Complainant

Respondent

Parties

Susan Devereux

Permanent Defence Force    Other Ranks Representative Association

Complainant

Respondent

Anonymised Parties

Susan Devereux

Permanent Defence Force Other Ranks Representative   Association.

Representatives

William Egan William Egan &    Associates

Fergus O'Regan O'Regan Little    Solicitors

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-00010552-001

31/03/2017

The complainant alleges that the respondent has   discriminated against her grounds of age when they forced her to retire upon   reaching the age of sixty. The   complainant further alleges that she was victimised.

The Complainant took up   employment in 1992, some 25 years ago, with the Respondent, Permanent Defence Force Other Ranks   Representative Association ( PDFORA).   It is a statutory body set up under the 1990 Defence Amendment Act and   Defence Force Regulation (DFR) Section 6. The Complainant was employed in her   civilian capacity as an office administrator. At that time the Complainant   was issued with a contract which indicated that the normal retirement age was   60 years.

PDFORRA are serving members of   the Defence Forces who are seconded to PDFORRA and by reason of their elected   representative capacity and their enduring Contract of Employment with the   Defence Forces it happens that their term of office and service is continuous   with their period of employment under the Defence Acts, which provide for a   normal termination at the age of 60 if they were enlisted prior to 1994. The   retirement age for soldiers from 1994 onwards however is 56 and this   retirement age is rank dependant in other words it only applies to Enlisted   Personnel in the most senior of ranks.

The Complainant was only ever   provided with an unsigned and undated draft of her contract However the   complainant accepts that she did sign her contract of employment.

The Complainant submits that   the reference to a retirement age of 60 in paragraph 11 in the Contract of   Employment refers to what is normal for the Association, where in fact there   are two classes of employees, elected officers and civilians. The Complainant   believes that the Association never made any decision that the retirement of   civilians at age 60 was necessary for any valid purpose of the   Association. The reference to the age   60 was simply incorporated to reflect the special factors applicable to the   secondment of members of the Defence Forces under the Defence Acts which do   not apply to the Complainant.

Throughout the course of her   employment the Complainant was never issued with an updated and/or amended   contract despite the fact that her duties as office manager extended far   beyond those described in her job description.

The Complainant’s duties as   office administrator included the management and updating of the membership   database, preparing the financial accounts, monitoring of budgets and   assisting the Treasurer with weekly payments of cheques and electronic   banking, organising the association’s Annual Delegate Conference and Special   Delegate conference when required, covering/assisting members for various   officers when they were not available, organising and preparing ballots/   elections, organising the printing and distribution of the associations   magazine every quarter. The Complainant also liaised with the Accountants   each year and prepared the accounts for auditing, bringing the accounts to   trail balance stage prior to submitting them to the accountant. She prepared   financial reports for the National Executive for their monthly meetings, and   she liaised and monitored with officials from the Department of Defence on   the associations income and cross checking the association membership.

Changes took place in 1994 to   the law governing the retirement age of members of the Defence Forces. In the   case of enlisted personnel, persons who enlisted in the Permanent Defence   Force before 1 January 1994 may be permitted to continue in service up to the   age of 60 years. However, the retirement arrangements are now different for   persons who enlisted on or after 1 January 1994. Enlisted personnel in the   rank of sergeant may be permitted to continue in service up to the age of 60,   while those in higher ranks may continue in service up to the age of 56.

The rationale behind this early   retirement age reflects the fact that the Army age profile that the duties of   those within the Defence Forces which require a certain minimum level of   fitness which is essential to the role.   This logic however simply cannot apply to the Complainant or civilian   employee.

The changes in the law were   never raised with the Complainant and no amendments were ever made to her   contract to reflect these changes. The Complainant submits that this   indicative of fact that she was employed in her civilian capacity and was   never considered to be employed as a member of the Defence Forces. The   Complainant contends that while there may have been logic at that time to the   Respondent applying a mandatory retirement age to members of the Defence   Forces the same cannot be said for civilian employees.

After several years in her role   there had been incremental changes to the Complainant’s salary of the   Complainant which were ultimately linked to changes in the civil service. At   no time were these changes ever reflected in the contract of the Complainant   and/or was she issued with an updated contract.

In late Summer 2016 the Deputy   General Secretary, GG, who had just been elected General Secretary to take   over from GR when he retired in April 2017, initiated a conversation with the   complainant where he stated:

“you are going nowhere as I   need you because we have lost Simon (Deputy General Secretary) we are going to   lose Gerry (General Secretary) shortly and we cannot lose you as well”.

He made it clear that he needed   her expertise when the General Secretary retired. The Complainant did not   wish to leave and was satisfied that given the above assurances she would continue   in her employment after her sixtieth birthday.

In late August of 2016 the   President of PDFORRA informed the Complainant of a conversation he had with   the General Secretary, about a speech he was to make at the PDFORRA conference   in October 2016. GR had requested that   a few words were included about himself and the complainant leaving in 2017.

