FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : AER LINGUS LIMITED (REPRESENTED BY MS ROSEMARY MALLON B.L; AS INSTRUCTED BY MS ELAINE METTLER, AER LINGUS) - AND - RICHARD WALSH (REPRESENTED BY MS CATHY MCGRADY B.L; AS INSTRUCTED BY DANIEL SPRING & CO SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Connolly Worker Member: Ms Treacy |
1. Appeal of Adjudication Officer's Decision No. ADJ-00006810
BACKGROUND:
2. The Claimant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts 1998 to 2015. A Labour Court hearing took place on 27th November, 2018.
The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Mr Richard Walsh against the Decision of an Adjudication Officer ADJ-00006810 CA-00009066-001 in a claim of discrimination by his employer, Aer Lingus Limited, under the Employment Equality Act 1998 – 2015 (the Acts). Mr Walsh claimed to have been discriminated, subjected to harassment and victimised against by Aer Lingus on the grounds of age contrary to section 6(2)(f) of the Acts.
The claim under the Acts was referred to the Workplace Relations Commission on 13thJanuary 2017.
In a preliminary hearing, the Adjudication Officer found that there was no incident of discrimination within the cognisable period, therefore he held that the claims were out of time and were statute barred. Mr. Walsh appealed that Decision to this Court.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr. Richard Walsh will be referred to as “the Complainant” and Aer Lingus will be referred to as “the Respondent”.
At the hearing before the Court Legal Counsel for the Complainant informed the Court that the claim of victimisation was withdrawn and that the claim relating to harassment was on the same set of facts as the discrimination claim.
Background
The dispute giving rise to this appeal concerns a claim by the Complainant, represented by Ms. Cathy McGrady, B. L. instructed by Daniel Spring & Respondent Solicitors, that he was discriminated against by the Respondent on the age ground when he was removed from his position as Manager Catering Operations in August 2013. He was placed in the Respondent’s “Internal Resource Pool” and she alleged that he was maintained in that Resource Pool for discriminatory reasons until he was made permanent in December 2016. Ms McGrady submitted that this constituted a discriminatory act over a period of time which has had a clear and adverse effect on the Complainant and did not end until December 2016, which was within the cognisable period.
The cognisable period for the purpose of the Acts is 14thJuly 2016 until 13thJanuary 2017.
The particular incidents relied on within the cognisable period related to a claim that the Respondent made a decision/attempt to remove him from his role in October 2016, without good cause or any reason, to accommodate a younger member of staff. Furthermore, he claimed that he was permanently demoted in December 2016.
Ms Rosemary Mallon, B.L. instructed by Ms Elaine Mettler, Aer Lingus Solicitor, on behalf of the Respondent, submitted that the Complainant had failed to identify any event which occurred during the cognisable period such that could come within the definition of discrimination under the Acts and she rejected the claim that there were acts of discrimination either within the cognisable period or at any time. She submitted that it was clear that all of the Complainant’s issues stemmed from the restructuring of the Catering Department which took place in 2013 and the fact that he does not accept that his role was validly made redundant at that time.
Approach of the Court
- Section 77(5)(a) of the Acts provides: -
- (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.
Section 77(6A) provides: -- For the purposes of this section —
(a) discrimination or victimisation occurs—
(i) if the act constituting it extends over a period, at the end of the period,
The application of these provisions was extensively considered by this Court in Determination EDA1124Ann Hurley v County Cork VEC. The Court in that case decided that it was clear
- “that in order the acts or omissions outside the time limits to be taken into account there must have been acts or omissions of victimisation (or discrimination) within the time limit.”
It held that:
‘there must be some reality in the claim that acts of discrimination actually occurred within the limitation period. Otherwise a complainant could revive a claim which had been extinguished by the time limit simply by raising an additional related claim, no matter how tenuous, within the time limit.”
Therefore, the Court must consider if the incidents relied upon by the Complainant can be regarded as part of a continuing act of discrimination for the purpose of Section 77(5) of the Act. In that regard, applying the principles identified above to the instant case, it appears that the admissibility of the claim in so far as it relates to alleged acts of discrimination in the period before 14thJuly 2016, depends upon the validity of the claim of discrimination which allegedly occurred in the period after that date. That is a question to be decided on the evidence.
Admissibility is also dependent upon some link being established between the occurrences outside the time limit, and those inside the cognisable period, which makes it just and reasonable for them to be treated as part of a continuing act upon which the Complainant can rely.
The Court therefore, consistent with its approach inCounty Cork VEC, must first consider whether an act or acts of discrimination occurred within the cognisable period for the within complaint before it can consider whether events outside of that period can be considered to be part of a continuum or regime of discrimination and within the jurisdiction of the Court. It is only if the Court forms such a conclusion that it can consider events which occurred prior to the cognisable period.
The Court proposed to the parties that it should proceed with the preliminary point in relation to the time limit only. It proposed that for that purpose the Complainant should adduce evidence in relation to the occurrences that were within the time limit. It suggested that if these occurrences were found to be an act of discrimination the Court would hear evidence in relation to all of the occurrences relied upon. If, however these occurrences where found not to have involved an act of discrimination the complaint relating to the earlier occurrences could not be entertained having regard to Section 77(5) of the Acts as the most recent occurrences would have been outside the time limit.Both Counsel for the Complainant and for the Respondent agreed to proceed in the manner suggested by the Court.
