Complainant

Respondent

Anonymised Parties

Community Employment Scheme Supervisor

A Voluntary Organisation

Representatives

SIPTU

Adare Human Resource Management

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-00009173-001

19/01/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00009173-002

19/01/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00009173-003

19/01/2017

The complainant was employed as a Community Employment Supervisor by the respondent, a Voluntary Organisation. The complainant’s employment commenced in January 2002 and signed a contract of employment in December 2003. Her employment was terminated on 5 August 2016. The complaint arises from this termination which occurred when the complainant reached her 66th birthday. The complainant was in full time employment, working 39 hours per week and was paid €772.50 (gross) at the time her employment came to an end.

The complainant believes that she was forced to retire on reaching the age of 66 and that the respondent has discriminated against her on the grounds of Age. She also claims that the respondent has breached the terms and conditions of her contract of employment.

The respondent refutes the claims put forward by the complainant. It claims that the decision to terminate the complainant’s employment was objectively justified by a legitimate aim which was appropriate, necessary and proportionate.

The complainant worked for the respondent for 14 years as a Community Employment Supervisor, she claims she had an exemplary work record, and really enjoyed her work.

The complainant claims that her contract of employment states that “The contract of employment is for the duration of the Scheme and for further renewal period. Your employment is dependant of FAS continuing to fund this Community Employment scheme”. She claims that the contract that she signed did not contain any mandatory retirement age. She does not remember signing or even seeing any other contract after December 2003. The complainant maintains that the respondent has breached the terms and conditions set out in her contract as the scheme is still being funded and she did not want to retire at age 66 and had requested that she remain on in employment.

The complainant maintains that under section 6 (2) of the Employment Equality Acts 1998 -2015 employees are protected from being discriminated against on the protective characteristic including Age. The situation she found herself in is that she was forced to retire from her work on reaching the age of 66 years old. The complainant claims that her Age was the only reason for terminating her employment and this constitutes direct discrimination on the grounds of age.

The complainant claims that she had been in contact with the respondent when she was put on notice that her time with the respondent was coming to an end and her position was being advertised to be filled. She claims that she was told in her interaction with the respondent that the termination of her contract was solely based on her reaching the retirement age. She claims that she was told that the respondent never sought to look at alternatives other than forcing her to retire, such as part time work or funding her employment from other means to help to prolong her employment. She claims that she cannot accept a defence of expense or cost as an objective justification for discrimination. She claims that her employer is a private body and not a public body and there is no statutory retirement age applicable to her employment. She claims that she was happily engaged in employment and on reaching the age of 66 wanted to stay on and had no intention of making an application to receive the State Pension while she remained in employment.

The respondent is a company limited by guarantee which was formed for the sole purpose of providing a mechanism for the implementation of a community based employment scheme. The respondent said that the complainant was a Community Employment Supervisor with it for 14 years.

The respondent claims that the Department of Social Protection, which took over from FAS, fully funds the scheme and sets the strict criteria for that funding.

The respondent provided details of the Community Employment Scheme Handbook which deals with all the procedures. The handbook states that the Department of Social Protection will not provide funding to a Sponsor for any supervisor who has reached the State Pension age.

The respondent said that following the complainant’s request to it to remain in employment after her 65th birthday the respondent approached the Department of Social Protection to ask about the complainant continuing to work with it as a Community Employment Supervisor. The Department of Social Protection confirmed to it that the complainant could remain on for another year but not beyond that point. The respondent said that if it were to keep the complainant on to run the scheme the Department of Social Protection would not provide the funding and the scheme would therefore come to an end. Consequently, the respondent had no choice but to terminate the complainant’s employment after seeking clarification from the Department of Social Protection.

The respondent claims that the complainant was not discriminated against as there was an objective justification for the termination of her employment. It said that this was based on a number of reasons including,

·         Promoting better access to employment with the respondent for external candidates. In this instance, following an instruction from the Department of Social Protection, an external candidate was recruited to replace the complainant in the role as Community Employment Supervisor.

·         Providing Community Employment participants with the opportunity for progress and promotion to the role of Community Employment Supervisor within the respondent.

The respondent said that the complainant’s retirement was objectively justified and the means of achieving those aims were appropriate, necessary and proportionate.

The relevant law

Section 6(1) of the Employment Equality Act, 1998, states:

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

…

Subsection (2) of this section states:

As between any 2 persons, the discriminatory grounds (and the description of these 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”)

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 retirement (whether voluntarily or compulsorily) of employees of 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.

Section 85A of the Act sets out the burden of proof which applies to claims of discrimination and requires the complainant to establish, in the first instance, facts that she can rely on in asserting that she suffered discriminatory treatment. It is only when a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.

I am satisfied that it was established that the only reason for the termination of the complainant’s employment was the decision by the Department of Social Protection to implement their policy as regards not funding the employment of Community Employment Scheme supervisors who have reached State Pension age. I find therefore that a prima facie case of discrimination on the grounds of age has been established.

I note the decision in the High Court in Donnellan v Minister for Justice, Equality & Law Reform [2008] IECH 467 stated that it is incumbent upon the member state to justify this difference in treatment on the grounds of age. It can do so under the provisions of Article 6 if it can establish that, within the context of national law, the differences in such treatment are “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.”

The respondent also said that retirement of the complainant upon reaching State Pension age is entirely consistent with the established retirement practice undertaken by the respondent in relation to all its employees. There is no exception to this established custom and practice.

The facts of the case are not in dispute here. The complainant commenced employment with the Community Employment scheme in January 2002 as a Supervisor, until the time of the termination of her employment on 5 August 2016. A contract of employment was signed by both parties in December 2003 and it is clear that no retirement age was specified in this document. The second clause in the contract of employment relates to the Supervisor’s dependency of the funder continuing to fund the Scheme.

