DEC-E2018-002

EMPLOYMENT EQUALITY ACTS 

DECISION NO. DEC-E2018-002     

PARTIES  

William Hamill

Vs  

Scouting Ireland Limited

(Represented by IBEC)                    

FILE NO: Et-158590-ee-15   Date of issue:  

16th of January 2018     

1.     Dispute  

1.1       This dispute involves a claim by the complainant that he was discriminated against by the respondent on grounds of age in terms of section 6 of the Employment Equality Acts, 1998 to 2015 and contrary to section 8 of those Acts, in relation to his conditions of employment when he was forced to retire on the day before his 66th birthday.     

2.     Background

2.1       The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2015 to the Equality Tribunal on the 5th of August, 2015.

2.2       In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated the case on the 9th of June 2017, to me, Orla Jones Adjudicator/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from both parties.   As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 17th of November, 2017.    

2.3       This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.  

3.       Summary of complainant’s case

3.1       It is submitted that   the complainant, commenced his employment with the respondent in September 1993 and was appointed to the role of Supervisor on the 4th of November, 1996,   the complainant was forced to retire from his position on the 16th of July, 2015 the day before his 66th birthday, this amount to discrimination on grounds of age.  

4.       Summary of respondent’s case

4.1       It is submitted that  

the complainant commenced his employment with the respondent in 1993 and was appointed as Supervisor on the Department of Social Protection (DSP) Community Employment Scheme in November 1996, the scheme was at the time funded by FAS,   the complainant’s terms of employment were from the outset dictated by the funder of the CE scheme and the continuation of his employment was subject to the provision of funding by the funder on an annual basis,   the ‘Sponsors Operation Manual’ outlines the terms and conditions of employment of those employed as Supervisors on CE schemes and states that “DSP will not make funding available for any participant/Supervisor of 66 years of age and over”   the manual also states that “All CE Supervisor contracts should include a clause stating that the Supervisor must retire on their 66th birthday”.  

5.         Preliminary Issue-Discriminatory Dismissal

5.1       The complainant in his complaint form had claimed that he was discriminated against in terms of his conditions of employment in relation to being forced to retire at age 66. The complainant in his submissions to the Tribunal referred to an allegation of Unfair Dismissal. The complainant at the hearing of the claim clarified that his claim was one of discriminatory dismissal on grounds of age and stated that he did not wish to pursue a claim of Unfair Dismissal.    

6.       Findings and Conclusions of the Equality Officer

6.1       The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of age, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2015, in relation to his being forced to retire on the day before his 66th birthday.   In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.           

6.2       Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary.   The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: “places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.  

6.3       Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..  Section 6(2) (f) of the Acts defines the discriminatory ground of age as follows – “as between any two persons ….. that they are of different ages, but subject to Section (3) … “ 

6.4       Thus the complainant must be the subject of less favourable treatment in comparison to another person on grounds of age. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts. The Labour Court has stated in Melbury Developments Limited and Valpeters:  

Section 85A of the Act provided for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. While those facts will vary from case to and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.[1]  

6.5       Objective justification of Mandatory Retirement Age

6.5.1    Section 34(4) of the Act states:      

Without prejudice to subsection (3) it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntary or compulsory) of employees or any class or description of employees. (Section 34(4) was amended in December 2015 to include an obligation for an employer to justify the difference of treatment on the grounds of age. The employer must establish that the difference in such treatment is (i) objectively and reasonably   justified by a legitimate aim, and (ii) the means of achieving that aim are appropriate and necessary)  

6.5.2    However, it has been the practice of the Equality Tribunal/Commission to interpret Section 34 (4) in a harmonious way with Article 6 (1) of the Equal Treatment Directive 2000/78/EC:

Notwithstanding Article 2(2), Member States may providethose differences of treatment on grounds of age shall notconstitute discrimination, if, within the context of national law,they are objectively and reasonably justified by a legitimateaim, including legitimate employment policy, labour marketand vocational training objectives, and if the means ofachieving that aim are appropriate and necessary.[2]  

Authority for this is Donnellan v The Minister for Justice, Equality and Law Reform where McKechnie, J. states:

Any discrimination with regards to age must, as put by that Directive, serve a legitimate aim or purpose, and the means taken to achieve that purpose must be appropriate and should go no further than is necessary, i.e. they should be proportionate.[3]   

6.5.3    This has been followed by the Tribunal in Saunders v CHC[4], Paul Doyle v ESB International[5], Rosanna Nolan v Quality Hotel[6] O’Neill v Fairview Motors[7]Patrick Dunican and Thomas Spain v Offaly Civil Defence[8]McPhillips v ISS Facility Services[9]and John Roche v Complete Bar Solutions[10].  