Summary of the Complainant’s Case
The Complainant was born in 1956.
The Complainant alleged that his removal from his role as Manager Catering Operations in August 2013 was discriminatory on the age ground. He disputed the Respondent’s contention that it was for redundancy reasons and alleged that the Respondent had acted in breach of his rights and entitlements and its own policies and procedures. He also maintained that it had repeatedly failed to properly address his grievances and its failure to redeploy his into a suitable alternative role was discriminatory on age grounds. He said that the Respondent’s alleged discriminatory actions had caused him great distress.
Ms McGrady submitted that the Complainant was removed from his role and placed involuntarily in the “Internal Resource Pool” and maintained as such for discriminatory reasons. She contended that younger colleagues performed the duties which he previously performed and other younger colleagues were preferred and/or appointed to positions that were suitable for the Complainant, without any explanation or transparency, until December 2016.
In the written submission and in his evidence to the Court, the Complainant said that he was informed of the impending Catering reorganisation which would result in his role being made redundant on 22ndJuly 2013. The Complainant said that this news came out of the blue, without notice or consultation. At the time he said that he was unaware that a review had been carried out into the operations of the Catering Department. He said that when he enquired as to the reasons for the restructure he was redirected to the HR Department.
At a meeting on 31stJuly 2013, attended by the HR Business Partner and the Director of Change and Engagement the rationale for the restructuring was explained to him and he was informed that there was no longer a role for him in the Catering Department. By letter dated 2ndAugust 2013, he was formally informed that his role would ceased with effect from 7thAugust 2013.
The Complainant disputed the rationale for the elimination of his role, he proceeded to raise a formal grievance with management and sought restoration to his managerial role in the Catering Department. He invoked a number of stages of the grievance procedure. The outcome of his grievance held that the Respondent was entitled to restructure the Catering Department in 2013. However, they held that the consultation and communication processes were inadequate and, in that regard, held that there were shortcomings in the Respondent’s approach, however it held that these shortcomings did not warrant the redress sought by him.
In September 2013, the Complainant was placed in an alternative role as Cash Office Manager on a temporary basis. That role continued on a temporary basis into 2016. The Complainant told the Court that on 10thOctober 2016 he was informed by Ms Sharon Morris, Employee Relations Manager, that his temporary role was at risk of redundancy due to the introduction of new cash machines in Summer 2017. The Complainant was informed that the residual element of his duties would be assigned to the EPOS Manager. The latter was younger than him.
He raised an objection and made a number of arguments to management about the necessity to retain his role. He said that both himself and the EPOS Manager were at the same level. Management informed him that he was about to be declared surplus to requirements and that the voluntary severance package was available to him if he did not wish to return to the Resource Pool. However, he maintained that management had a gross misunderstanding of the new machines and he managed to persuade them to retain his services and some staff. On 22ndDecember 2016, he was informed that his role was no longer temporary, and it was confirmed as permanent. He said that he is still preforming the same role. He said that as the EPOS Manager was younger than him and as his performance ratings indicated that he was reaching expectations, he was of the view that the only reason he was being displaced in his role was due to his age.
Undercross examination, the Complainant accepted that the EPOS Manager was 4 or 5 years younger at the time. The Complainant also accepted that he was in a temporary position at the time whereas the EPOS Manager was in a permanent role and had been in that role since 2003/4. He also accepted that the new machines would have no impact on the EPOS Manager’s role as it was a separate unit. However, while he accepted that he did not have the skills required for EPOS Management he contended that he could have been trained in such skills and placed in the EPOS Manager role instead of being made redundant. In which case the EPOS Manager could have been displaced. Therefore he contended that the decision to make his role in the Cash Office redundant was based on the grounds of his age.
The Complainant alleged that as he was declared permanent in December 2016 in a role which he considered was a demotion from the role he held as Manager Catering Operations, that this was a further act of discrimination on age grounds. He said that in the latter role he had responsibility for over 200 employees and attended management meetings. He asserted that in his role as Cash Office Manager he no longer had the same status.
The Complainant accepted that he did not raise an allegation of age discrimination until he referred his claim under the Acts to the Workplace Relations Commission in January 2017.
In support of the Complainant’s contention, Ms McGrady citedMoate Community School v MoriartyEDA0718 in which the Labour Court assessed the burden of proof in age discrimination cases in the context of a promotion, it held: -
- ‘‘These classifications, particularly at their interface, are often based on perception or opinion which can vary from one individual to another. Ageism, in relation to employment, is generally the product of an attitude of mind which stereotypes those above a certain age as less adaptable to change, or more difficult to train in new skills, or less willing to take on new work practices.
Evidence of discrimination on the age ground will generally be found in the surrounding circumstances and facts of the particular case. Evidence of it can be found where job applications from candidates of a particular age are treated less seriously than those from candidates of a different age. It can also be manifest from a conclusion that candidates in a particular age group are unsuitable or might not fit in, where an adequate appraisal or a fair assessment of their attributes has not been undertaken.”
