Complainant

Respondent

Parties

Siobhan Mac Cobb

Trinity College Dublin

Representatives

O'Mara Geraghty McCourt O'Mara Geraghty McCourt Solicitors

Darragh Whelan IBEC

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-00026439-001

21/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00026440-001

21/02/2019

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 77 of the of the Employment Equality Act, 1998 and has submitted that she was discriminated against by her employer by reason of her age (CA-00026439-001).

This Tribunal did not hear any evidence in relation to complaint CA-0002644-001.

The Complainant had been employed by the Respondent Institution since August 1981 and retired as Assistant Professor on the 30th September 2018 under compulsory retirement conditions. At the Complainants   retirement course organised by the Respondent on 26th and 27th April 2018, the Complainant was informed of the option of returning to work for a further year and invited to seek information from the Pensions Department in the college.

Since 2009, the Complainant had employed graduates, supported postgraduate studies and developed a new service in schools for students with complex needs in collaboration with and funded by the National Behaviour Support Service, Department of Education and Skills, and more recently their National Council for Special Education (NCSE). The Complainant set up an account at that time amalgamating funding from other projects into which yearly amounts to cover salaries and travel and subsistence expenses were lodged.

The Complainant had no direct access to the account as the Director of the Department (hereinafter referred to as the Director) took over responsibility in August 2015. The Director had signed off on all spending from that account including employment submissions and Travel and Subsistence expenses.

The Complainant submitted that the work of her research and practitioner team had been recognised as extremely valuable in recent years. Since December 2017 plans by three governmental departments to extend its scope unfolded. This collaboration was expected to continue, and subsequently over several months, funding mechanisms were explored to this end. In May 2018, a three year tender process was identified as the best way forward for collaboration between academia and practice providing a theoretical and practice based evidence from which to grow the new occupational therapy service.

This tender would allow the two senior members from the team to bring their expertise and research skills into leadership roles and transfer their employment into the new service, once a supervision and governance was in place. While employed for the specific purpose for periods of five and eight years, they had undertaken postgraduate studies and were now regarded as experts in this area in Ireland.

In May 2018, the Director   had been updated on the recognition of the work and of the plan to maintain academic partnership and to integrate the employment of the two individuals into this new agency using the tender process as required by the Department of Finance rules. The Complainant told him that the NCSE had asked to extend the contracts of the two individuals from 20th August to 20th December 2018 to cover this tender application process. They had money put aside to cover salaries and expenses for this period.

On the 5th June 2018, the Director discovered that there was a deficit of €5,405 in the account. The Complainant demonstrated to him that in costing the salaries for the therapists she had followed the procedures in the School and he agreed. The Complainant noticed that the travel and subsistence amount had gone over budget and that there was an unexpected cost related to postgraduate fees. The Director said that he would investigate the deficit with   the Financial Administrator and now Acting School Manager. Following that meeting the Complainant contacted the NCSE regarding the expenses and was reassured that as all trips were at their behest, that on provision of appropriate documentation from the finance department to the Department of Education and Skills that it would be reimbursed in full. From that date in June and until the end of September 2018, the Complainant contacted Payroll and others in the financial system to identify the cause of the deficit and get verification of specific aspects of it.

On the 7th June 2018 the Complainant sought a meeting with the Financial Administrator /Acting School Manager and the soonest available date was 27th June 2018. The Complainant sought a meeting with the Head of the School of Medicine to discuss the deficit, the continuing employment of the two therapists, and the tender application on the 16th July. He also invited the Director and the Financial Administrator. The Complainant was concerned about how the matter was being dealt with so she sought a meeting with the Dean of the Faculty on the 14th August 2018. At this juncture, it was known that the Director was resigning the Headship and did not want to continue. The election usually occurs during the month of June but had not occurred yet.

