ADJUDICATION OFFICER DECISION
Correction Order issued pursuant to
Section 88 of the employment Equality Acts, 1998-2015
Adjudication Reference: ADJ-00005241
Parties:
Anonymised PartiesA ReceptionistA Packaging Company
Complaint:
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-00007387-001 30/09/2016 Date of Adjudication Hearing: 30/08/2017 Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015,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.
Background:
The complainant was employed as a Secretary-Receptionist, commencing with the respondent on May 27th 2003 until the termination of her employment on September 9th 2016 on reaching the age of sixty-six. She was paid €2,200 per month.
Summary of Complainant’s Case:
The complainant had a contract of employment given to her on commencing with the respondent. She exhibited a copy and it contains no reference to a retirement age. In 2012 she, and a number of other co-workers (but not all) were approached and invited to sign a document titled ‘Individual Employee Contract Details’. It set out a number of details about her employment. It was described as an ‘updated version of the written contract and terms of employment that were previously issued to you’. It was said to incorporate the terms and conditions that applied to her as an individual, the Employee Handbook, ‘covering rules and other matters that apply’ and ‘Company procedures’. She gave direct evidence to the effect that at no point during this process in 2012 was the issue of retirement age discussed with her. In or around February 2016 she approached one of her managers saying she did not wish to retire and he told her that the company’s retirement age was sixty-six years of age. She took immediate issue with this and made it clear that she did not wish to retire at that age. He told her she would ‘be going’. He said he would pursue the issue and having heard nothing she approached him again in May. On this occasion he made reference to the ‘contract signed in May 2012’ and referred to the provisions in the company handbook. The complainant confirmed to the manager that she did not have a copy of the Handbook and he offered to get her a copy. He did not do so. They proceeded to the office of the General Manager who again referred to the 2012 ‘contract’ changes and insisted that she would be ‘going’. He also referred to the handbook but did not produce a copy. On July 22nd 2016 she received a letter from the company General Manager. It referred to the ‘Company Policy on retirement age which is as set out in the updated company handbook issued to all employees in June 2012.’ It went on the state that retirement age as ’66 years, or as soon thereafter as practicable.’ It also confirmed to the complainant that the writer was aware that she did not wish to retire, but that he saw no reason to make an exception to the policy. He confirmed that her retirement date would be September 2nd 2016. The complainant instructed a solicitor who wrote to the company. The General Manager confirmed to the complainant that he had received the letter and told her that he proposed to ignore it and that she ‘would get nowhere’. The legal submission on her behalf relied on section 6(1) of the Employment Equality Acts 1998-2004 and the Equality (Miscellaneous Provisions) Act 2015. This 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’.
Summary of Respondent’s Case:
The respondent did not attend the hearing. No explanation was offered for the failure to do so. The respondent had previously engaged with the WRC in respect of an application for a postponement made by him, which was granted. The notice of the resumed hearing was sent to the same address as previous correspondence.
