ADJ-00016645

Complainant

Respondent

Anonymised Parties

A Secretary

A Solicitor’s Firm

Representatives

Fiona Conroy, Cavan Citizens Information Service

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-00021450-001

29/08/2018

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

CA-00021450-002

29/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00021450-003

29/08/2018

Employment Equality Act 1998

The Complainant worked as a secretary for a town solicitor for 40 years. In January 2016 this practice was taken over by the Respondent and a transfer of undertaking occurred. The employment of the Complainant transferred at that time.

The Complainant was aged 67 years when she was dismissed. The reason for her dismissal in 4 January 2018 was expressed as follows:

“We all have to retire at some stage. For many decades, it has been standard practice for people to retire from employment at the age of 65. Many people retire before that age. Even though changes are being proposed to increase the age of retirement, it is still standard practice to retire at 65. In your case, you did not indicate a desire to retire at age 65. I did not request you to retire at 65. I was aware that you could not receive your pension until you are aged 66. In recognition of your loyal service, I decided to keep you on until you could receive your pension.

In or around the end of February 2017 I informally let you know that your retirement would most likely take place at the end of February 2018. This gave you every opportunity to be mentally prepared for this significant transition in your life. You refer to “letting me go.” This term is inappropriate. You are retiring, which everybody has to do at some stage. You are retiring later than most people do.”

The following facts are not in dispute:

The Complainant worked as a secretary for 40 years.

She had no contract or terms and conditions in writing.

There was therefore nothing agreed or in writing to establish a normal retirement age. The Complainant denies receiving any Employee handbook in 2010 or at any stage.

She was dismissed or as described by the Respondent, retired on an involuntary basis, in January 2018, a month after her 67th birthday.

She did not wish to retire

The reason given was that 65 is a normal age to retire

Before she was given her notice in January 2018 her work was not criticized nor was she led to believe that her work was anything other than acceptable.

The first time that it was even implied that her work was less than adequate was in her dismissal letter on 4 January 2018 when she was told that it was necessary to engage a new member of staff with the necessary technical skills and for the practice “to embrace technology that was required by a modern legal practice so that the viability and growth of the firm into the future is assured.”

As the Complainant was dismissed because she was aged 67 this is prima facie evidence of age-based discrimination. No objective justification is applicable because the reasons given at the Adjudication are based on assumption of poor performance based on age. If there was poor performance, like any employee, she should have been given an opportunity to improve before she was dismissed.

Terms and Conditions of Employment Act 1994

The Complainant was not given a contract or terms and conditions in writing.

She denies receiving an Employee handbook in 2010

Organisation of Working Time Act 1997

The Complainant was not paid two weeks holidays which were due to her at the time of her dismissal

Terms and Conditions of Employment Act 1994

The Respondent accepts that the Complainant was not given a contract, but she was provided with a handbook in 2010 although they cannot give evidence on this as they only took over the business in 2016.

Organisation of Working Time Act 1997

Two weeks holidays are conceded (€420 x 2) €840.00

Employment Equality Act 1998

The Respondent felt that 65 was the usual age at which people retire. This is within many industries and many jobs.

The Respondent believed that the Complainant would retire at 65. They were surprised when she said that she couldn’t retire due to domestic obligations that she had. They allowed her continue until she was entitled to receive her State pension and then they compulsorarily retired her after her 67th birthday.

The Respondent accepts that they did not criticize the Complainant’s work. They did so out of respect for the Complainant who had performed her duties loyally over 40 years.

The Respondent wanted to avoid criticizing the Complainant and for this reason did not raise the issues of poor performance with her.

However, her work was below par and this had a detrimental effect on the business. The practice had been taken over by the Respondent in 2016 and from then the practice needed to be modernized and stream lined. Technology was invested in by the Respondent and the Complainant proved unable to use this, even though the case management I.T. package was not complicated to operate and even though she received training to use it. In the view of the Respondent the reason that she was unable to learn or to up-skill was due to her increasing age.

The allegation that they discriminated against her on the basis of age is spurious. Businesses have to be able to adapt and to modernize. Discrimination cases fail to take account of the pressures that are on businesses and the obligations that are upon them to pay salaries, pay taxes, discharge a professional service to clients. The Complainant’s performance was below what was needed and this adversely effected the Respondent’s main obligation which is to provide a professional service to its clients. There is an age at which people become less able to perform and this should be reflected in the way a business in managed and the way that the law is applied.

Terms and Condition of Employment Act 1994

I find on the balance of probabilities that the Complainant did not receive terms and conditions of employment and I find this complaint to be well founded

Award: (€420 x 2) €840.00

Organisation of Working Time Act 1997

As this case is conceded I award the Complainant two weeks holidays

Award: (€420 x 2) €840.00

Employment Equality Act 1998

Law

Retirement imposed on an employee, constitutes a dismissal.

Adverse treatment in employment on the basis of age is prohibited under Article 2 of the General Framework for Equal treatment in Employment and Education 2000/78/EC. A defence to a claim for age-based discrimination is provided for in Article 6 (1) of the directive, if the difference in treatment is capable of being objectively justified by a legitimate aim. This provision came into effect in December 2006 and from then on, the principle of non-discrimination was regarded as a general principle of community law.