On the 13th June 2018, the Director emailed the Complainant and copied the Dean of the Faculty and the Financial Administrator stating that he estimated that the deficit was likely to be €44,000. Without any evidence as to its cause, he considered that it was the responsibility of the NCSE, and

that it should be paid in full before any extension of the contracts would be approved. The Complainant was told not to invoice for the money already offered by the NCSE to extend their contracts.

At the 27th June 2018 meeting, the Financial Administrator stated that there was no place in Trinity College for the therapists, and that there will be no tender. The Complainant suggested that the cause of the deficit was a failure in the School to follow College procedures in the application of staffing proposals. Furthermore there was poor financial oversight on the travel and subsistence expenses. She acknowledged that an extra 10% cost should have been added in the School’s HR procedures. When asked to indicate the financial impact on the account, she referred the Complainant elsewhere and failed to give correct information. The Complainant told her that the Department of Education would recoup the travel and subsistence expenses that were over budget on submission of appropriate documentation. The Complainant asked her for that information.

On the 2nd July, 2018 with regard to the Complainant’s application for returning to/continuation in

work the Complainant sought and was promptly given information from ‘Pensions’.

This included “All applications must be signed by your Line Manager, Head of School and the Dean of the Faculty and f you apply for the interim measure, you must retire on 30 September 2018 and draw down your retirement benefits at that date and it will not be possible for the Complainant to reverse this decision.”

The Complainant later asked the HR person in the Faculty for advice regarding the cost to the Discipline for my return to work for two days a week for a year.

On the 16th July 2018 the Complainant prepared a detailed report for the Dean of the Faculty prior to the meeting, and had requested that some of that meeting be in private. The Complainant

asked for permission for a colleague to attend. The Complainant believes he had not read the report before the meeting. When informed by the Complainant of the root cause of the deficit to be a failure in the Schools HR procedures, he termed it as ‘mistake’. The Director and the Financial Administrator did not accept any responsibility for the deficit and both stated that it should be recouped from the Department of Education. The Dean said that the Complainant should send an invoice for recouping the deficit. The Complainant believed this was outside of her academic role and professional competency. He discussed the extension of contracts and the issue of the tender.

On the 17th July 2018, the Dean emailed that the contracts should be extended, and the tender applied for. On the 24th July 2018, formal notification was given from HR in the School that the Director was stepping down as Head of Discipline. Nominations for the new Headship election were to be submitted by 1st August 2018. Subsequently, the Director removed voting rights from two senior colleagues who were listed as eligible to vote on the College Register. The HR Administrator in the School informed the Complainant that the Director and the Dean made that decision. The Complainant believes it was known that they were supporters of a colleague who would later declare as a candidate.

The 1st August 2018 was the closing date for Nomination of Headship and the current Director had decided to go for re-election. The Complainant was informed by a colleague   that the Director had told her that he wanted to prevent the tender application and future employment related to it, and that he sought re-election to oppose another colleague, because she supported the work.

On the 14th August 2018 the Complainant met with the Dean of the Faculty. Having discussed aspects of the situation, and possible research contacts, she dismissed the Complainant’s concerns about the Director and strongly urged her to apply to continue in work. She brought the Complainant into the office of the Faculty HR Administrator. Having confirmed the approval of the two colleague’s extension of contracts, she asked her to assist the Complainant in completing the application process.

On the 15th August 2018. The Complainant sent the application form and covering letter to the Director seeking continuation in work two days a week for one year, if successful with the tender application, so that the Complainant could further guide development and publication of research and make a contribution to the curriculum ensuring that Trinity students would be well placed for employment in the expected roll out of the new NCSE service. The cost was €15,833, with €9,400 to be recouped from the tender amount and €6,433 to be provided by the department.

On the 15th August 2018, the Complainant was notified that the outcome of the election for Headship was a draw. On the 22th August 2018, the Complainant requested a meeting with the Director to update him on the deficit. On the 22nd August 2018, the Complainant received a letter from the Director that he refused the Complainant’s application for return to work /retention. He had “consulted with Head of School, Faculty Dean and HR. The request is not supported as there is no business need for this retention, and the closing date for submitting any such application was 31st May 2018. This final decision has been agreed at School and Faculty level.”

