Complainant

Respondent

Anonymised Parties

A Clerical Officer

A County Council

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-00013300-001

24/08/2017

The complainant was employed by the Respondent as a Clerical Officer from 27th August 2001. Her employment ceased by virtue of her reaching her 65th Birthday in June 2017. The complaint relates to alleged discrimination on the age ground. The complainant also alleges that she was subject to a discriminatory dismissal.

The complainant confirmed that she was due to retire on her 65th Birthday in June 2017. The complainant stated that she sought to remain on in employment until her 66th birthday in June 2018 and sent an email to this effect to a Senior Executive Officer within the HR Department on 3rd November 2016. The complainant stated that she wished to extend her retirement date by one year on the basis that she would not become entitled to the State Contributory Pension until June 2018 and the payment of Jobseekers Benefit at a lower rate of payment payable for only nine months would result in a severe drop in income which would not suit her personal circumstances. The complainant also sought to stay in employment as she stated she is an active person and interested in remaining productive in the workforce for an additional year. The complainant asked the respondent to consider even a reduced working week for the period in question. The complainant stated that her request was refused and her employment ceased with effect from 30th June 2017.

The complainant contends that the respondent failed to provide objective reasons for applying a retirement age of 65 to her employment. The complainant contends that she was discriminated against by the respondent by virtue of her age and was subject to a discriminatory dismissal.

The complainant referred to a Circular from the Department of Housing, Planning and Local Government (Circular Letter S.4 of 2017) which put in place temporary measures for staff who had reached the established retirement age of 65 years. The circular provided that those staff members could remain in employment for an additional year from their 65th birthday to their 66th birthday due to the changes in the payment of the State Contributory Pension. The complainant stated that the effective date of the circular was 5th December 2017 so a comparable employee who reached their 65th birthday after that date would be considered for remaining in employment for an additional year. However, the complainant by virtue of the fact that she reached 65 years of age approximately six months earlier was not permitted to remain in employment. The complainant stated that the actions of the respondent amounted to discrimination.

The complainant is seeking compensation in relation to her complaint.

The respondent contends that the complainant has not established a prima facie case of discrimination in relation to her complaints. The respondent cited the case of Minaguchi v Winesport Lakeshore Restaurant DEC-E2002-202 in support of its position. The respondent stated that the complainant has failed to show that she meets the test of establishing that a prima facie case of discrimination, i.e. that she is covered by the relevant discriminatory ground, that she has been subject to the specific treatment and that this treatment is less favourable than the way someone who is not covered by the discriminatory ground, is, has or would be treated.

The respondent also referred to the case of Melbury Developments v Valpeters EDA09/17 where it submits that:

“speculations or assertions, unsupported by evidence cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

In relation to the substantive case, the respondent stated that the complainant retired in line with the provisions of her contract of employment and the applicable retirement policy in place at the time which set 65 years as the normal retirement age.

The respondent submits that its retirement age is in place for the following reasons:

“to maintain a balanced and diverse age structure and distribution of work in the workforce, facilitating the creation of opportunities in the labour market, thus encouraging and facilitating recruitment and retention of staff through the provision of promotion opportunities, which in a tight labour market is key to the ability of the Council to sustain its services to the public.”

The respondent also stated that as it is required to deliver public services within a limited budget, it needs to engage in manpower planning and to look ahead with a degree of certainty at its resources and requirements.

The respondent submits that it has satisfied the three-tier objective justification test as set out in Bilka -Kaufhaus GmbH v Karin Weber von Hartz [1986] ECR 1607 and that the means taken to achieve its aims were proportionate and necessary as set out in the case of Hamill v Scouting Ireland Ltd DEC-E2018-002.

The respondent stated that Circular Letter S.4 of 2017 could have had no application to the complainant’s case as she had retired almost six months prior to its effective date.

The respondent concluded by stating that the complainant retired in line with her contract of employment, at the established retirement age of which she was aware. The respondent also confirmed that the retirement age had been applied universally across the organisation and that it had objectively justified the retirement age as is required by the legislation.

The respondent contends that the complaint should be dismissed.

The essence of this complaint is whether the complainant was discriminated against by the respondent when her employment ceased on her 65th birthday. The complainant stated that she was subject to a discriminatory dismissal on the basis of her age. The respondent contends that the complainant retired in line with the provisions of her contract of employment and that it provided objective justification for setting a retirement age of 65 years.

The Applicable Law

Discrimination

Discrimination is defined under Section 6 of the Employment Equality Act, 1998 as follows:

6(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —

(a) 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) (in this Act referred to as the ‘discriminatory grounds’) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

Section 6(2)(f) of the Employment Equality Act, 1998 provides as follows:

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”),

Burden of Proof

Section 85A of the Act provides as follows in relation to the burden of proof which a Complainant must establish:

 85A (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 Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority 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.

Section 34(4) of the Employment Equality Act, 1998 as amended by Section 10 of the Equality (Miscellaneous Provisions) Act, 2015 provides as follows:

34(4) Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees if —

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

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

In the instant case the complainant, having had a number of periods of temporary employment with the respondent since 1999, became a permanent employee in August 2001. At the time her employment ended on her 65th birthday in June 2017, the complainant had approximately 16 years of service. The complainant, by email to a Senior Executive Officer within the HR function dated November 3rd, 2016 sought to remain in employment for one additional year until her 66th birthday when she would qualify for the Contributory State Pension. There was no response to this email. As well as leaving voicemails, the complainant sent a further email to the Senior Executive Officer in February 2017 seeking a response to her previous requests.

I accept the complainant’s position that there was no engagement from the respondent and that no consideration was given to her request to remain in her employment for a further year until her 66th birthday or any reasons provided to her at the time why she could not remain in employment for the additional year.

The respondent, at the adjudication hearing, put forward its position in relation to its retirement age and the reasons which it believes justified its decision to apply a 65 years of age retirement to the complainant.

In all of the circumstances of the case, I find that the respondent has failed to justify applying a retirement age of 65 years to the complainant. I also find that the actions of the respondent in ultimately refusing the complainant’s request were neither appropriate or necessary in seeking to meet its objectives.

The complainant was employed as a Clerical Officer and sought one additional year of employment. I find that acceding to this request would have had little or no impact on the respondent’s wider objectives especially in circumstances where a short number of months later a circular issued which provided for similar applications to that of the complainant be treated favourably.

In relation to the Circular, I accept that it had not come into existence when the complainant’s employment ended but the respondent failed to seek clarity on that issue at the time and failed to engage with the complainant at all on the matter. In conclusion I find that the complainant has established a prima facie case of discrimination and the respondent has failed to discharge the burden of proof on the issue. Accordingly, I find that the complaint is well founded, and that the respondent discriminated against the complainant on the grounds of her age.

Loss

The complainant stated that the discriminatory treatment and related dismissal has resulted in a loss of earnings of approximately €13,000. The complainant is seeking compensation in that amount. The amount was not contested by the respondent.

Naming of the parties

Given the personal nature of the subject matter of this complaint, I have decided to use my discretion and anonymise this decision.

Having considered the submissions of both parties, I find that the complaint is well founded. The respondent is directed to pay the complainant €13,000 in compensation for the infringements of her rights under the legislation.

Retirement age, age discrimination