Complainant

Respondent

Anonymised Parties

{An Employee}

{A Community Facility}

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-00016647-001

05/01/2018

The employee was employed as a Community Facility Manager on a one year fixed-term contract. His employment was terminated due to the discontinuance of a funding strand due to his age being over 66 years on 1 September 2017. The position is not eligible for Pobal funding once the employee is over 66 years of age.

The employee is a Community Facility Manager who was employed on 2 fixed-term contracts from 4 May 2010 to 30th April 2014 with the Community Facility. He continued to work in the position until his dismissal on 1 September 2017.

There was no retirement age stipulated in his contracts of employment. He was not given the recommended good practice notice of retirement of 6-12 months set out in Statutory Instrument 600 of 2017 and was given 2 week’s notice.

A substantial part of his salary was funded by Pobal and the rest by the Local Authority. His contract is stated to be subject to funding and may be renewable after that date.

He was dismissed following his declaration of 29 June 2017 that he is over 66 years of age, as the post is not eligible for Pobal funding under Community services Programme rules.

The Complainant sought to meet with the Respondent to discuss his role. The Board of the facility informed him by letter that funding for his position had ceased since 3 February 2015, and Pobal were seeking return of the over payment of 77,444.93 euro. They also stated the Complainant had known about the conditions of funding in relation to retirement age, and the Complainant believed this to be a threat that they may seek repayment of the monies from him.

The Complainant sought information regarding efforts to source alternative funding for his role, and he was informed the Respondent would not be doing so and they will hire a new candidate for the role.

The Complainant says he was not aware of the provisions of Pobal’s Operating Manual for Community Services Contract Holders which sets out the provisions regarding funding, even though he had sent this to the Board Members. He said it was not part of his duties to read it.

The Respondent is a company limited by guarantee with a charitable status set up to run the community facility on behalf of the Local Authority.

There was a signed one year written contract with the Complainant which specified that the contract was renewable subject to funding. There is a second draft contract for 3 years which was unsigned. One of the responsibilities of the post was reporting to the Board of Management, liasing with the funding body (Pobal) and staff management.

The Complainant continued in the post of Community Facility Manager until 1st September 2017. He was given notice by letter dated 4th August 2017 of the termination of his contract consequent to the discontinuance of the funding strand from Pobal for the post following his declaration of 29th June 2017 that he was over 66 years of age.

Pobal’s Operating Manual for Community Services Programme Contract Holders provides that

“Individuals who have reached their 66th birthday and qualify for the state pension may not hold a CSP supported post (Manager or FTE post). The employer has the right to continue employing that person after the 66th birthday if desired, but the funds to do so must come from another source”.

The Complainant filed returns to Pobal and ticked a box to confirm that all CSP staff were under 66 years of age. He was aware of the contents of the Operations Manual for Pobal and sent a copy to the Board in 2016. As a consequence of Complainant’s failure to bring this to the attention of the Board the Respondent continued to employ him and were unaware that the cost would not be reimbursed by Pobal. There is now an ineligible spend of 77,444.93 euro.

The Respondent relies on the decision in Bernadette Vickers v the Daughters of Charity DEC E2007-017 where the Equality Officer found that the Complainant was not discriminated against when her employment with a Community Employment Scheme was terminated when she turned 65 years as FAS had a policy of withdrawing funding when the person turned 65 years. The Respondent also relies on Anne Cooney v Finglas Sports Development Ltd DEC E 2013-062 and on William Hamill v Scouting Ireland Ltd DEC- E2018-002. In William Hamill’s case there was no retirement age specified in his contract of employment but the funding of his post was dictated by the funder of the community employment scheme, which was subject to funding on an annual basis. The employer argued that it could not continue to pay as there was no funding from the sponsor to remain in employment after 66th years.

The Respondent denies discrimination from the point of view of a mandatory retirement age. A mandatory retirement age is capable of being objectively justified in light of the funding stricture of which the Complainant is aware.

I have carefully considered the written and oral submissions made by the parties in making my decision.

The Complainant contends that he has been (i) discriminated against by the Respondent pursuant to S6 (1) of the Employment Equality Acts 1998-2015 on grounds of his age and (ii) that he has been dismissed for discriminatory reasons.

S6 (1) of the Employment Equality Acts 1998-2015 provides:

(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 grounds specified in subsection (2) in this Act referred to as the “discriminatory ground”.

S6 (2) f defines the age ground as “ as between any two persons..that they are of different ages..”