The Complainant was completely   shocked at this conversation and immediately went and spoke with GR.. She   advised him that she did not wish to leave and she made a request that her   contract would be extended beyond March 2017. The Complainant was advised   that her request would have to go through the National Executive. He further   stated that it is policy in PDFORRA that all staff must retire at 60 years of   age as soldiers have to retire at 60. The Complainant highlighted the fact   that she was not a soldier and that in any event there was another civilian   member of staff who had been working there for the last 3 years who was   working past 60. The Complainant was advised by him that this individual had   no contract. The Complainant stated that she would continue to work without a   contract and requested that the matter be put on the Agenda for the October   meeting after the Annual Delegate Conference.

The Complainant made several   requests for the matter to be put on the Agenda to the General Secretary, the   Deputy General Secretary, the Treasurer and other members of the National   Executive, the Complainant’s request was only place on the National Executive   Agenda for discussion on the 18th January 2017. It was clear that the matter   was not being prioritised which only compounded the Complainant’s anxiety. However   in September 2016, GG approached the   Complainant and again raised the issue of her retirement. During the course   of this conversation the Complainant was assured that she would continue to   be employed with the Respondent after she turned sixty on the 27th March   2017.

Following on from this   conversation the Complainant addressed the matter with KH, the Treasurer, who   also assured her that she would not be ceasing her employment on the 27th   March 2017. Owing to these assurances the Complainant had a legitimate   expectation that her employment would continue past her sixtieth birthday.

It came as a complete surprise   to the Complainant when she received correspondence dated the 19th January in   respect of the following:

1. Offering the Complainant limited further employment after the 1st April 2017 to provide 30/40 days of attendance/ telephone advice on PDFORRA work systems which she was familiar with;

2. A letter indicating that her retirement has been scheduled for the 27th March 2017.

While the Respondent contends   that it was envisioned that the Complainant might be retained beyond her   sixtieth birthday for a period of 40 days in order to assist with the   transition, the Complainant found this to be a humiliating proposal.

After 25 years of employment   the Complainant felt distressed and upset by the manner in which she was   treated by the Respondent and owing to the foregoing was certified unfit to   work due to work related stress.

During this period the   Complainant through her solicitor made a data protection request as per her   legal right dated the 24th January 2017.   This was not respected by the Respondent and the Complainant felt   intimidated by correspondence issued by the respondent.

On the 27th March 2017 the   Complainant was served with her certificate of cessation and p45 compulsory   retiring the Complainant and effectively dismissing her. At this stage the   Complainant reluctantly felt that she had no other recourse but to issue   legal proceedings. However in an effort to avoid prolonged litigation and   further anxiety and distress, the Complainant proposed mediation and/or   alternative dispute resolution however this offer was not accepted by her   employer.

The Respondent’s Replying   Statement

The Complainant submits that   the alleged grounds outlined in the Respondent’s statement justifying the   termination of the Complainant’s employment cannot be maintained where there   are other civilian employees working for the Respondent who are over the age   of sixty, irrespective of whether they are temporary or permanent. While the   Respondent has argued that extending the Complainant’s contract would give   rise to disharmony it is submitted that this is not a statement by the   Respondent of objective or reasonable justification for ceasing employment   nor has any legitimate aim been identified as justifying the Complainant’s   dismissal.

It is the position of the   Complainant and accepted by the Respondent that the Complainant has the   requisite knowledge, skill and experience to fulfil the role as office   administrator which she has held since 1992. The Complainant is aware that   this role still exists, however to the best of her knowledge there has been   no open competition for the role nor has there been any internal promotion.

The Respondent has set out a   number of legal arguments including a preliminary point in respect of   jurisdiction which the Complainant seeks to now respond to.

Jurisdiction

The Respondent asserts that the   language used in describing the nature of the employment relationship between   the Complainant and the Respondent and the description of the Complainant as   a fixed term employee with a Contract of Indefinite Duration, is ordinarily   language associated with the Protection of Employees (Fixed Term Work) Act   2003, and should not be before the subject matter before the WRC. It is   clearly the case the complaint made is pursuant to Section 77 of the Employment   Equality Act, 1998 as amended by the Equality (Miscellaneous Provisions) Act,   2015 and therefore the Complainant is not seeking a determination in relation   to the 2003 Act. However, it is submitted that the contractual relationship   goes to the factual background of the discrimination complaint before the WRC   and therefore is outlined herein.

Burden of Proof

The Respondent argues that the   burden of proof as set out by section 85A of the EEA has not been discharged   as the Complainant has failed to establish a prima facie case of   discrimination or victimisation. For this they rely on Brennan v St. Michaels   House EE19/1997 and Graham Anthony & Company Ltd. V Margetts EDA 038   where the Court has reiterated the position that the Complainant must adduce   other facts from which it may be inferred on the balance of probabilities   that discrimination occurred.   Furthermore the Respondent relies on AtersValpeters v Melbury   Development Limited EDA0917 in setting out the position that mere speculation   or assertions cannot be elevated to a factual basis.

The Complainant submits that it   is not mere speculation on the part of the Complainant in this instance that   she has been discriminated against but rather a matter of fact. Despite the   fact that the Complainant had been given assurances that she would be   employed past her sixtieth birthday she was compulsorily retired when she   reached the age of 60. Furthermore it is also a matter of fact that the   Complainant’s job continues to exist and despite being the most qualified person   for the role as accepted by the Respondent and seeking to remain in the role,   the Complainant has been served with a P45 Cessation Certificate on the 27th   March 2017 effectively dismissing her on the basis of her age. This was   despite assurances given to the Complainant earlier that year that her   employment would continue after her sixtieth birthday.

