Complainant

Respondent

Anonymised Parties

A Gatekeeper

A Rail Company

Representatives

Gilvarry & Associates Solicitors

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-00012095-001

23/06/2017

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

CA-00012095-002

23/06/2017

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

CA-00012095-003

23/06/2017

These complaints had previously been heard on 27th February 2018 by an adjudicator. This adjudicator subsequently left the WRC and no decision was issued. The complaints were allocated to a different adjudicator for a new hearing on 13th November 2018 but at the request of the complainant’s representative the adjudicator agreed to recuse himself. A new hearing with a different adjudicator took place on 18th January 2019. The complainant withdrew complaint CA-12095-001. The complainant submits that she was victimised by the withdrawal of a severance scheme following her claim to the respondent that she was discriminated against over the proposal to retire her at the age of 66. The worker also claims that she has a dispute with the employer over their refusal to honour her contractual retirement age and their refusal to allow her to proceed with a severance scheme.   This decision and recommendation may be read in conjunction with Adj-00016415. I have taken the decision to anonymise this decision.

This complainant withdrew this complaint.

The complainant commenced employment on 13th September 1984 as a gatekeeper and was issued a contract of employment that provided for a retirement age of 70.

In 2000 the complainant entered the respondent’s pension scheme and paid arrears of pension contributions back to 1995. A new pay deal was negotiated in 2003 between the respondent and the employees and the complainant was on the national negotiating committee but was not aware of any changes in age of retirement that would apply to her. There was no change to her retirement age either mentioned or agreed either in 2000 or 2003. The complainant detailed that the HR Manager at the time Mr A advised her that her retirement age would remain 70 and not 65 (later changed to 66), albeit her pension contributions would cease at 66.

Over the years, changes in technology has resulted in an increase of automation of railway gates and the complainant has been providing relief services to the respondent.   In 2016 she was advised that the retirement age was 66 and that she advised the respondent that this was unacceptable as her contract said 70. Around 14th April 2017 the complainant was offered voluntary severance as she was advised that there was an excess of gatekeepers and that the offer was a once-off offer. The complainant accepted the offer of a voluntary severance package but when she confirmed acceptance on 5th May she was told that she was too late and would have to wait for the next scheme and no scheme has been offered since then. She was compulsorily dismissed on 5th February 2018 with effect from 24th February 2018.

It was put forward that but for protesting at the illegal discrimination owing to age and threatening the respondent to proceed with a complaint under the equality legislation, the complainant’s offer of a severance package would not have been rescinded.

The complainant detailed that this amounts to prima facia evidence of penalisation/victimisation under the Acts. Case law cited included EDA 1710 Glavey v Connaught Airport, Valerie Cox v RTE, Mitchell v Southern Health Board [2001 ELR 201, Coillte Teoranta & O’Dwyer [EDA 064].

Evidence of Mr B –

Mr A who had also worked as a gate keeper gave evidence that he also did not know that his retirement age had changed from 70 to 66. It was also his evidence that he had confirmed his acceptance of a severance package but the offer was rescinded. Mr A confirmed that he is pursuing his complaints through the WRC.

The respondent detailed that the complainant was part of the national negotiating committee who reached an agreement which provided for an option for gate keepers to join the respondent’s pension scheme. The complainant received an information booklet referring to the scheme which details that normal retirement age was 65. This retirement age was later increased to 66. The agreement reached in 2003 was given statutory effect and the terms and conditions of gate keepers, including the complainant, were thereby amended to reflect the terms of the agreement. It was outlined that the complainant cannot on one hand accept the benefits of the pension scheme and at the same time assert that she is not bound by the conditions attached to them, such as the retirement age.

It was denied that any gate keeper, who was a member of the pension scheme, remained working after the age of 66. Only those who were not a member of the pension scheme may have been permitted to stay on until the age of 70 subject to a medical. In 2011, 2013 and 2015 the complainant would have been supplied estimates for voluntary severance predicated on a retirement age of 65.

Evidence was provided of the agreement reached on Friday 20th June 2003 and which detailed under Section 5 “resident level crossing keepers are eligible to join existing XYZ Wages Grade pension scheme subject to the rules of the scheme”. Also, Section 5(d) under retirement age it detailed that “crossing keepers will be required to retire from the Boards’ service no later than age 65”. This is also set out in SI 93/2016

It was denied that the complainant had been victimised by her exclusion from the voluntary severance scheme. She had been provided voluntary severance estimates in 2011, 2013 and 2015 and did not accept them at those times and on other occasions had been informally advised by HR of potential voluntary severance figures. The provision of an estimate is not a guarantee of a voluntary severance package being granted. It was not denied that the respondent knew of her dissatisfaction with her retirement age but this did not impact on them not proceeding with a voluntary severance package and it was denied that she had ever been offered it.