Summary of the Respondent’s Position
Ms Mallon stated that the decision to make the Complainant’s role redundant in 2013 was not related to his age nor was it performance related. She said that in 2013 it carried out a review of its Catering Department operations and decided to restructure the Department’s activities into two business units with their own separate management, a Flight Kitchen and a Supply Chain function which was to be subsumed within the Strategic Sourcing Department under a new Corporate Supply Chain Director. Arising from this the Complainant’s management role was no longer required and was made redundant.
As the Complainant’s role no longer existed, he was given the option to take a voluntary severance package or opt to be placed in the Resource Pool, which was designed to support employees who were displaced due to business change or restructuring with continuing employment and redeployment opportunities. Management stated that the Resource Pool provided an intensified search for an alternative permanent role, interim project work/placements, training and upskilling courses and other supports. It also provided the Complainant with a red circling of his remuneration and terms and conditions of employment.
In November 2016 Management decided that due to the introduction of new cash machines, there was no longer a need for a number of employees in the Cash Office and decided to make seven positions redundant, including the Complainant’s role, when the new machines were introduced the following year. At the time, the Complainant raised an objection to the removal of his role and this objection coupled with arguments he made for the retention of his role resulted in not only the retention of his role but with effect from 22ndDecember 2016 his position was made permanent.
In her evidence to the Court, Ms Morris, Employee Relations Manager stated that at the meeting with the Complainant on 10thOctober 2016, she informed him that due to the introduction of new technology (cash machines) which were due to come into operation the following Summer, that his role was at risk of redundancy and he could either avail of the voluntary redundancy package or be placed in the Resource Pool. She told him that there was going to be a reduction of staff in his section from 10 employees to 4 and that his role would be made redundant. She said that there would be some residual elements of his job remaining which it had been decided would be assigned to the EPOS Manager on a phased basis.
The witness was asked if the Complainant could carry out the EPOS Manager’s job. She said no as it required systems management and the Complainant did not have the necessary skills or experience. In any event she said that the EPOS Manager’s role was not affected by the new technology. She said that management considered the arguments made by the Complainants for the retention of his role when the new technology was introduced and the need to retain some employees and this was acted upon and in December 2016 he was made permanent in his role as Cash Office Manager.
Ms Mallon disputed the Complainant’s contention that his permanency in December 2016 was an act of discrimination. She said that throughout the entire period from 2013 to the present day, his remuneration, all terms and conditions of employment and his status were preserved. She disputed his contention that he was responsible for over 200 employees in his previous role as she said that the Head of Catering had that responsibility and that when he attended managerial meeting he was filling in for the Head of Catering.
Conclusions of the Court
The Court carefully evaluated all of the evidence tendered in the course of this appeal together with the careful submissions made on both sides, the witness testimony and the extensive documentation put in evidence.
The allocation of the burden of proof as between the parties is now governed by Section 85A of the Acts. This Section provides a three-stage test.The Complainant must first prove the primary facts upon which he relies in advancing his claim of discrimination. If the primary facts are proved, or are admitted, the Court must be satisfied that they are of sufficient significance to raise a presumption of unlawful discrimination. If the first two limbs of this test are satisfied by the Complainant the Respondent must then prove, as a matter of probability, that the Complainant was not subjected to unlawful discrimination.
The Court examined the events submitted by the Complainant to have occurred between the dates 14thJuly 2016 until 13thJanuary 2017. The Court is satisfied that the Complainant was informed that his role was at risk of redundancy, however, he was not declared redundant either at that time or when the new machines were introduced in 2017, in fact he was made permanent in his role. Hence, it would appear to the Court, this aspect of the case is moot.
In any event, the Court is of the view that facts have not been established to infer that the Complainant was discriminated on the age ground. In that regard, the Court notes that the EPOS Manager was in a permanent role and had been in that role since 2003/4, approximately 10 years before the Complainant took up the position in the Cash Office, and the Complainant did not have the requisite skills or experience for the role, there is no valid reason why the EPOS Manager should have been displaced to accommodate the Complainant.
Furthermore, the Court does not accept that sufficient facts have been established to infer that the Complainant was demoted when he was made permanent and as such no inference of discrimination on the age ground arises.
Taking all of the above matters into account the Court concludes that the Complainant has failed to establish primary facts from which it could be inferred that he was discriminated against during the cognisable period for the within complaint.
Therefore, he has failed to discharge the burden of proof which rests upon him and has failed to establish aprima faciecase of discrimination within the cognisable period of the within complaint. In consequence of this conclusion the Court cannot address the contention that events occurring within the cognisable period were part of a continuum of discrimination and as a result the Court does not have jurisdiction to consider the complaints made by the Complainant relating to events outside the period set out in the Acts for the making of a complaint of discrimination.
The Court therefore concludes that the Respondent did not discriminate against the Complainant on the age ground in contravention of the Acts at Section 8.
Determination
The Court determines that the Complainant was not discriminated against on the age ground.
The Adjudication Officer’s Decision is upheld, and the appeal fails.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
14th December 2018______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.