On the 28th August 2018, the tender was published. The tender was for was the employment of two senior members, the development of evidence informed inclusive education approaches with an appropriate governance structure for this new service. The tender period was for December 2018 to December 2021. Submission date was 25th September 2018. The Complainant assisted three other

academics and the two colleagues in preparing the tender application.

On the 28th August 20018 the former colleague withdrew from the election process. On the 20th September 2018, the Director circulated an email to the Head of the School and several others in which he detailed his refusal to support the tender application on the grounds the existing programme had accrued a financial overspend, that the Complainant had failed to recoup the money, that the work to date was not relevant to the Discipline and there was no exit plan for the two colleagues to be employed by the NCSE who he considered as a liability to the Academic Institution.

On the 20th September 2018, the Head of the School recirculated the email from the Director with his own comments that “for reasons outlined in it that he was not in a position to approve the proposal at this time. There may be a way to adapt the proposal to take into account the

concerns expressed, in particular that it should have a research and/or teaching remit, and resolve the current overspend and if so, it may be possible to reconsider.”

On the 24th September 2018, the Complainant updated the Head of the School on her estimate

of the deficit amount and that financial verification was not provided by qualified staff in an appropriate format for invoicing. The Director was confirmed in his position and accordingly the Complainant was forced to retire on the 30thSeptember, 2018.

The Complainant submits that in order to determine whether the Complainant has established a prima facie case, a tree tier test is generally employed. The Complainant must first establish that she is covered by the relevant discriminatory ground, secondly she must establish that the specific treatment alleged has actually occurred and thirdly it must be shown that the treatment was less favourable that the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

Further, as outlined by Mr Justice McKechnie in Donnellan v The Minister for Justice,

Equality and Law Reform, the Commissioner of An Garda Siochana, Ireland and the Attorney General [2008] IEHC 467 at paragraph 79: “…it is clear that the imposition of mandatory retirement age is discriminatory, perse, under the Directive, in that, it places one person at a disadvantage to another, who would otherwise be in thesame situation, on the grounds of age alone.”

It is submitted that on this basis , the Complainant has established a prima facie case of discrimination and the burden of proof shifts to the Respondent.

It is submitted that the Complainant’s application to continue in work related to continuing her

academic role as a researcher and was not related to continuing teaching responsibilities within the

Department. Within the Academic Institution, the Complainants academic role as researcher was

Independent of the Director. At the time of the decision to refuse the Complainant there was clearly

a continuing role for research within the department. Three other academics were preparing the

tender application led by the Complainant. Proposed major developments had already been

announced with Government funding for a three year period.

It is submitted that this was clearly within the research aspect of the business need of the university

and in making the decision, the Director,stepped outside of his role. He did not seek any information

about the Complainant regarding the proposed tender application amount or discuss any aspect of

her application and its possible contribution to the business of the academic institution before

making the decision. The cost of the Complainant continuing in employment was €15,833 and the

tender amount was for €1,100,000.00.

It is submitted that the reasons put forward by the Respondent do not satisfy the test of objective

Justification in the circumstances of the Complainant’s work and therefore the Complainant was

discriminated against on grounds of her age in refusing to let her employment continue.

This Complainant was received by the Workplace Relations Commission on the 21st February 2019.

It is submitted that the Complainant alleges that she has been discriminated against on the grounds of age with regards compulsory retirement. The Respondent respectfully contends that no discrimination has occurred, and that the Complainant has failed to satisfy the burden of proof in this regard.

The Respondent implemented the Complainant’s retirement entirely in accordance with the University pension scheme rules and government policy. Under the University’s Master Pension Scheme, the compulsory retirement date for members was 30 September following her 65th birthday.