It has been accepted by the   Respondent that the Complainant was the most experienced person for the role   and the Respondent had urged the Complainant to consider a short extension to   facilitate a ‘transitional’ period the inference being that the Complainant   would be expected to train in another employee. However when the Complainant   refused to accede to this humiliating request and was certified unfit to work   the Respondent issued her cessation certificate compulsory retiring the   Complainant.

In light of the foregoing it is   submitted that the Complainant has established facts and a prime facie case   that the principle of equal treatment has not been applied to her. It is submitted that a prima facie case of   discrimination has been established which must be rebutted by the respondent   employer as set out in Richard Lett v Earagail Eisc Teo DEC E2014-076 in   which the Equality Tribunal held:

“The Respondent has submitted that the   complainant was forced to retire by reason of his having reached a particular   age which according to the Respondent is deemed to be the retirement age for   its employees. The Complainant refused to retire upon reaching this age and   was then compulsorily retired when he reached the age of 66. I am thus   satisfied from the totality of the evidence adduced here that the complainant   has established a prima facie case of discrimination on the grounds of age   which the respondent must now rebut.”

The Complainant’s Legal   Submissions:

Contract of Employment

At point 11 of the contract it   states that ‘the normal retirement age for employees of the Association is 60   years of age.’ Had the expression “normal” been excluded from the phraseology   used in point 11, the provision would have been a prescriptive provision   which implied that the retirement age was mandatory for all employees   including the complainant. The express   inclusion of the word “normal” contemplates that the provisions as are set   out in point 11 of the Contract are not and were not intended to be all   encompassing and that the point is open to exception and deviation.

The Complainant is not a member   of the Defence Forces and therefore not bound by the Defence Act, 1954 as   amended. There was no direct rule at that time that stated the retirement age   for civilian employees was 60. There   was no policy in the Constitution and no motion ever brought to set down a   policy at an AGM in respect of civilian employees.  It is submitted that the Respondent is   trying to apply a retroactive policy in respect of civilian employees which   simply did not exist at that time and/or does not exist to date.

In light of the foregoing it is   submitted that while the Complainant signed this contract the said document   does not represent the Complainant’s true terms and conditions of employment   particularly in light of the assurances she was given by the Deputy General   Secretary that she would continue to be employed after her sixtieth birthday.

Further and in the alternative   the mandatory retirement age which governs a member of the defence forces   cannot be applied to a civilian employee in the absence of an objective   justification.

Discriminatory Dismissal

The Respondent accepts that the   Complainant has been compulsory retired and argues on the basis of Doyle v   ESB International DEC-E2012-086 that this was done on the basis that the   Respondent did not want people working full time for it to be on different   contracts in terms of retirement age simple by reference to whether or not   they had previously worked for the Defence Forces as that could rise to   disharmony. Yet the Respondent accepts   at point 24 that there is at least one other individual who is working over   the age of 60 therefore discrediting the assertion that different contracts   would give rise to disharmony. This person is also a civilian employee.

Furthermore it is clear that   the basis for the Complainant’s dismissal was owing to the financial plans   made by the Respondent including the replacement of the Complainant by cheaper   staff. The documentation submitted outlines the Complainant’s projected   earnings. The table also provides an   estimate gross costs which would have been incurred by the Respondent had the   Complainant’s employment continued beyond the age of 60.

It is accepted by the   Respondent at point 25 of their statement that a discussion took place in   terms of the Complainant’s continued employment after the age of 60 and while   the Respondent contends that this was only in respect of an extension of her   employment for a period of time to ease a transition, owing to the   Complainant’s experience and knowledge, that was not in fact the case.

It was the very fact that the   Complainant had the requisite experience, knowledge and skill for the position,   that she understood that the assurance given by GG indicated without doubt that her employment   would continue after her sixtieth birthday.

Doyle v ESB International sets out that age discrimination can be   rebutted by objectively justifying such treatment however it is submitted   that no such justification has been established by the Respondent in this   instance for the discrimination as against the Complainant. In the event that   the Respondent seeks to now establish objectively justification of age   discrimination in this instance these submissions will now examine the   circumstances in which such objective justification can be established.

Mandatory Retirement ages and   Legitimate aim

In order to apply a mandatory   retirement age it must be justified within the meaning of section 34(a) of   the Acts (as amended) and Article 6 of the Directive 2000/78/EC “Establishing   a General Framework for Equal Treatment in Employment and Education” (the   Directive) and the means chosen by the employer must be appropriate and   necessary for achieving that aim.

The decision in Palacios de la   Villa v CortefielServicious in which national mandatory age retirement was   unsuccessfully challenged before the ECJ, is significant in this instance as   the ECJ definitively ruled that mandatory retirement ages are capable of   being discriminatory as they are capable of amounting to less favourable   treatment on the grounds of age and while there is a broad degree of   discretion permitted to the employer, the requirement must be objectively justified.

In The Incorporated Trustees of   the National Council on Aging (Age Concern) England v Secretary of State for   Business, Enterprise and Regulatory Reform   the National Council on Aging, challenged the legality of certain   legislative provisions within the UK that allowed the dismissal of employees   for retirement who were over the age of 65. The matter was forwarded to the   ECJ for preliminary ruling and it was held that Article 6(1) of Directive   2000/78 provided that such discrimination could be justified if it could be   ‘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.’

