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-00008980-001

05/01/2017

The Complainant was employed as a Box Office Cashier,   commencing with the Respondent on 30^th April 2007 until the   termination of her employment on 29^th July 2016 on reaching the   age of sixty-five. She was paid on average €220 gross per week and worked 20   hours a week.   She claims that she was discriminated against by the Respondent on the   grounds of age and gender, and that she was treated unlawfully by being   dismissed for discriminatory reasons.

The Complainant   signed a contract of employment dated 23/02/2010. That contract contains a   provision that the normal retirement age (‘NRA’) was set at age sixty-five.  On 26^th May 2016 the direct manager of the Complainant reminded   her of her upcoming birthday and her prospective retirement. In June 2016,   the Complainant queried the basis of the Respondent’s decision to retire her   on attaining the age of 65 given that other staff members were not subject to   the application of the aforementioned retirement age. The Respondent informed   her that they were “implementing the   retirement terms as per your contract, and adhering to what is the wider   company policy”. The Respondent indicated that they could consider   offering casual work on a fixed term basis. However, the Respondent did not   identify how was the offer objectively justified. The Complainant declined   that offer.  SIPTU wrote to the Respondent on 6^th October 2016 seeking   clarification. The Respondent replied on 6^th December 2016 setting   out what they deemed to be the objective justification for the retirement age   of 65. No explanation as to why differing retirement ages for other staff had   been applied or continued to be applicable was provided.

In relation to   discrimination on the grounds of age the Complainant told the hearing that   the decision to terminate her employment was directly related to her age. At   the time of her dismissal other employees had been and were being treated   more beneficially in relation to the application of NRA. Ms R was employed   until 2014 when she retired aged 69. Mr K is still in employment at the age   of 79. The Complainant submits that these are clear examples that there are   differing and more beneficial retirement requirements applicable within the   Respondent’s employment.   At the time of the Complainant’s retirement the Respondent did not objectively   justify her age of retirement as per S. 34(4) of the Act.

In relation to   discrimination on the grounds of gender, the Complainant submits that it is   obvious in comparison to Mr K, given his gender, that the concept of equal   treatment between the genders has not been adhered to by the Respondent when   dismissing the Complainant. She argues that at the time of her dismissal she   was entitled to the application of gender equality in comparison to her male   colleague.

At the time of   dismissal, the Complainant was fit, well and capable of carrying out the   functions and duties associated with her job.     The State had at the time of the Complainant’s dismissal increased the State   pension age to 66 and required the Complainant to remain available for work until   at least age 66.

The legal submission on   her behalf relied on section 6(1) of the Employment Equality Act, 1998 and     the Equality (Miscellaneous Provisions) Act, 2015. The latter amends   the former Act in respect of retirement age in requiring retirement on   grounds of age to be ‘objectively and reasonably justified by a legitimate   aim’, and requiring the means of achieving that aim to be ‘appropriate and   necessary’.

The Respondent submits that they came under control of a   separate legal entity in 2012. In preparation for the taking over a range of   corporate governance and best practice audits were undertaken. As a result,   formal contracts were entered into with all staff. The Complainant’s contract   was signed and dated by her on the 23^rd February 2010. In   addition, a detailed set of policies and procedures (including clear view of   the Respondent in respect of discrimination) were adopted and introduced   through an Employee Handbook. Both documents refer to the normal retirement   age as being 65. At no time did the Complainant challenge, dispute or seek   further clarity of the NRA.

In the circumstances, it was at all times clear to the   Complainant that her employment would terminate upon her reaching the   retirement age of 65. The Respondent inquired with the Complainant her   interest in coming back to working occasionally during busy periods. The   Complainant subsequently declined. Only then the Respondent started a   recruitment process with regard to the Box Office.

In June 2016, the Complainant queried the application of   the NRA and the Respondent replied that they were “implementing the retirement terms as per your contract, and adhering   to what is the wider company policy”. The Complainant raised no further issue and attended in good humour a retirement   lunch to honour her service.