The complainant advised the respondent of her desire to remain in employment beyond her 65th birthday. The respondent made contact with the Department of Social Protection and sought clarification on the matter, it was confirmed to the respondent by the Department of Social Protection that the complainant could stay on up to the age of 66. The complainant was informed on 19 June 2015.

The Community Employment Procedures Manual states that the Department of Social Protection will not make funding available to a Sponsor for any Supervisor or Assistant Supervisor (or participant) who has reached State Pension age. I note that the complainant’s employment was terminated on her reaching her 66th birthday.

The complainant argued that the complainant’s original contract of employment did not include a retirement age. However, the respondent claims that a new contract of employment was introduced in December 2007 but it did not have a signed copy on file. The respondent pointed to the Community Employment Procedures Manual which governs all aspects of the functioning of the Employment Scheme and which was referenced in the employment agreement between the parties. Clause 3.3.3 of the Manual deals with eligibility and states that “supervisors should preferably be recruited from the Live Register and should be between 25 years of age and State Pension Age as detailed below (the retirement age for all [Community Employment] Supervisors is the age they can avail of the State Pension, therefore they can work on [Community Employment] schemes up to the working day before the relevant birthday)”. The clause goes on to state that the Department of Social Protection will not make funding available for any Supervisor or other participant who has reached State Pension age.

The respondent in this case argues that the reason that the complainant’s employment terminated was due to the fact that the rules of the Community Employment Scheme meant that the funding provided in relation to the complainant by the Department of Social Protection would cease rendering the Scheme defunct. The respondent said that the amount of funding required to retain the complainant in employment would be beyond the respondent’s capacity, its sole purpose was to run the scheme, which is solely funded by the Department of Social Protection and bound by their rules.

The respondent asked me to take note of a decision based on a similar set of facts from the Workplace Relations Commission in ADJ00004094, where the Adjudication Officer found “The European Court of Justice considered the matter of a compulsory retirement age in Palacios de la Villa v Cortefiel Servicios SA and found it to be lawful “where the measure, although based on age, is objectively and reasonably justified in the context of national law by a legitimate aim relating to employment policy and the labour market, and it is not apparent that the means put in place to achieve that aim of public interest are inappropriate or unnecessary for that purpose.”

The aim of [Community Employment] schemes is to provide work experience and training opportunities for unemployed persons. It is policy that once a person on a [Community Employment] scheme reaches State Pension age their participation in the scheme must cease. There are usually a finite number of places on a scheme and this policy allows for new participants to enter and avail of the benefits of the scheme. This policy is also applied to Supervisors for similar reasons and to provide promotional opportunities for members of [Community Employment] schemes. The complainant argued that only 10% of participants advanced to supervisory positions in [Community Employment] schemes but this figure is not insignificant. The Equality Tribunal has stated that “a legitimate employment policy means that a respondent is entitled to maintain a retirement age that ensures cohesion among all its employees. Having different rules of retirement for different employees may threaten the respondent employee’s cohesion and open up further areas of discrimination that may not be subject to an objective justification test.” (Doyle v ESB International Ltd.) Of course a person leaving a [Community Employment] scheme in such circumstances then receives the State Pension.

It is understandable that the complainant wished to remain in employment. The campaign on behalf of [Community Employment] Supervisors and the Private Member’s Bill no doubt heightened an expectation in that regard. Having regard to the totality of the evidence, however, I have concluded that the complainant’s termination of employment was due to the withdrawal of funding by the [Department of Social Protection]. This withdrawal of funding was objectively justified by a legitimate aim relating to employment policy and the labour market. I therefore find that the respondent acted in compliance with Section 34(4) of the Act and that the application of a retirement age in this case was necessary, reasonable and proportionate. In consequence, the complaint of discriminatory dismissal on the grounds of age fails.”

The decision in the case mentioned above is very similar if not identical to the situation that is before me for consideration. The funding for and the very existence of the Community Employment scheme is wholly dependent on the respondent meeting the strict rules of the Department of Social Protection. Those rules impose a restriction on the respondent as to the Community Employment Scheme participants and supervisors. The termination of the complainant’s employment was due to those rules and the proposed withdrawal of the Department of Social Protection funding to the Community Employment Scheme rendering the scheme defunct as there is no other funding available to support the scheme. The withdrawal of funding was objectively justified by a legitimate aim relating to promoting better access to employment for external candidates to the respondent in the voluntary sector and for providing Community Employment participants with the opportunity for progression and promotion to the role of Community Employment Supervisor. Accordingly, I find that the respondent acted in compliance with Section 34(4) of the Act and that the application of a retirement age in this case was necessary, reasonable and proportionate.

CA-00009173-003 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

No evidence was presented or adduced from the witnesses in support of this aspect of the complaint.

CA-00009173-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998.

I find that the respondent acted in compliance with Section 34(4) of the Act and that the application of a retirement age in this case was necessary, reasonable and proportionate. Accordingly, the complaint fails.

CA-00009173-002 - Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969.

I find that the respondent acted in compliance with Section 34(4) of the Act and that the application of a retirement age in this case was necessary, reasonable and proportionate. Accordingly, the complaint fails.

CA-00009173-003 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

The complainant has not made out a case in relation to a material change in the terms and conditions of her employment. The complaint under the Terms of Employment (Information) Acts 1994 to 2014 fails.

Employment Equality Act - Industrial Relations Act – retirement age - necessary, reasonable and proportionate - complaint fails.