In O’Mahony v South West   Doctors on Call Ltd t/a “SouthDoc”   it   was held that the mandatory retirement of the complainant on reaching 65   years of age discriminated against him on the grounds of age. The case   involved the imposition of a mandatory retirement age of 65 without looking   at the employee in question. The court stated at 4.10:

“The respondent in this case   has provided no evidence to demonstrate why the chosen cut-off point of 65 is   appropriate and necessary especially when employees happily worked beyond it   prior to 2008. Nor did they show evidence of exploring a more proportionate   response to safety concerns e.g. sending employees over 65 for an annual   health check or as in Georgiev v Tehnickheski Unviersitet offer Mr O’Mahony a   fixed term contract of employment after his 65th birthday.[16] Although both   of these options would also have to be objectively justified as they choose   65 as an age-based criterion. However, they may be less assailable as they   are less absolute than the compulsory retirement age that the respondent   chose.”

It is submitted that while the   Respondent outlines why the mandatory retirement age has been applied to   members of the Defence Forces by stating it would give rise to disharmony but   it has failed to explain how this could occur with regard to civilian   employees. Furthermore, this argument cannot be substantiated in   circumstances where the Respondent continues to employ another civilian   employee past the age of sixty. Therefore the Respondent has failed to assess   the circumstances of the Complainant.

There is no legitimate aim   existing in this instance for the application of the mandatory retirement age   on a civilian employee that is applied to members of the Defence Forces nor   has one been forwarded by the Respondent, particularly in circumstances where   it has been recognised by the Respondent that the Complainant is the most   experienced and knowledgeable person for the job. Therefore it has to be   concluded that the only objective in her compulsory retirement was to replace   the Complainant with cheaper, younger staff.

Objective Justification

The respondent has sought to avail of the statutory   defence to such discrimination contained in section 34(4) of the Employment   Equality Act 1998, as amended, which provides as follows:

1. 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.

The subsection has been   interpreted by the European Court of Justice,   and the Equality Tribunal, to   mean that an employer is entitled to fix such mandatory retirement ages but   only where such a step (a) is objectively justified by reference to   employment policy, the labour market, and vocational training, and (b) is reasonable and necessary to   achieve those aims.

In Sweeney v Aer Lingus Teoranta DEC   E2012-135 the Tribunal was satisfied that a retirement age of 65 could be   implied into the complainant’s contract of employment but held that there was   no objective justification for same. The court stated at 4.5 that

“There can be no doubt that the   decision to retire someone at a particular age is a decision that is   influenced by that person's age. The Court of Justice of the European Union has   identified such decision as amounting to direct discrimination on a number of   occasions (e.g. Domnica Petersen v Berufungsausschuss fur Zahnärzte fűr den   Bezirk Westfalen-Lippe Case C-341/08; Deutche Lufthansa AG v Gertraud Kumpan   Case C-109/09 and others).”

In that case the court   dismissed the notion that a pension scheme could give rise to a legitimate   aim or purpose. At 4.10 the court stated:

“In the case to hand, the only   argument that has been put to me as regards justification in terms of a   "legitimate aim or purpose" is that "it would be perverse that   the independent trustee of the pension scheme could pay pension benefits from   a normal retirement date (under the scheme) while an employee continued to   draw his or her salary from the respondent."

However, it is well established   in both Community and Irish law that a pension entitlement does not   necessitate retirement (Case 262/84 Vera Mia Beets-Proper v Van Lanschot   Bankiers NV [1986] ECR 773; Case 152/84 Marshall v. Southampton and South   West Hampshire Area Health Authority [1986] ECR 723) & (Howell v JJ.   McCreery (Case No. UDA654/2007) January 3, 2008; Donegal County Council v   Porter (1993) E.L.R 101; Bannon v Two Way International Freight Services   Limited (Case No. UD127/2003). Accordingly, I find that, in this case, no   legitimate aim or purpose to justify discrimination has been put forward.   Therefore, I find that the complainant has established facts from which   discrimination may be inferred and that the onus to rebut that presumption   falls upon the respondent. In the circumstances of the extant case where   there is an absence of a justification, along the lines noted by McKechnie, J   above, I find that the complainant is entitled to succeed.”

Thus to the extent that the   Respondent seeks to rely upon a pension scheme, it is clear that the courts   do not accept this as a legitimate aim to necessitate retirement. In fact the   case of Saunders v CHC Ireland Ltd can   be used to support the view that there must clear and convincing reasons   which justify the mandatory retirement age in a given employment. In that   case, the Tribunal held that a mandatory retirement age of 55 was objectively   justified and proportionate where the Complainant in question was a winchman   engaged in strenuous physical work. The Tribunal was impressed by the   respondent’s evidence to the effect that many employees between the ages of   50 and 55 had suffered ill health on account of that work and that this was   justification for a relatively low retirement age.

In this instance there has been   no argument that there was an objective justification to the dismissal owing   to the workforce planning and having an age balanced workforce and   intergenerational fairness or sharing job opportunities amongst the   generations and this was never communicated to the Complainant. Nor is there   any evidence of internal promotion opportunities and to the best of the   Complainant’s knowledge the vacancy is still unfilled.

