ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | A Traffic Warden | A Local Authority |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00011919-001 | ||
CA-00011919-002 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant details that he was not notified in writing of changes to his terms of employment and that he was discriminated against on the basis of age. Additional correspondence was forwarded to the WRC up until December 2018 regarding the claims which parties were given an opportunity to respond to. |
Summary of Complainant’s Case: CA-00011919-001
The complainant represented himself on day 1 of the hearing and was represented by his representative on day 2.
The complainant outlined that he interviewed for the role of Traffic/Litter Warden in 1998. On 1st October 1998 he was advised to call into the respondent’s office where he was provided with a contract of employment which he signed on 4th October 1998. There was no reference in this contract to a retirement age. The contract details that he “accepts and agrees to bound by the above terms and conditions…”.
The complainant detailed that he never received what the respondent refers to as “Qualifications and Particulars of Employment” and which the respondent advises accompanied the contract of employment. It was put forward by the complainant that no reference was made to such qualifications and particulars of employment within the contract of employment and there is only mention that he is bound by the “above” terms. No “qualifications and particulars” are detailed anywhere “above”.
When the complainant requested a copy of his personnel file in 2017, there was no copy of such “qualifications and particulars of employment” on his personnel file. It was also further put forward by the complainant that in recent times, he has been provided with two copies of the “particulars of employment”; one which detailed his retirement age to be 65 and another which details that his retirement age would be 66.
In evidence the complainant detailed that the addition of these qualifications and particulars and/or the differences between them were in effect, a change to his terms of employment which he was never notified of.
The complainant outlined that his employment was terminated on 3rd August 2017.
Case law highlighted included Donnellan v Minister for Justice Equality and Law Reform IEHC 467, Reilly v Drogheda Borough Council [2008]IEHC467, Giorgiev C-250/09 and C268/09. |
Summary of Respondent’s Case: CA-00011919-001
The respondent details that the complainant received a contract of employment. This contract of employment did not detail a retirement age but his retirement age was detailed within the qualifications and particulars ofhis employment, as well as his pension scheme and correspondence sent to the complainant in advance of his retirement.
The respondent outlined that the complainant knew that the “qualifications and particulars” were the basis for the role that he applied for originally. While the “qualifications and particulars” may not have been on his personnel file when he queried the issue of retirement; it always formed part of his terms and conditions of employment and therefore the respondent refutes the claim that the terms and conditions were changed.
It was detailed by the respondent that the Town Clerk who would have signed the contract with the complainant was of the opinion that the complainant was given a copy of the qualifications and particulars on the same day that the contract was signed. This former Town Clerk was not in attendance to give direct evidence.
Case law cited included UD891/2009 & MN924/2009 Hannah Moloy v Connacht Gold, Mysie Foran v Candela Ltd t/a Actons Hotel UD/1009 |
Findings and Conclusions: CA-00011919-001
Section 5 of the Terms of Employment (Information) Act 1994 provides that
“Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4or6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than— ( a) 1 month after the change takes effect, or ( b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.
The complainant outlines that the ‘introduction’ of a retirement age was a change in his terms and conditions of employment. The respondent details that this retirement age was always a condition of his employment.
I note that while there is a signed copy of a contract of employment, there is no reference in this contract to any retirement age and there is also no mention to any other document namely, “qualifications and particulars”. It is also noteworthy that no satisfactory explanation was given as to why there were two copies of “qualifications and particulars” provided at the hearing with two different retirement ages detailed purporting to relate to the complainant’s terms of employment.
Based on all the evidence, I find that the “retirement age” contained in the “qualifications and particulars” was a change to the complainant’s terms and conditions of employment. I find that the claim is well founded. |
Summary of Complainant’s Case: CA-00011919-002
The complainant represented himself on day 1 of the hearing and was represented by his representative on day 2.
The complainant outlined that he interviewed for the role of Traffic/Litter Warden in 1998. On 1st October 1998 he was advised to call into the respondent’s office where he was provided with a contract of employment which he signed on 4th October 1998. There was no reference in this contract to a retirement age. The contract details that he “accepts and agrees to bound by the above terms and conditions…”.
The complainant detailed that he never received what the respondent refers to as “Qualifications and Particulars of Employment” and which the respondent advises accompanied the contract of employment. It was put forward by the complainant that no reference was made to such qualifications and particulars of employment within the contract of employment and there is only mention that he is bound by the “above” terms. No “qualifications and particulars” are “above”.
When the complainant requested a copy of his personnel file in 2017, there was no copy of such “qualifications and particulars of employment” on his personnel file. It was also further put forward by the complainant that in recent times, he has been provided with two copies of the “particulars of employment”; one which detailed his retirement age to be 65 and another which details that his retirement age would be 66.