Case law cited included Hospira v Ropert EDA 1315, Seldon v Clarkson Wrights and Jakes [2012] UKSC, McLoughlin v Great Southern Railway [1944].

Section 6(1) of the Employment Equality Acts 1998 and 2004 (the Act) 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 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,

Section 34(4) of the Act provides for certain savings and exceptions relating to the family, age and disability grounds. Subsection (4) of that Section provides: -

(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.

The Act gave effect in domestic law to Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (the Directive).

Recital 14 provides: -

“This Directive shall be without prejudice to national provisions laying down retirement ages.”

Recital 25 provides: -

The prohibition of age discrimination is an essential part of meeting the aims set out in the Employment Guidelines and encouraging diversity in the workforce. However, differences in treatment in connection with age may be justified under certain circumstances and therefore require specific provisions which may vary in accordance with the situation in Member States. It is therefore essential to distinguish between differences in treatment which are justified, in particular by legitimate employment policy, labour market and vocational training objectives, and discrimination which must be prohibited.

Section 74 of the Employment Equality Acts sets out the definition of Victimisation as follows

(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to —

( a ) a complaint of discrimination made by the employee to the employer,

( b ) any proceedings by a complainant,

( c ) an employee having represented or otherwise supported a complainant,

( d ) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

( e ) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000or any such repealed enactment,

( f ) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

( g ) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

Section 85A (1) of the Act states: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”   This means that the Complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the Respondent. In Determination EDA082 McCarthy v Cork City Council the Labour Court pointed out that 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 facts proved. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.

In Melbury Developments v Arturs Valpeters the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a 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". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

In Department of Defence v Barrett (EDA 1017), the Labour Court held as follows in respect of victimisation:

“Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution. Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such “measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment”

The Labour Court in the above case highlighted the test for Victimisation as follows:

1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

2. The Complainant was subjected to adverse treatment by the Respondent, and,

3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.”

The complainant at the hearing outlined that she made the respondent aware she was unhappy with what the complainant regarded as a discriminatory retirement age and would be pursuing this further. The respondent did not dispute that the complainant had protested over the retirement age. I am satisfied that the complainant satisfies the first step of the test, namely had taken an action referred to in s 74(2). The complainant details that the respondent rescinded an offer of a severance package. I have examined the documentation in detail and I do not find any evidence that the complainant had been offered a severance package. I find that the documentation which the complainant received was just for her information. The complainant does not pass the second step of the test and I, therefore, do not find any evidence of adverse treatment in relation to her protected Act.

I find that the complainant has failed to establish a prima facie case of victimisation on the age ground and the complaint is therefore not well founded and I dismiss the complaint.

The worker seeks a recommendation that her retirement age is 70 and that she should be entitled to work until then without being forcibly retired in breach of her contract.   She also expressed upset at the manner in which she found out that the employer was proceeding with her retirement whereby she was no longer rostered for work and that no retirement function/party had been offered to her which would be the norm.

The worker is also looking for a recommendation that the severance scheme which she had been offered and accepted should be provided to her.

The employer disputes that there was a breach in the complainant’s contract and details that the worker would have known that her retirement age had changed from 70 to 65 later to 66 and that the details of this pension scheme are governed by a statutory instrument as a result of her signing up to the pension scheme.

The employer denies that the worker was ever offered a severance package in 2017 and that she was only ever offered calculations. The employer denied that she was victimised.

It is clear that the worker was very upset at what she saw as a breach of her contract by the employer by the change in her retirement age from 70 to 66. Having reviewed all the documentation and evidence, I find that the worker should have been aware of the terms of the pension scheme that she signed up for which included a change in the retirement age. It would have expected that there would have been more communication with the worker near to her retirement date including organising the normal retirement function for her after her many years’ service.  

With regards to her dispute that a severance package had been offered and withdrawn I do not find that the worker was offered a severance package but I do find that there should have been better communication to her around what she saw as an offer of a severance package.  

Based on all of the above, my recommendation is that :

The worker should be offered whatever is the normal arrangements for those who retire, such as a retirement function/party if this has not already been done.

The employer should improve their communication procedures with regards to clearly stating that severance calculations are just that and not offers of a severance package.

Due to the unique circumstances of her case, the employer should pay the worker €500 for the upset and the poor communication.

CA-00012095-002

I find that the complainant has failed to establish a prima facie case of victimisation on the age ground and the complaint is therefore not well founded and I dismiss the complaint.

CA-00012095-003

My recommendation is that :

The worker should be offered whatever is the normal arrangements for those who retire, such as a retirement function/party if this has not already been done.

The employer should improve their communication procedures with regards to clearly stating that severance calculations are just that and not offers of a severance package.

Due to the unique circumstances of her case, the employer should pay the worker €500 for the upset and the poor communication.

Victimisation, penalisation, equality, discrimination, age, IR Act