The termination of the   Complainant’s employment arises from the financial plans made by the   Respondent including the replacement of the Complainant by cheaper staff for   the purposes of reducing its overheads.   In this regard the schedule of earnings and cost of continued   employment referred to at Annex 1 illustrates the financial saving which the   Respondent has achieved as a result of the termination of the Complainant’s   contract of employment. In the absence   of any succession planning and the fact that the Complainant’s position has   not been filled, the evidence is to the effect that Respondent’s motivation   in terminating the Complainant’s employment contract is motivated on the   ground of financial cost. It is   settled and accepted law that financial cost does not amount to a justifiable   objective in employment for terminating contracts of employment.

However the Respondent has at   no stage indicated that this is in fact the case and indeed it is clear that   there is still funding for the role in circumstances whereby the vacancy is   due to be filled after the hearing of this case.

Having considered all objective   justifications that can be utilised in applying a mandatory retirement age it   is clear that the Respondent in this instance cannot avail of the defence of   objective justification.

Victimisation

Following receipt of   correspondence dated 19th January 2017 which indicated that the Complainant   would be compelled to mandatory retirement on the 27th March 2017 the   Complainant did not return to work owing to the stressful working environment   and she took sick leave. She then consulted with a solicitor.

On the 24th January 2017 under   a solicitor’s cover letter the Complainant made a data protection request as   per her legal right. The manner in   which the Respondent responded to this request caused the Complainant further   anxiety and distress.

By letter dated the 31st   January 2017 her solicitor issued further correspondence advising the   Respondent that their intention to compulsory dismiss the Complainant   amounted to discriminatory dismissal and further seeking mediation of the   matter. The Respondent did not accede to this request for mediation and   instead proceeded to issue the Complainant with her certificate of cessation   and p 45 on the 27th March 2017.

Despite a number of requests   made by the Complainant the Respondent has failed in its duty to provide the   Complainant with a reference, leaving a 25 year gap in her employment record,   this in itself has hindered her from finding employment suitable to her skill   set.

The Complainant felt humiliated   at the manner in which she was treated as it had been her intention to avoid   legal proceedings owing to her good relations with the Respondent prior to   her last year of employment.

It is submitted that the   behaviour of the Respondent both at the end of the Complainant’s employment   and post-employment constitutes victimisation of the Complainant as set out   by Section 74(2) of the Act.

The Complainant makes three   complaints viz. that she has been discriminated against by reason of her age;   that she has been the subject of victimisation and that she has been   dismissed for discriminatory reasons. She expands on this in her Statement   and also by reference to correspondence which she refers to in her Complaint   Form.

The Respondent disputes all   three complaints made by the Complainant.

Jurisdiction

At the outset, it is important   to identify the parameters of the jurisdiction invoked by the Complainant.   The claim is brought pursuant to s.77 of the EEA. On its own terms, s.77   identifies the forum for redress in relation to claims for, broadly,   discrimination and victimisation. Accordingly, insofar as reference is made   in the Complaint Form and in correspondence to the Complainant being a fixed   term employee and to a contract of indefinite duration, that is language more   usually associated with the Protection of Employees (Fixed-Term Work) Act   2003 (the “2003 Act”). The Complainant has not engaged the WRC’s jurisdiction   in that regard and, as such, the Respondent respectfully submits that the WRC   does not have jurisdiction on this complaint – insofar as the Complainant may   be asking it to do so - to make any determination in relation to the 2003   Act.

The complainant’s contract was a permanent contract, terminable on one   month’s notice. At clause 11 of the contract, under the heading “Retirement   Age”, it is provided that:

“The normal retirement age for   employees of the Association is 60 years.”

Although the contract states   that there is no Association Pension Scheme applicable to her employment, a   pension plan was subsequently agreed (between 1998-2001) with the   Complainant. Consistent with her contract, it was tailored to her retiring at   60. There were subsequent discussions between the parties in relation to   ensuring that her “pension pot” would be full by the time she reached age   sixty.

The Complainant was one of seven members of   staff working for the Respondent, as Office Administrator. She was one of   three permanent staff, with four staff on fixed term contracts.

The Respondent respectfully   submits that the Complainant has failed to establish a prima facie case of   discrimination or victimisation. Accordingly, the Respondent submits that   these aspects of the Complainant’s claim should be rejected in their   entirety. The claim of discriminatory dismissal must therefore also be rejected.

It is only if this initial   burden is discharged and the Adjudicator is satisfied that the facts as   established are of sufficient significance to raise a presumption of   discrimination, that the burden of proving that there was no infringement of   the principle of equal treatment passes to the Respondent. If the Complainant   does not discharge the initial probative burden required of her, her case   cannot succeed, which, it is submitted, is what should be concluded in this   case.

Age Discrimination

Section 28 of the EEA sets out   various discriminatory grounds including, at s.28(1)(e), in relation to age.

Section 34 makes provision for   savers and exceptions relating to, inter alia, age. Section 34(4)(as amended   by s.10 of the Equality (Miscellaneous Provisions) Act 2015) is of relevance   in the instant case and provides that:

“(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—

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

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

As such, it is not per se   discriminatory to fix different ages for the retirement of employees, save that there must be a legitimate aim   which objectively and reasonably justifies that and the means of achieving   that aim are appropriate and necessary. Although the subsection was amended   in 2015 to provide for the objective justification requirement, the   Respondent acknowledges that this requirement was in effect already   established in terms of how Equality Officers approached the previous version   of s.34.