6.6       Retirement due to age

6.6.1    The complainant advised the hearing that he was forced to retire on the day before his 66th birthday.     The complainant in advancing his claim stated that he was aware of others in the same circumstances who had remained in employment after their 66th birthday. The complainant in advancing this argument named a number of individuals employed by various County Councils and/or working in CE schemes in different parts of the country.  

6.6.2    The respondent in response to this stated that none of the individuals named by the complainant were employees of the respondent and so were not valid comparators. The respondent advised the hearing that all of its CE Supervisors had to retire before their 66th birthday as funding for their employment was only provided by the DSP up until that time. The respondent in reply to the complainant’s assertions that other CE Supervisors were kept on by different employers stated that it may be the case that some employers may have the capacity to offer individuals direct employment, and to fund such employment themselves, after funding from the DSP has ceased. The respondent added that it was not in a position to fund the complainant’s employment directly and that it relied on funding from the DSP for the post. The respondent stated that during the complainant’s employment with them other CE supervisors had reached the age of 66 and had to retire at that time as the funding for their positions ceased upon their reaching the age of 66. The complainant at the hearing did not dispute this. The respondent told the hearing that the complainant was well aware of the retirement age for those on CE schemes and had even at one point during his role as CE supervisor, been involved in making representations to the DSP for an employee to be kept on past his retirement date but that such application had been refused by the DSP.  

6.6.3 The complainant advised the hearing that his contract did not contain any retirement age. The respondent conceded that the complainant’s contract does not make any reference to a retirement age of 66 but stated that the complainant’s terms and conditions are governed by funding received from the sponsors of the CE Scheme i.e. the Department of Social Protection.   The respondent advised the hearing that the complainant’s terms of employment were from the outset dictated by the funder of the CE scheme and the continuation of his employment was subject to the provision of funding by the funder on an annual basis. The respondent advised the hearing that the ‘Sponsors Operation Manual’ outlines the terms and conditions of employment of those employed as Supervisors on CE schemes and states that the “DSP will not make funding available for any participant/Supervisor of 66 years of age and over”. The respondent told the hearing that the manual also states that “All CE Supervisor contracts should include a clause stating that the Supervisor must retire on their 66th birthday”.  

6.6.4    The respondent advised the hearing that it had no option but to retire the complainant on the day before his 66th birthday as his wages would no longer be paid by the sponsor after that date. The respondent stated that it has no say in the decision to retire the complainant at the age of 66 as this is a matter decided by the sponsor of the CE scheme. The respondent advised the hearing that the complainant’s wages are paid by the sponsor of the CE scheme and that the sponsor discontinues funding for all CE Supervisors upon their reaching the age of 66. The respondent advised the hearing that it could not continue to pay the complainant if there was no funding from the sponsor and stated that it could only allow the complainant to remain in employment after his 66th birthday if they were in a position to pay his wages themselves which they were not in any position to do so.  

6.6.5    The complainant advised the hearing that he had been made aware of the obligation to retire by his 66th birthday in May 2015 when his supervisor had called him into a meeting to discuss it. The respondent advised the hearing that during this meeting the complainant had stated that he did not wish to retire but upon being told that funding would no longer be made available for the complainant’s employment the complainant had stated that he planned to begin employment with his son upon retiring from the respondent organisation.   The complainant told the hearing that his retirement was again mentioned to him by his supervisor during an informal chat in the canteen in early July 2015. The respondent advised the hearing that the complainant was well aware of the retirement age for CE Supervisors and stated that he had been advised of it a number of times and that he had been offered and attended a pre-retirement course in preparation for his retirement.  

6.6.6    The respondent advised the hearing that the complainant’s retirement age was governed by the DSP and the conditions set out by the DSP which state that funding for the position of CE Supervisors will cease upon the incumbent reaching the age of 66. The respondent stated that this is out of their hands but also added that it has a retirement age of 65 for its own employees. The respondent in its submissions and at at the hearing provided Objective Justification as to why it sets a retirement age of 65 for its direct employees but added that the complainant’s employment is governed by the sponsor of the CE Scheme and so the retirement age set out by the DSP for CE Supervisors is the day before the 66th birthday of the incumbent of the position.  