On the 5 April 2018, the Department of Education & Skills issued Circular to all Employers and Management Authorities in the Education and Training Sector. The Circular provided for certain public servants who were due to retire between 5th December 2017 and the enactment of the new legislation (subsequently 26th December 2018) to stay in employment until their 66th birthday (30 September following their 66th birthday in the University’s case) subject to business needs.

An application process for consideration for retention for a further year under this interim measure was put in place in the University. The process required the completion of Appendix A and Appendix B of the Circular and formal sign off by an applicant’s line manager.

On the 17th April 2018, the Complainant was informed of her retirement options. The letter also

contained information on post-retirement re-engagement, including information on the recently released government Circular. The letter advised that further information could be requested from the University Pensions Office.

The Complainant attended a pre-retirement planning course on 26 and 27 April 2018, at which attendees were further informed of the option to stay on for a further year and of the necessity to liaise with the relevant manager/head if interested in the option. Attendees were directed to the HR website which contained information on the application process and of the closing date of 31 May 2018 for receipt of completed applications.

On the 2nd July 2018 the Complainant contacted the Pensions Department confirming her attendance at the April 2018 pre-retirement course and enquiring into availing of the retention option. The Claimant was provided with the general information on the option and was advised to discuss the matter with her Head of School. The Complainant subsequently wrote to her Head of Department on 13 August 2018, seeking that she be retained in employment post her retirement in a limited capacity.

The Head of Department’s responding letter of 22 August 2018 advised of the 31st May 2018 closing date for applications and of the absence of a business need to support her retention.

On the 26th March 2019 the University received notification by the WRC of the Complainant’s

complaint under the Employment Equality Act.

It is submitted that the Complainant alleges that she has been discriminated against on the grounds of age with regards her compulsory retirement. The University refutes this claim in its entirety and contends that the Complainant’s retirement was implemented entirely in accordance with the University pension scheme rules and government policy.

It is submitted that direct discrimination consists of two elements. The first is the less favourable

treatment of the Claimant and the second is the existence of grounds, in this instance age, for such treatment. Both elements must be satisfied for a claim of discrimination on the ground claimed to succeed. The Claimant has adduced no grounds to imply discrimination. The mere fact that the claim falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination.

Notwithstanding the Respondent’s rejection of the allegations presented by the Complainant, the Respondent submits that the Complainant has failed to discharge the burden of proof and, consequently, the claim cannot succeed.

It is submitted that It has been the well-established practice of the Equality Tribunal and the Labour Court to require a Claimant to present, in the first instance, facts from which it can be inferred

that they were treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited.

The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Mitchell, DEE011, [2001] ELR 201, where the Court stated:

“The first requirement is that the Claimant must establish facts from which it may be presumed

that the principle of equal treatment has not been applied to them. This indicates that a

Claimant must prove, on the balance of probabilities, the primary facts on which they rely in

seeking to raise a presumption of unlawful discrimination.

It is only if those primary facts are established to the satisfaction of the Court, and they are

regarded by the Court as being of sufficient significance to raise a presumption of

discrimination, that the onus shifts to the respondent to prove that there is no infringement of

the principle of equal treatment”.

In Margetts v Graham Anthony & Respondent Limited, EDA038, the evidential burden which must be discharged by the Claimant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows:

“The mere fact that the Claimant falls within one of the discriminatory grounds laid down

under the Act is not sufficient in itself to establish a claim of discrimination. The Claimant

must adduce other facts from which it may be inferred on the balance of probabilities that an

act of discrimination has occurred.”

The Respondent submits that it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised. The Respondent submits that the Complainant has failed to discharge this burden of proof and, consequently, the claim cannot succeed.

It is submitted that the University implemented the retirement provisions of the Master Pension Scheme in full in respect of the Complainant, ensuring that she received the added years benefit

available under the scheme, which was approved by the Department of Education & Skills.

In effecting her retirement on the 30th September 2018, the University did not discriminate against the Complainant by reason of her age or any other reason. The Complainant was treated no differently to her colleagues, who had similarly reached compulsory retirement age under the scheme.