In that regard, in Doyle v ESB   International, the Equality Officer   stated at para.4.2 that:

“It is clear that a decision to   retire a person at a given is age is a decision that is influenced by that   person's age. A number of Court of Justice decisions have identified such   decisions as direct discrimination. Such discrimination however can be   rebutted by objectively justifying such treatment and the Court has provided   a non-exhaustive list of such justifications. It is clear that direct   discrimination is also prohibited under the Acts. However, I find that section   34(4) provides for an exemption in circumstances where retirement on the   ground of a person's age is 'fixed'.”

Although each case necessarily   turns on its own facts, the approach of the Equality Officer in Doyle is   instructive, in that she stated that:

“4.11. I note that the   respondent does not have a written employment policy per se. I am however   satisfied on the full facts of this case that the respondent has a well   established practice of compulsorily retiring its employees to a pension when   they reach the age of 65 (employees can also elect to retire earlier). There   was no evidence to support that this practice has been varied in any   circumstances. It is clear that the respondent will, in certain exceptional   circumstances, re-engage over 65s on fixed term contracts for project   purposes. I am satisfied that the respondent had considered the availability   of such an extension for the complainant on his request. The request was   turned down because there were no exceptional circumstances that would have   justified such an extension. I find that the fact that the respondent has a   policy that enables over 65s to remain in certain circumstances clearly   tempers the existence of an absolute retirement age.”

2Members of the Defence Forces   are statutorily required, as other ranks (i.e. non Commissioned Officers) to   retire at 60 years of age. This is provided for in the Defence Act 1954 as   amended, Defence Force Regulation A.10 and Admin Instruction Part 10, Defence   Forces. The reasons for setting a   retirement age of 60 for people working for the Respondent was to ensure that   members of the Defence Forces would not take up full time jobs with the   Association to in some way enjoy longer term employment prospects than other   members of the Association, thereby potentially giving rise to significant   disharmony within the association. Equally, the Respondent did not want   people working full time for it (both ex Defence Forces members and   civilians) to be on different contracts in terms of retirement age simply by   reference to whether or not they had previously worked for the Defence Forces   as that could also give rise to disharmony.

Insofar as it is asserted that   there are two other employees of the Respondent who are working beyond 60,   the Respondent clearly cannot say with certainty to whom the Complainant is   referring, but anticipating who those individuals might be, one is in fact   not yet 60 and the circumstances relating to the other are specific to that   employee.

The Complainant also alleges   that GG confirmed that her retirement age was not 60 years and that she would   continue to be employed beyond 60. That is simply not correct. As set out is   the letter:

“In regard to your assertion by   an express and unambiguous assurance by the General Secretary elect of   PDFORRA, our client denies that any such assurance was given in that manner   being asserted. Our client instructions us that he was indeed approached by   your client who acknowledged her retirement being imminent from the   Association at 60 years of age and seeking to discuss same and possible   extension. As referred to later in your letter, it was and remains the wish   and desire of the Association that your client would continue to work for the   Association hence the further offer of employment after the 1st of April   2017.”

In short, the Complainant   acknowledged that she was to retire at 60. Insofar as GG referenced a   continuation with the Respondent, this was in the specific context of GR the   General Secretary, retiring. GG, the General Secretary Elect, wanted to keep   the Complainant in situ for a short, defined period while he took over as   General Secretary in order to ease that transition; in that regard, it is   important to bear in mind that there are only three permanent staff working   for the Respondent, with fours staff on fixed term contracts. As such,   someone with the Complainant’s experience and knowledge would be in a   position to provide important assistance during what might be termed the   transitional period. It was proposed that the Complainant would have been   provided with a fixed term contract in that regard.

Discriminatory Dismissal

As set out above, the   Complainant had a contract which provided for a retirement age of 60 and she   left the Respondent’s employment upon reaching 60. For the reasons set out   above, having such a retirement age is not discriminatory. As such, there is   no question of either discrimination, dismissal or discriminatory dismissal.

Moreover, as set out above, in   the letter sent on behalf of the Respondents, it was stated that

“As referred to later in your   letter, it was and remains the wish and desire of the Association that your   client would continue to work for the Association hence the further offer of   employment after the 1st of April 2017”

and

“...our client is happy for   your client to take up employment on a revised basis as per suggestion   already furnished. Our clients mean in no way to be pejorative or in any way   confrontational about the situation and remain open to finding a resolution   to this current unfortunate impasse involving your clients return to work or   some other facility afforded to her pending retirement and/or a further   revised temporary employment acknowledgements into the future.”

As set out above, it was   envisaged by GG that the Complainant   might be retained beyond her 60th birthday on a short / fixed term contract   in order to assist with the changeover in the position of General Secretary   of the Respondent.

Victimisation

Section 74(2) of the EEA deals   with victimisation and requires the following elements:

             The employee had taken a protected act

             The employee was subject to adverse treatment by the   employer

             The adverse treatment was in reaction to the protected   action having been taken

Victimisation can also occur   post employment.