In October 2016, the Respondent received correspondence   from SIPTU challenging the retirement as a breach of the 1998 Act. The   Respondent replied setting out the contractual basis for the NRA, the exceptional   basis that applied in respect of a previous extension for an employee   remaining in employment post the age of 65 and the objective justification   underpinning the NRA.

The Respondent relies on Section 34(4) of the Act, which   provides a statutory basis for the age-related derogations as permitted by   Art. 6 of the Directive 2000/78/EC. The Respondent submits that the validity of   Section 34(4) of the Act had been upheld in numerous national domestic and   European cases and cited extensive case law in that regard.

The Respondent never sought to adopt an absolutist   approach to the application of the NRA and has applied a very limited number   of extensions where exceptional circumstance arose, including extension   offered to the Complainant.

In respect of the comparators the Respondent submits that   Ms R worked with the Respondent from 1998 and retired voluntarily in May 2014   aged 69. Ms R being a female cannot be a comparator within the meaning of the   1998 Act in respect of alleged gender discrimination. Ms R was already 65   when the ownership of the Respondent changed. Therefore, at the point of Ms R   reaching 65, the Respondent held only a letter of offer from 1998, which made   no mention of a NRA. Ms R’s retirement was addressed. However, given the   weaker contractual position and her having already worked beyond age 65 it   had to be approached in different manner.

Mr K is a Front of House Supervisor. He may be the only   member in the organisation with whom the patrons interact with so their   interactions are of prime importance. The Respondent outlined specific in   depth experience and qualifications of Mr K. Mr K and the Complainant are not   engaged in like work and they do not share either like roles or offer like   experience to the role of Mr K. In retaining Mr K on past the NRA, the   Respondent recognised that he is uniquely positioned to fulfil that   longstanding role within Front of House. Mr K commenced his employment with   the Respondent in 2002 and was 72 when the ownership of the Respondent   changed.

However, with exception of the two employees in question,   the NRA is applicable across the organisation. Since 2010 two employees   retired at the age of 65, the Complainant and the Box Office Manager.

The   issue for decision by me now is, whether or not the Respondent dismissed   the Complainant in circumstances amounting to discrimination on grounds of   age and gender, in terms of section 6 of the Employment Equality Acts,   1998-2015 and contrary to section 8 of those Acts when it terminated her   employment.

Section   6(1) of the Act provides that discrimination shall be taken to occur where   “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)...

Section   6(2) (a) of the Act defines the discriminatory ground of gender as follows – “as between any two persons… (a) that   one is a woman and the other is a man…”  Section 6(2)(f) defines the discriminatory ground   of age as follows – “as between any two persons … that they are of   different ages, but subject to Section (3) … “

Section   85A of the Act sets out the burden of proof which applies in a claim of   discrimination. It requires the Complainant to establish, in the first   instance, facts from which it may be presumed that there has been   discrimination. If she succeeds in doing so, then, and only then, is it for   the Respondent to prove the contrary.

In   evaluating the evidence before me, I must first consider whether the   Complainant has established a prima   facie case pursuant to Section 85A of the Acts. The Labour Court has   stated in Melbury Developments Limited and Valpeters (EDA0917):

Section   85A of the Act provided for the allocation of the probative burden in cases   within its ambit. This requires that the complainant must first establish   facts from which discrimination may be inferred. While those facts will vary   from case to and there is no closed category of facts which can be relied   upon. All that is required is that they be of sufficient significance to   raise a presumption of discrimination. However, they must be established as   facts on credible evidence. Mere speculation or assertions, unsupported by   evidence, cannot be elevated to a factual basis upon which an inference of   discrimination can be drawn. Section 85A places the burden of establish the   primary facts fairly and squarely on the complainant and the language of this   provision admits of no exceptions to that evidential rule.