It is submitted the government interim measure under the aforementioned Circular to be retained in employment beyond compulsory retirement of 65 years was the subject of much discussion in the media and indeed amongst colleagues in the University. This, coupled with the direct communications with her from the Pensions Office and her attendance at the pre-retirement planning course in April 2018, ensured that the Complainant was fully aware of the measure and of the application process to be considered for it.

The Complainant did not contact her Head of Department until the 13th August 2018 to express any interest in being retained in employment. As the closing date for applications had well passed, her replacement was in situ following an external recruitment competition and as there was no business need to retain her, the request could not be facilitated.

The Respondent adhered wholly to University pension scheme rules and government policy in implementing the Complainant’s retirement. The Respondent respectfully contends that no discrimination has occurred, and that the Complainant has failed to satisfy the burden of proof

in this regard.

In the circumstances of this matter, I have carefully listened to the evidenced tendered in in the course of this hearing by both parties.

Section 85A of the EEA 1998-2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by, or on behalf of, a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled and it requires the complainant to prove the primary facts upon which they rely in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. The appropriate test for determining is that if the complainant does not discharge the initial probative burden required the case cannot succeed.

It is now well accepted that the first requirement for a successful claim lies in establishing a prima facie case. In that regard, I am conscious of the Labour Court’s comments in examining the circumstances in which the probative burden of proof applies in employment equality cases. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, and stated that

“… the court should consider the primary facts which are relied upon by the Complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the Respondent ..”.  

In establishing the facts to meet the burden of proof resting on a Complainant, the Labour Court commented in Cork City Council v McCarthy [EDA 0821] as follows:

  “The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a fact or a set of facts which are proved in evidence. At the initial stage the Complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

Further, in Valpeters v Melbury Developments Limited [2010] ELR 64 it is stated as follows:

“Section 85A of the Act provides 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. What those facts are will vary from case to case 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 establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.

In the circumstances of this matter, I accept the bona fides of the Complainant and the all to common desire to continue employment in a workplace environment wherein you are well regarded and have achieved notable success. However, having considered the evidence from the Complainant and the Respondent, I have to find that the Complainant has not discharged the initial probative burden in respect of the allegation of discrimination by reason of age.

In particular, in coming to this decision, I have noted the letter of the 17th April 2018 from the Respondent to the Complainant in relation to “Retirement Options” and the option accepted as indicated and the Complainant’s attendance on the 26th and 27th April 2018 at the pre-retirement planning course. The Complainant was aware of the specific timelines and that notification of retention should be made to their employer no later than a specified date.

The Complainant did not contact her head of Department until the 13th August 2018 to express an interest in being retained in employment. In the circumstances of this case, the closing date for application had well passed and her replacement was in situ following an external recruitment competition.

The Respondent submitted that before retention is approved, the University should be satisfied that the applicant’s health, conduct and performance is satisfactory and that a business need exists to warrant retention, consequently there was no business need to retain the Complainant and her request could not be facilitated and I accept that submission.

Further,  Section 34(4) of the Employment Equality Act states:

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 case of Earagail Eisc Teoranta v Richard Lett [EDA 1513],   the Labour Court expressed the following view: ”as a matter of general principle, the termination of employment by the way of retirement should be distinguished from a dismissal on grounds of age. A retirement occurs where the employment comes to an end pursuant to a condition of employment which limits an employee’s tenure to the point at which they attain a specific age”.

Further, the Court found that: “an employer’s employment policy in relation to retirement can take effect as a contractual condition of employment which is, prima facie, protected by s. 34 (4) of the Act. However, in the Court’s view that could only arise where the policy is promulgated in such a manner that the employees to whom it applies either knew, or ought to have known, of its existence

Section 34 of the Employment Equality Act cited above provides a defence of objective justification in age discrimination cases and in the circumstances of this case is applicable.

I find that the Complaint (CA-00026349-001) made pursuant to Section 77 of the Employment Equality Act, 1998 fails

Discrimination Age