The burden of proof set out in   s.85A of the 1998 Act requires the complainant to demonstrate a causal   connection between their taking of proceedings and the adverse treatment. It   is submitted that the Complainant does not satisfy this burden.

Useful guidance in relation to   victimisation in cases such as the instant one is provided in Bolger, Bruton   and Kimber Employment Equality Law, in   which they state that:

“These cases, which are sympathetic to employers’   dilemmas in dealing with employees or former employees who have taken   proceedings, therefore make it clear that it can be legitimate for employers   to take certain actions to preserve their position within litigation without   running the risk of such actions amounting to victimisation, provided the employer   acts honestly and responsibly. They acknowledge the reality that when   litigation emerges, the relationship between the employee and employer may   alter, as the parties are adversaries in litigation, and the treatment of an   employee may simply be the a reasonable response to the need to protect the   employer’s interest as a party to the litigation. Any distress or stress   caused to the employee by an employer taking such an action may not amount to   detriment. The cases of Khan and St. Helens which have developed the   so-called “benign motive” defence were expressly cited with approval by the   Labour Court in 2011.”

In the instant case, the   solicitors for the Respondent have engaged in correspondence with the   solicitors for the Complainant and in response to threatened litigation,   which emanated in correspondence from the Complainant’s solicitors. It was   entirely reasonable to respond to that correspondence, and to respond to the   subsequent, lengthy, correspondence, sent on behalf of the Complainant. The   Respondent must be allowed defend its position. To put it another way, it   would have been unreasonable not to allow the Respondent to respond in   correspondence and set out its position and, indeed, to set out its position   in relation to any legal aspects of the relationship between the parties.

At all times, the Respondent   has engaged through its solicitors with the solicitors for the Complainant.   Notably, the Complainant directly contacted GRof the Respondent in March and   April 2017 looking for a reference, rather than dealing with the Respondent   through her and their solicitors.

In the circumstances, it is   submitted that there is simply no evidence of victimisation against the   Complainant.8

This is a complaint wherein the complainant is seeking an   adjudication decision pursuant to Section 77 of the Employment Equality Act,   1998 as amended by the Equality ( Miscellaneous Provisions) Act, 2015 in   relation to an allegation of discriminatory dismissal on the grounds of Age   pursuant to Section 6(2)(f) and an   allegation of victimisation pursuant to Section 74 (2).

Legislation:

S6—(1) For the purposes of this Act, discrimination shall be taken to   occur where, on any of the grounds in subsection (2) (in this Act referred to   as “the discriminatory grounds”), one person is treated less favourably than   another is, has been or would be treated.

(2) As between any 2 persons, the discriminatory grounds (and the   descriptions of those 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”),

(3) Where—

(a) a person has attained the age of 65 years, or

(b) a person has not attained the age of 18 years,

then, subject to section 12 (3), treating that person more favourably   or less favourably than another (whatever that other person's age) shall not   be regarded as discrimination on the age ground.

Section 34 (4)

(a)      It   is objectively and reasonably justified by a legitimate aim and

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

“victimisation” shall be   construed in accordance with subsection (2).

(2) For the purposes of this Part, victimisation occurs where the   dismissal or other penalisation of the complainant was solely or mainly occasioned   by the complainant having, in good faith—

(a) sought redress under this Act or any enactment repealed by this   Act for discrimination or for a failure to comply with an equal remuneration   term or an equality clause (or a similar term or clause under any such   repealed enactment),

(b) opposed by lawful means an act which is unlawful under this Act   or which was unlawful under any such repealed enactment,

(c) given evidence in any criminal or other proceedings under this   Act or any such repealed enactment, or

(d) given notice of an intention to do anything within paragraphs (a)   to (c).

Jurisdiction:

I am satisfied that I have   jurisdiction to hear this complaint. The complaint is filed pursuant to   Section 77 of the 1998 act. No complaint is filed pursuant to the Protection   of Employees (Fixed Term Workers) Act, 2003. The respondent’s argument in   relation to jurisdiction is not well founded.

Burden of Proof:

Section 85A provides as follows -

“(1) Where in any proceedings   facts are established by or on behalf of a complainant from which it may be   presumed that there has been discrimination in relation to him or her, it is   for the respondent to prove the contrary.

(2) This section is without   prejudice to any other enactment or rule of law in relation to the burden of   proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings   arising from a reference of a matter by the Commission to the Director   General under section 85(1), facts are established by or on behalf of the   Commission from which it may be presumed that an action or a failure   mentioned in a paragraph of that provision has occurred, it is for the   respondent to prove the contrary.

(4) In this section “discrimination” includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which   section 9 applies of a provision which, by virtue of that section, is null   and void.

(5) The European Communities   (Burden of Proof in Gender Discrimination Cases) regulations 2001 (S.I. No.   337 of 2001), insofar as they related to proceedings under this Act, are   revoked.”

In Southern Healthboard v   Mitchell, the Labour Court considered   the requirements of a case of prima facie evidence:

“The first requirement is that   the claimant must establish facts from which it may be presumed that the   principle of equal treatment has not been applied to them. This indicates that a claimant must prove   on the balance of probabilities, the primary facts on which they rely in   seeking to raise a presumption of unlawful discrimination.