The Complainant submits that she was forced to   retire due to the company’s mandatory retirement age of 65. She was aware of   the NRA of 65 as outlined in her contract, which she has signed. It is   clear that the imposition of mandatory retirement age as such is   discriminatory under the Act. That being so, it inevitably must follow that   the contract introduced in 2010, which had the effect of terminating the   Complainant’s employment at age 65, constitutes discrimination within the   meaning of the Act. The Complainants   contends that two members of staff were permitted to work past the age of 65.   In respect of discrimination on the grounds of gender, the Complainant submitted   that Mr K was permitted to work past 65 and remain in employment aged 79.

Having heard the evidence from both parties, I am   satisfied that the Complainant has established a prima facie case of   discrimination on the grounds of age and gender and that it is for the   Respondent to rebut that inference of discrimination.

In terms of discrimination on the ground of age it must be   determined whether such discrimination is saved by one or more of the   justifications under the Directive 2000/78/EC. Consequently, it is incumbent   upon the Respondent to justify the difference of treatment on the grounds of   age. The Respondent can do so under the provision of Section 34(4) of the Act   if they can establish that the difference in such treatment is   (i) objectively and reasonably   justified by a legitimate aim, and  (ii) the means of achieving that aim are appropriate and necessary

Thus, in   considering whether a decision to impose compulsory retirement or to offer a   new fixed term contract is objectively justifiable, the following questions   must be asked:

•   Do   the measures seek to achieve a legitimate aim?
•   Is   the aim legitimate in the particular circumstance of the business?
•   Are   the means of achieving the aim proportionate?

Authority   for this is Donnellan v The Minister for Justice, Equality and Law Reform and Others [2008] IEHC467 which sets   out guidance for determining how an objective justification advanced in   respect of a retirement age is to be assessed, where McKechnie, J. states:

“Any   discrimination with regards to age must, as put by that Directive, serve a   legitimate aim or purpose, and the means taken to achieve that purpose must   be appropriate and should go no further than is necessary, i.e. they should   be proportionate. [2008] IECHC 467 Paragraph 126

This   has been followed by Saunders v CHC DEC E2011-142,   Paul Doyle v ESB International DEC E2012-086,   Rosanna Nolan v Quality Hotel DEC E2012-042,   O’Neill v Fairview Motors DEC E2012- 093, Patrick   Dunican and Thomas Spain v Offaly Civil Defence DEC   E2013-027, McPhillips v ISS Facility Services DEC   E2013-042.

The Respondent submits that it has set a   mandatory retirement age of 65 which is objectively justifiable to ensure “efficient   planning and departure of staff with the company, it encourages an age   balance of staff- in particular within the box office which has limited   number of employees and is a desirable place to work, it allows for mixes of   ages to access positions within the company, permits an exchange of   experience amongst staff, encourages recruitment and promotion of younger   staff, permits efficient personnel management and avoids disputes over   fitness to work of staff members”.

I accept the Respondent’s assertion that it is   not unreasonable for the employers to have a legitimate interest in workforce   planning. In Donnellan, while dealing with the objective justification   defense the High Court concluded that the aims of ensuring motivation and   dynamism through increased prospect of promotion etc. were both rational and   legitimate. Similarly, in Doyle v ESBI [2013] 24 ELR 34 the Equality   Officer was prepared to accept that the respondent had objective reasons for   the retirement age of 65, which included, amongst others, the need to   establish an age structure among its younger and older employees in order to   encourage the recruitment and promotion or younger people within the   organisation, and the facilitation of good personnel management.