Findings and Conclusions:
As submitted by the complainant’s legal representative the relevant law is in section 6(1) of the Employment Equality Acts 1998-2004 and the Equality (Miscellaneous Provisions) Act 2015. This 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’. This confirmed the widely accepted jurisprudence in respect of the application of the prohibition of discrimination at the point of retirement on age grounds. The respondent did not attend the hearing and therefor no evidence was offered in rebuttal of the complainant’s case. Her own evidence was credible and I accept it. It is clear that she put the respondent fully on notice that she did not wish to voluntarily terminate her employment on reaching sixty six years of age as set out above. This was reinforced by correspondence from her solicitor, which again according to her evidence the respondent confirmed having received, but intended to ignore. The purported alteration in her contract was, to put it no more strongly, seriously lacking in transparency and a legally pointless device. In its letter to her confirming the termination of her employment reference was made to the Company policy on retirement age as set out in the ‘updated company handbook’. The complainant had never seen the ‘updated’ handbook at any time prior to the events which gave rise to the current complaint and despite telling her manager this and asking for it on several occasions in the lead up to her termination she was still not provided with a copy. She was told, or it was implied at one stage that her retirement was justified on the basis of this ‘amended’ contract. She signed a document stating; ‘I have received an updated Employee contract document from the company’. In fact she had not and while it was somewhat unwise to have signed to the effect that she had the company cannot rely on this as consent to a change in her contract of employment as fundamental as the insertion of a retirement age where none had previously existed, and where her explicit consent to such a change had neither been sought nor secured. The onus rests squarely on an employer to approach such change transparently and seek informed consent to such a material change. It is hard to avoid speculating that, perhaps on advice, the respondent unilaterally inserted a retirement age into the company handbook in 2012 but neglected to secure the complainant’s consent to the change. It therefore has no legal validity. It is very clear, therefore that the respondent not only failed to meet any of the requirements of the legislation but demonstrated a haughty disregard for them and proceeded as if they did not exist. His apparent hubris about the complainant’s rights on receipt of the letter from her solicitor provide evidence of this; he told her when he received the solicitor’s letter that he proposed to ignore it and that she ‘would get nowhere’. At the very least this represents a degree of imprudence which, in this instance, will prove costly. I find that the respondent failed to justify the termination on any of the grounds proved for in section 6(1) of the Employment Equality Acts 1998-2004 and the Equality (Miscellaneous Provisions) Act 2015. The retirement on grounds of age was not ‘objectively and reasonably justified by a legitimate aim’ and neither therefore could the means of achieving that aim to be ‘appropriate and necessary’. The complaint succeeds. Section 82 of the Employment Equality Act provides for an award up to 104 weeks salary. In making my award of compensation I take account of the complainant’s salary of approximately €25,000 per year but also of the conduct of her employer; notably the purported change in her contract of employment which was unacceptable and lacked transparency, as was the failure to provide her with a copy.
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act. I uphold complaint CA-00007387-001 and award the complainant €25,000; this being approximately one year’s salary.
Dated: 04/10/2017 Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words: Discrimination, retirement age, justification.
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00005241
Complaint:
|
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 |
CA-00007387-001 | 30/09/2016 |
Date of Adjudication Hearing: 30/08/2017
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, 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.
Background:
The complainant was employed as a Secretary-Receptionist, commencing with the respondent on May 27th 2003 until the termination of her employment on September 9th 2016 on reaching the age of sixty-six. She was paid €2,200 per month. |
Summary of Complainant’s Case:
The complainant had a contract of employment given to her on commencing with the respondent. She exhibited a copy and it contains no reference to a retirement age. In 2012 she, and a number of other co-workers (but not all) were approached and invited to sign a document titled ‘Individual Employee Contract Details’. It set out a number of details about her employment. It was described as an ‘updated version of the written contract and terms of employment that were previously issued to you’. It was said to incorporate the terms and conditions that applied to her as an individual, the Employee Handbook, ‘covering rules and other matters that apply’ and ‘Company procedures’. She gave direct evidence to the effect that at no point during this process in 2012 was the issue of retirement age discussed with her. In or around February 2016 she approached one of her managers saying she did not wish to retire and he told her that the company’s retirement age was sixty-six years of age. She took immediate issue with this and made it clear that she did not wish to retire at that age. He told her she would ‘be going’. He said he would pursue the issue and having heard nothing she approached him again in May. On this occasion he made reference to the ‘contract signed in May 2012’ and referred to the provisions in the company handbook. The complainant confirmed to the manager that she did not have a copy of the Handbook and he offered to get her a copy. He did not do so. They proceeded to the office of the General Manager who again referred to the 2012 ‘contract’ changes and insisted that she would be ‘going’. He also referred to the handbook but did not produce a copy. On July 22nd 2016 she received a letter from the company General Manager. It referred to the ‘Company Policy on retirement age which is as set out in the updated company handbook issued to all employees in June 2012.’ It went on the state that retirement age as ’66 years, or as soon thereafter as practicable.’ It also confirmed to the complainant that the writer was aware that she did not wish to retire, but that he saw no reason to make an exception to the policy. He confirmed that her retirement date would be September 2nd 2016. The complainant instructed a solicitor who wrote to the company. The General Manager confirmed to the complainant that he had received the letter and told her that he proposed to ignore it and that she ‘would get nowhere’. The legal submission on her behalf relied on section 6(1) of the Employment Equality Acts 1998-2004 and the Equality (Miscellaneous Provisions) Act 2015. This 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’. |
Summary of Respondent’s Case:
The respondent did not attend the hearing. No explanation was offered for the failure to do so. The respondent had previously engaged with the WRC in respect of an application for a postponement made by him, which was granted. The notice of the resumed hearing was sent to the same address as previous correspondence. |
Findings and Conclusions:
As submitted by the complainant’s legal representative the relevant law is in section 6(1) of the Employment Equality Acts 1998-2004 and the Equality (Miscellaneous Provisions) Act 2015. This 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’. This confirmed the widely accepted jurisprudence in respect of the application of the prohibition of discrimination at the point of retirement on age grounds. The respondent did not attend the hearing and therefor no evidence was offered in rebuttal of the complainant’s case. Her own evidence was credible and I accept it. It is clear that she put the respondent fully on notice that she did not wish to voluntarily terminate her employment on reaching sixty six years of age as set out above. This was reinforced by correspondence from her solicitor, which again according to her evidence the respondent confirmed having received, but intended to ignore. The purported alteration in her contract was, to put it no more strongly, seriously lacking in transparency and a legally pointless device. In its letter to her confirming the termination of her employment reference was made to the Company policy on retirement age as set out in the ‘updated company handbook’. The complainant had never seen the ‘updated’ handbook at any time prior to the events which gave rise to the current complaint and despite telling her manager this and asking for it on several occasions in the lead up to her termination she was still not provided with a copy. She was told, or it was implied at one stage that her retirement was justified on the basis of this ‘amended’ contract. She signed a document stating; ‘I have received an updated Employee contract document from the company’. In fact she had not and while it was somewhat unwise to have signed to the effect that she had the company cannot rely on this as consent to a change in her contract of employment as fundamental as the insertion of a retirement age where none had previously existed, and where her explicit consent to such a change had neither been sought nor secured. The onus rests squarely on an employer to approach such change transparently and seek informed consent to such a material change. It is hard to avoid speculating that, perhaps on advice, the respondent unilaterally inserted a retirement age into the company handbook in 2012 but neglected to secure the complainant’s consent to the change. It therefore has no legal validity. It is very clear, therefore that the respondent not only failed to meet any of the requirements of the legislation but demonstrated a haughty disregard for them and proceeded as if they did not exist. His apparent hubris about the complainant’s rights on receipt of the letter from her solicitor provide evidence of this; he told her when he received the solicitor’s letter that he proposed to ignore it and that she ‘would get nowhere’. At the very least this represents a degree of imprudence which, in this instance, will prove costly. I find that the respondent failed to justify the termination on any of the grounds proved for in section 6(1) of the Employment Equality Acts 1998-2004 and the Equality (Miscellaneous Provisions) Act 2015. The retirement on grounds of age was not ‘objectively and reasonably justified by a legitimate aim’ and neither therefore could the means of achieving that aim to be ‘appropriate and necessary’. The complaint succeeds. Section 82 of the Employment Equality Act provides for an award up to 104 weeks salary. In making my award of compensation I take account of the complainant’s salary of approximately €25,000 per year but also of the conduct of her employer; notably the purported change in her contract of employment which was unacceptable and lacked transparency, as was the failure to provide her with a copy. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I uphold complaint CA-00007387-001 and award the complainant €25,000; this being approximately one year’s salary. |
Dated: 04/10/2017
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Discrimination, retirement age, justification. |