It is only if those primary facts   are established to the satisfaction of the Court and they are regarded by the   Court as being of sufficient significance to raise a presumption of   discrimination, that the onus shifts to the Respondent to prove that there is   no infringement of the principle of equal treatment.”

The decision of the Equality   Officer in the case of Brennan v St. Michaels House (as referred to in the case of A Worker v   An Insurance Company ) provides a   useful exposition of what is meant by a prima facie case, in the following   terms:

“In any dispute concerning   discrimination contrary to the terms of the Employment Equality Act, 1997,   the Equality Officer expects that the person making the allegation should   have prima facie evidence for his or her allegation and consider it   reasonable to dismiss as without proper foundation any allegation for which   no such evidence is presented. On the   other hand, where such evidence has been presented, the onus falls on the   employer concerned to give a convincing alternative explanation for his   actions. Where the employer concerned   fails to do so, the Equality Officer considers it is equally reasonable to   find in favour of the claimant. “Prima   facie” evidence means evidence which in the absence of any convincing   contradictory evidence by the employer would lead any reasonable person to   conclude that discrimination has occurred…”

Many of the facts are agreed   between the parties. It is agreed that the complainant had a contract of employment   dating back to 1992 and that over the years the terms and conditions of that   contract changed in line with technology and the law. It is agreed that the   complainant is a civilian employee and that her contract of employment states   that the “normal retirement age of 60”. It is further agreed that there are   two other civilian employees working for the respondent. One, a female who is   64 years old who has no contract of employment and the other, a male who is   57, has an extension clause inserted into his contract. The respondent states   that is only due to its incompetence that the 64 year old female does not have a contract of employment.

I am satisfied, based on the   submissions made by both parties, that civilian employees are not govern by   the Defence Acts. Only members of the   Defence Forces who are acting members or those members who are seconded to   PDFORA are governed by the requirements as set out in the Act. The normal   retirement age for soldier enlisted before 1994 is 60 and is 56 for those   enlisted after 1994. The respondent does not have a policy in relation to   civilian employees in their constitution. The objective reasoning behind the   relatively early retirement ages with respect to soldiers is due to the   physical demands the role requires. The same argument cannot be made in   relation to the respondent’s office based administrative civilian staff.

The respondent is in law   entitled to apply a mandatory retirement age, however it must be justified   within the meaning of Section 34 (a) and Article 6 of the Directive   2000/78/EC and the means chosen by the employer must be appropriate and   necessary for achieving that aim.

The respondent states that   reasoning behind the mandatory retirement age is primarily to ensure harmony within   the respondent in relation to the age of cessation of employment. How the   respondent can put that reasoning forward in light of the fact that one other   female civilian employee continues on in their employ some four years after   the alleged mandatory harmonising retirement age is a mystery, particularly   in light of the fact that there are only three civilian employees within   PDFORA. The respondent’s justification for keeping the other female civilian   employee on after the mandatory retirement age is that she doesn’t have a   contract of employment. She doesn’t have a contract of employment because   they “never got around to giving her   one”. In light of the sole purpose of the respondent’s existence, that   reasoning not only displays an element of incompetence but flies in the face   of the respondent’s sole objective, to ensure the rights of its members.

Furthermore, the only other   civilian employee, who is a retired Defence Forces member, has an extension   clause inserted into his contract thus placing him in a more favourable   position that the complainant.

The proposed extension of 40   days beyond the complainant’s 60^th birthday has no bearing on the   alleged discrimination one way or the other.

It is further suggested by the   respondent that the mandatory retirement age can be objectively justified on   financial grounds. The respondent   notes dated “ 10.01.2017 states “ PDFORA   has made financial plans based on Susan retiring at 60 yrs of age. The   financial plans factored in the retirement of staff, including Susan, and   their replacement of by cheaper staff, particularly where the pension is   concerned” Other than that note it would seem that this argument was not   at the fore of the respondent’s mind set at the material time. An   analysis of those saving was opened during the hearing. It is now well   established in law that financial costs do not and cannot amount to   justifiable objective. Even if it was, the argument fails due to the fact   that there is another employee who is 64 employed. The financial consequences/implication   in retaining her beyond her 60^th birthday was not explored by the   respondent. If finances were indeed a factor, I would have expected to see a   financial analysis on all civilian staff so that the financial impact could   be assessed. No such analysis was carried out. In fact, the now Secretary General didn’t   seem to know very much about her at all. He claimed he didn’t even know what   age she was.

I am satisfied based on the   evidence adduced and the documentation submitted that the complainant has   established a prima facia case of discrimination and the respondent has   failed to objectively justify its reasons for dismissing the complainant upon   her reaching the age of 60.

I am not satisfied that the   complainant was victimised. The complainant was furnished with the formal   notification in relation to the retirement on the 19^th January,   2017. It was after that date that she commenced proceedings. Everything that   happened thereafter was relatively normal with regard to correspondence   between the parties albeit a little hostile. I accept that victimisation can   occur post employment, however on the facts of this case, I find that the   legal threshold has not been met.

In all the circumstances of   this case, I find that re-instatement is the appropriate remedy. The   complainant is in receipt of a small pension. She is not eligible for the   State pension for another five years. The Act restricts the level of   compensation I can award and I find that those restriction do not allow me   adequately compensate her. It is for that reason that I find re-instatement   is the appropriate remedy.