The Respondent submits that it has set a   mandatory retirement age of 65 for all employees in 2010. Since 2010 two   employees retired at this age, the Complainant and the Box Office Manager   (her replacement is 41 years of age, recruited externally).   I note that the Respondent advised the hearing that there were exceptional   circumstances related to contractual obligation in respect of the two   comparators, as outlined above. The Respondent submits also that, due to Mr   K’s role and experience in the area he became a “character” and an inherent   part of the unique experience for the patrons.   I also note the Respondent contention that the Complainant could not be   considered in in the same circumstance as Ms R and Mr K given that she was   well aware of the company NRA as it was unambiguously stated in her contract   and it is also clearly stated in the Respondent’s Handbook which was issued   at the same time. The Complainant doesn’t dispute that she has signed the   contract containing the retirement clause. She also confirms that she has   seen the Handbook in the Box Office approximately 4-5 years prior to her   retirement. However, she maintains that she has never familiarised herself   with its content and that the Handbook “disappeared” from the Box Office   around the time of her retirement.     I note that the Respondent relies on McCarthy v HSE [2010] ELR165 and   advised the hearing that the Complainant was “on notice”, she was reminded in   advance that her retirement is approaching. She was also offered a fixed-term   contract post retirement in line with Section 6(3) of the Act, which she   declined. I note also that no objective justification was given to the   Complainant in respect of the offer.

From the totality of the evidence adduced I am   not satisfied that the Respondent operated a universally applied compulsory   retirement age of 65 or that the policy of applying a mandatory retirement   age satisfies a legitimate aim and that the means it has put in place to   achieve that aim are appropriate and necessary within the meaning of the   Directive 2000/78/EC.

The Respondent applies their own retirement age   requirement inconsistently. The exceptions made undermine the policy applied.   From the evidence offered it is not clear whether the Respondent actually   established legitimate retirement age or do they have ad hoc approach to   retirement age. This would appear to support the position   that the Respondent could set various retirement ages for members of the   organisation.

I   note the difference in contractual arrangements between the Comparators and   the Complainant. I note that the Complainant has consented to the retirement   age by signing the contract in 2010 which somewhat undermines her position.   Nonetheless, taking the Respondent’s aims such as age balance, access for   mixes of ages to positions within the company, exchange of experience,   recruitment and promotion of younger staff, avoidance of disputes over   fitness to work etc. I find that the means to achieve them are not balanced.   On the one hand the Respondent imposes the retirement age of 65 on the   Complainant. On the other hand, they allow two members of staff to work well   beyond that age. In fact, the Respondent submitted that they ‘have not   adopted a one size fits all approach to retirement age’ and they have applied   a limited number of extensions ‘where exceptional circumstances arose’. In   fact, the Complainant was offered a fixed-term contract post-retirement with   no objective justification offered and it is unclear to me what ‘exceptional   circumstances’ arose in this instance.  I accept that, in exceptional circumstance some delay in retirement would be   justified. However, I find that circumstances before me cannot be regarded as   ‘exceptional’.

For   the reasons set out above, I find that the Complainant was dismissed by the   Respondent by reason of her age, and that this dismissal constituted an act   of discrimination within the meaning of Section 6(2)(f) of the Act.

In   relation to discrimination on the grounds of gender I note the difference in   contractual arrangements between Mr K and the Complainant. I note the   Respondent’s position in relation to Mr K’s deep experience with regard to   theatrical groups as well as health and safety. However, I do not find it   persuasive that Mr K’s skill set is so unique that it would not be possible   for the Respondent to find or indeed train a replacement. The Respondent   themselves emphasized the importance of “efficient   planning and departure of staff with the company”. Yet, it seems that not much effort has been put   into ensuring that a robust succession plan is in place.

Taking   the above into consideration I am satisfied that the Complainant was treated   less favourably than her male colleague who remains in employment with the Respondent   at the age of 79.

Naming of the   parties

I am of the view that it would be more appropriate to   anonymise the parties due to the facts and sensitivities surrounding the   details of this case.

In   reaching my decision, I have taken into account all the submissions, written   and oral that were made to me. Having investigated the above complaint, I   hereby make the following decision:    I find the complaint under the Employment Equality Acts 1998-2015 well   founded. I find that the Complainant was the subject of a discriminatory   termination of her employment on the grounds of her age and gender.   I direct the Respondent to pay the Complainant €8,800.00, which is approximately   nine months’ salary as a compensation for the breach of her rights under the   Acts.

Retirement age, discriminatory dismissal, age, gender