retirement age, for health and safety, work planning and dignity in the workplace reasons. Therefor all aspects of the complainant must fail.

Legislation involved and requirements of legislation:

Section 34(4) of the Employment Equality Acts 1998 – 2016, states

“(4) Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or 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 37 (2) of the Employment Equality Acts 1998 – 2016, states

“(2) For the purposes of this Part a difference of treatment which is based on a characteristic related to any of the discriminatory grounds (except the gender ground) shall not constitute discrimination where, by reason of the particular occupational activities concerned or of the context in which they are carried out—

(a) the characteristic constitutes a genuine and determining occupational requirement, and

(b) the objective is legitimate and the requirement proportionate.”

Decision:

Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the age ground has been established, and that the respondent has rebutted that presumption. In the circumstances outlined above, this complaint fails.

Dated: 20^th January 2017