Domestic legislation on age-based discrimination is found in the Employment Equality Act 1998. Section 34 (4) of the EEA 1998 was amended in 2015 by section 10 of the Equality (Miscellaneous Provisions) Act 2015 to take account of the Framework Directive 2000/78/EC. The substituted section 34 (4) now reads:

Section 34(4) …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 –

(a) it is objectively and reasonably justified by a legitimate aim and

(b) the means of achieving that aim are appropriate and necessary.

Therefore, under Irish law the fixing of an age to compulsorily retire an employee is subject to objective justification by a legitimate aim if the means of doing so is appropriate and necessary.

What therefore is meant by “to fix” a retirement age?”  

Section 34 (4) only applies if a retirement age is fixed. Whether this occurs through a reliance on custom and practice (although this may not reliable if the employee does not know of it) or whether contained in a contract or employee handbook, the ordinary meaning of section 34 (4) is that the age is fixed.

Where a retirement date is not fixed in advance and not known of by the Complainant, the Labour Court has decided that section 34 (4) does not apply.

In Connaught Airport Development Ltd. V. John Glavey 2017 ELR the Labour Court found that section 34 (4) did not apply in respect of a case in which a senior bartender in an airport was compulsorily retired on his 65th birthday in circumstances where the Court did not accept that he had knowledge of – through contract or employment handbook or through advice from the Respondent – that the Respondent had a policy of fixing a retirement age at 65.

The Labour Court held: “In these circumstances the court must hold that the Respondent has not fixed a retirement age in respect of the complainant and that he was dismissed because of his age. Therefore, the court find that the Respondent cannot avail of Section 34 (4) of the Act. In such circumstances, it is not necessary for the court to consider a respondent’s arguments on justification for a retirement age of 65 years.”

The significance of this decision is that the Labour Court held that in order for section 34 (4) to apply, the fixing of a retirement age must occur in advance of the application of it to an employee and it must be known to the employee in advance of the application.

In the present case the Respondent seeks to rely on a 2010 employee handbook which contained a retirement age of 65 but which predated their tenure of the solicitor’s practice by 6 years therefore they could not have knowledge as to whether it was issued or not. Furthermore, they did not rely on this handbook clause when dismissing the Complainant. They admit that the handbook only came to their attention when preparing their defence to the WRC complaint. The Complainant’s evidence was that she never received it nor did she nor any other staff know of its existence.

In relation to the handbook I find that on the balance of probabilities the Complainant was not on notice of the fixed retirement age, of 65, contained in the handbook and that this retirement age was not applied when the decision to termination the employment was taken, as the Respondent were not aware of it themselves. Applying the Connaught Airport decision, I find that the Respondent cannot now rely on a section 34 (4) defence of objective justification because neither they nor she, were aware of the handbook clause, when the decision was taken.

So while I do not find it necessary to consider objective justification under section 34 (4) in this case, for the sake of completeness (and in the event that “to fix” a retirement age includes the application of a retirement age and is not limited to the fixing a retirement age in advance of applying it) I now address the defence, raised by the Respondent, that the Complainant was dismissed because as she got older that her work performance declined. I do so in the event that this matter proceeds to a higher court and what “to fix a retirement age” in section 34 (4) means, is queried.

Objective Justification

The defence that the Complainant seeks to rely is that the retirement was due to poor performance which the Respondent assumed was age related. Their rationale was that if the employment were to continue the Complainant’s work would further deteriorate and a decline in performance is an objective justification for retiring someone on age grounds.

I find that, if the Respondent had identified to the Complainant areas where they required her performance to improve and she failed to improve, there were lawful options available to them to exercise. This would be based on capacity to perform the tasks of the job, not her age. The Respondent in my view has wrongly conflated two things. An assumption that the Complainant would not have been able to improve her IT skills had she been asked, merely compounds the discrimination as opposed to justifies it.

As the email of 4 January 2018 shows the Complainant was not dismissed for poor performance. Poor performance is not mentioned in it. The first time that she heard a criticism of her work was at the Adjudication hearing. Rather she was dismissed for being 67 years old and while poor performance might have been available to objective justify their decision, this was not relied on in the dismissal letter but rather her age was cited (which is not capable of objective justification) and also an inference of succession planning, (which again might have been capable of amounting to objective justification but no evidence was given on this upon at the Adjudication hearing.)

In this way the evidence of the Respondent at the hearing fell between stools. If it were open for them to argue objective justification (and under Glavey case it is not) but if it were, they cannot do so in circumstances where they firstly expressly say that the reason for dismissal was age; secondly they now say that the real reason was poor performance, due to age (which they did not give her an opportunity to improve before dismissing her) and thirdly for succession planning (which they did not give evidence of at the Adjudication hearing.)

I find this complaint to be well founded for the reasons outlined above but mainly because the reason for dismissing the Complaint expressed to be because she was 67 years old. There are 70 and 80-year olds within the labour force, who are more productive, able and capable of change than some 20-year olds. Terminating someone’s employment, on the basis of age, is discriminatory which, unless it is objectively justified, is unlawful.

The award is made on the basis of the loss suffered by the Complainant since the date of her dismissal. I think it appropriate that the Complainant should be placed in the position that she would have been in had the discrimination not occurred.

AWARD: €24,000.00

Age discrimination dismissal