The Complainant commenced employment as a Community Facility Manager on 4th May 2010 on a one year fixed-term contract which was executed by the parties. There was no retirement age specified in the contract. The contract stated that it may be “renewable after the above date, which will be subject to funding” and is terminable on one-week’s notice for “discontinuance of funding strand”.

The job description of the Complainant includes “liasing with Pobal and facilitating relevant monitoring procedures, financial audits etc., staff management and working co-operatively with the Board..”. The Complainants role was three-quarters funded by the Community Services Programme of Pobal. The Operating Manual for Community Services Programme Contract Holders sets out its objectives which are to promote social enterprise and to create sustainable jobs for those most distant from the labour market. Page 20 states that “ Individuals who have reached their 66th birthday and qualify for the state pension may not hold a CSP supported post (Manager of Full Time Equivalent post). The employer has the right to continue employing that person after their 66th birthday if desired, but the funds to do so must come from another source.”

The Complainant says he was not aware of the restriction on funding for his position as Manager if the incumbent is over 66 years of age. The Respondent were not aware of the Complainant’s age being over 66 years until he made a declaration in June 2017 saying he was over 66 years of age.

S85A (1) of the Acts requires the Complainant to establish in the first instance facts from which it may be presumed that there has been discrimination or less favourable treatment on grounds of age.

S34 (4) of the Acts provide:

“Without prejudice to subsection (3) it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntary or compulsorily) of employees or any class or description of employees if- (i) it is objectively and reasonably justified by a legitimate aim, and (ii) the means of achieving that aim are appropriate and necessary.”

The Complainant was dismissed due to his disclosure that he was over 66 years of age following an enquiry by Pobal. There is no other comparator as it is a newly established facility. The Respondent has given evidence that it relies on Pobal for the majority of funding of the role and there are no other funds available to fund this position. The Complainant was notified of the termination on 4th August 2017. The Complainant was employed until 1 September 2017 when he was dismissed due to the discontinuance of the funding strand from Pobal.

The Respondent relies on a number of decisions of Equality/Adjudication Officers in William Hamill v Scouting Ireland Ltd DEC -E2018-002, Bernadette Vickers v Daughters of Charity of St. Vincent de Paul DEC-E2007-017, and Ann Cooney -v- Finglas Sports Development Group (DEC 2013-062) where the organisations were found not to have discriminated against employees on the grounds of age when dismissing them from their positions where funding was withdrawn for the roles in accordance with the rules of an external funding organisation.

The Complainant complains that he was not given 6-12 month’s notice of retirement in accordance with the Industrial Relations Act 1990 (Code of Practice of Longer Working) Declaration Order 2017. He says his situation differs to those cases relied on by the Respondent as he was initially funded by the Local Authority and is only part-funded by Pobal. He does not have a retirement age in his contract. The Respondent did not consider the alternatives for funding of his role from the Local Authority and relies on the decision in Cox v RTE ADJ-00006972.

The Respondent disputes that the Complainant was unaware of the restrictions regarding funding by Pobal and says it was part of his role to liase with Pobal on funding. Evidence was given by the Respondent that this is a community facility that was established by the Local Authority, which works with external funders Pobal and it is administered on this basis. There is no profit whatsoever from the facility which is in a disadvantaged area. The Pobal programme has a social objective to employ long-term unemployed.

The Complainant has made a prima facie case of discrimination on the age grounds. The Respondent’s main source of funding for the Complainant’s role is withdrawn in accordance with its rules when the employee reaches 66 years of age and is eligible for a state pension. I accept the Respondent’s evidence that the facility does not have alternative funding for the Complainant’s role and that it is not within their gift to be able to continue to employ the Complainant after 66 years of age in a not-for profit facility. It is a separate legal entity to the Local Authority. In reaching 66 years the Complainant is then eligible for the state pension. I have taken into account the case-law opened by the parties, and in particular the decision in Hamill v Scouting Ireland DEC-E2018-002 where the Complainant did not have a mandatory retirement age. I find the Complainant has not been discriminated against on the age ground.

It would have been preferable if the Respondent had engaged with the Complainant in advance regarding his retirement in accordance with best practice. However, the Industrial Relations Act 1990 (Code of Practice of Longer Working) Declaration Order 2017, was made on 20 December 2017 and does not apply in this instance.

Given the sensitive nature of the material contained in this Decision, I have exercised my discretion to anonymise the parties to the Decision.

I find that the Complainant has not been discriminated against by the Respondent on grounds of age in terms of Section 6 (2) of the Employment Equality Acts 1998-2015 when he was dismissed due to being over 66 years of age.

Age discrimination, withdrawal of funding, objective grounds to justify retirement, dismissal