6.6.7    In considering the evidence adduced by the parties in this case, I am guided by the decision of the Equality Officer in Bernadette Vickers Vs Daughters of Charity of St. Vincent De Paul (DEC-E2007-017). This case concerned a complainant who was employed by the respondent as a Supervisor under a FÁS Community Employment Scheme and the salary she received was totally funded by FÁS.   Similar to the present case the complainant was forced to retire on the day before her 66th birthday and submitted that that this amounted to discriminatory dismissal on the grounds of age. The respondent rejected this allegation stating that it could no longer continue to employ the complainant as funding was no longer forthcoming from FÁS.   The Equality Officer in that case found for the respondent and stated: #

“I am satisfied that the complainant was employed by the respondent. However her employment by the respondent was under the provisions of the Community Employment Scheme and on the premise that funding would be received from FÁS to permit her continued employment. When the complainant reached the last day of her 65th birthday FÁS ceased funding her on the Community Employment Scheme in accordance with the rules of the scheme. Under that Scheme FÁS has clearly stated that: "In line with Government policy, participation on employment schemes has an upper age limit of 65 years of age i.e. FÁS may provide funds to community based employers to cover participant costs until the day before their 66th birthday (at which point entitlement to a state pension becomes available)".  

6.6.8    Consequently in that case when the funding ceased the respondent could no longer retain the complainant in its employment.   This case is on all fours with the present case as the complainant’s employment in this case was also funded by and governed by the Department of Social Protection, CE Supervisor scheme.  

6.6.9    In considering the present case, I am also guided by the decision of the Equality Officer in the case of Ann Cooney -V-Finglas Sports Development Group (DEC - E2013 – 062) which concerned a supervisor on a CE scheme who was retired upon reaching the age of 66 in line with the FAS rules governing her employment. The EO in that case again found for the respondent and stated

“..from all the evidence adduced in the submissions and at the hearing of the complaint, it is clear that the second-named respondent (FAS) wholly controlled the complainant's eligibility for her employment with the first-named respondent (Finglas Sports Development Group), that it wholly funded her employment with the first-named respondent, and that the condition that her employment was to end the day before her 66th birthday, and the concurrent de-funding of her employment by the second-named respondent(FAS) to the first-named respondent - all of which were confirmed in evidence - does raise the question of a joint responsibility of the two respondents. It is common case that the complainant's employment ended solely because she reached the age of 66, but from all the evidence adduced, it is not clear how the first-named respondent could have possibly avoided such potentially discriminatory conduct, given that it was operating under the rules of the second-named respondent.”.   The Equality Officer in that case also went on to state that

“It is clear to me that the first-named respondent (Finglas Sports Development Group), while it was the complainant's employer in terms of the day-to-day control of her work, simply did not have the gift of continuing her employment beyond her 66th birthday because it would not receive the necessary monies from the second-named respondent (FAS)to do so.  

6.6.10  In applying that to the present case it is clear that the named respondent in this case is in the same position as the first named respondent in the Finglas Sports Development case and is not the person responsible for making the decision in respect of the complainant’s retirement age, as this is governed by the DSP who pays the complainant’s wages and who set out the complainant’s terms of employment under the CE Supervisor scheme.  

6.6.11  I am satisfied from the evidence adduced in the present case, that the complainant’s position of CE Supervisor ceased to be in receipt of funding from the DSP once the complainant reached the age of 66 and thus the respondent could no longer afford to pay the complainant after that date.   I am thus satisfied from the evidence adduced that it was not ‘within the gift’ of the named respondent to retain the complainant in his position after he reached the age of 66 as funding was no longer available for his post from that date.  

6.6.12  Accordingly I am satisfied from the totality of the evidence adduced that the complainant was not discriminated against by the respondent on the ground of age when he was forced to retire from his position as CE Supervisor on the day before his 66th birthday.  

7.         DECISION OF THE EQUALITY OFFICER

7.1       I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find that-

(I)   the complainant was not discriminated against by the respondent on grounds of age in terms of section 6(2) of the Employment Equality Acts, 1998 -2015 and contrary to section 8 of those Acts when he was forced to retire on the day before his 66th birthday.

___________________

Orla Jones

Adjudicator/Equality Officer

16th of January, 2018 

[1] Labour Court Determination No. EDA0917

[2]COUNCIL DIRECTIVE 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation

[3] [2008] IECHC 467 Paragraph 126.    [4] DEC E2011-142     [5] DEC E2012-086     [6] DEC E2012-042    

[7] DEC E2012- 093     [8] DEC E2013-027     [9] DEC E2013-042     [10] DEC E2013-197