The complainant outlined that he wrote to other similar organisations requesting under Freedom of Information whether other employees had been allowed to stay on after the age of 66 and detailed that the reply had been that there had been employees who stayed on after the age of 66.
In cross examination he confirmed that he became aware of a retirement age in 2014 when he was invited to attend a superannuation information talk with the respondent. He detailed that while he attended this event, he did not believe that it was relevant to him and attended as there was a lunch and a day out of work.
The complainant put forward that other employees within the respondent’s organisation and within similar type organisations were given the opportunity to stay on after their retirement age and the complainant should have been given this opportunity. The complainant outlined that his employment was terminated on 3rd August 2017.
Case law cited included Donnellan v Minister for Justice Equality and Law Reform IEHC 467, Reilly v Drogheda Borough Council [2008]IEHC357, Giorgiev C-250/09 and C268/09
It was outlined that the complainant had established a prima facia case and the burden of proof was with the respondent and that they had failed to ensure that the retirement age was objectively justified by a legitimate aim. |
Summary of Respondent’s Case: CA-00011919-002
It was confirmed that the complainant was engaged as a Traffic Warden from 19th October 1998 and that the complainant retired at the normal retirement age. It was also detailed that no other employee, engaged similarly to the complainant, were permitted to work on beyond the retirement age of 66 except for “new entrant” employees for whom separate superannuation rules apply and for which no maximum retirement age applied for such a group of workers. The complainant however, is not a “new entrant” and therefore a maximum retirement age of 66 applies for him and it was for this reason that his employment ceased.
It was denied that he was discriminated against on the basis of age and it was outlined that even if there had been no reference to a retirement age the complainant was well aware of the retirement age from his pension scheme, as well as correspondence received from the respondent and the complainant’s attendance at the pension talk and he would also having known the age that other colleagues similar to him, would have retired at. It was detailed that between 2015-2017 a total of 66 employees retired of which 33 retired at 66 years, 9 retired at 65 and 24 retired with a lower retirement age than 65. It was refuted that any other employees similar to the complainant were allowed to stay on past the age of 66.
The respondent outlined that it had a legitimate aim in setting a retirement age as it delivers public services which it needs to do by engaging in manpower planning. With a limited budget the respondent must do necessary financial planning for inter alia, staff pension and thus the retirement policy is a legitimate employment policy which applies to all equally. It was outlined that the complainant had failed to satisfy the test set out in case law and had failed to identify a comparator.
Case law referred to included UD891/2009 and MN924/2009 Hannah Molloy v Connacht Gold, Minaguchi v Wineport Lakeshore Restaurant DEC-E2002-202, Melbury v Valpeter EDA/0917, Bilka-Kaufhaus Gmb v Karin Weber von Hartz [1986] ECR 1607 |
Findings and Conclusions: CA-00011919-002
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’) 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.
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. Article 6 (1) of the Directive provides: - Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they 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.
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”.
It is accepted that the Complainant’s contract of employment did not contain any expressed term of retirement. Retirement age is contained within the document “qualifications and particulars” which I have already found that there is no evidence to support that the complainant received these “qualifications and particulars” when he commenced his employment.
The complainant signed to confirm his attendance at this training and it is clear that from at least 2014 the complainant was aware of the existence of a retirement age. While the complainant details that he only attended for the lunch and a day out of the office, I cannot accept that the complainant was not aware of the purpose of that training day and what information was contained within it.
Between 2015 – 2017 the respondent detailed that there was a total of 66 employees who retired, 33 at the age of 66, 9 at the age of 65 and 24 retired at an age younger than 65. While the complainant disputed this and advised of personnel who may have stayed on based on his Freedom of Information request, it is noted that no direct evidence was available to enquire further on this correspondence that he received. I am not satisfied that (with the exception of “new entrants” who do not have a maximum retirement age), any other employee remained in employment after the age of 66. As outlined in High court Judicial Review 2009 1104 IR by Justice Hedigan I find, therefore, that the complainant would have had a “broad awareness of the retirement age”. I have noted the authorities cited by the complainant including Donnellan v Minister for Justice Equality and Law Reform IEHC 467 which held that where an employee is forced to retire at a particular age, it may give rise to prima facie discrimination within the meaning of Article 2. However, in this instant case the complainant did not ‘suddenly’ find out that a retirement age applied to him. It is clear through custom and practice as well as knowledge acquired by him at the training day that there were various retirement ages which did not exceed the age of 66 (with the exception of the new entrants which did not apply to him). I am satisfied that there was a retirement age in existence in respect of the Complainant and that the Complainant knew or ought to have known of its existence for his category of employment. In the circumstances, I find that the complainant has failed to establish a prima facie case of discrimination on the age ground and I dismiss the complaint. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
CA-00011919-001 I find that the claim is well founded and award the complainant €2,500. CA-00011919-002 The Complainant has failed to establish a prima facie case of discrimination and therefore his claim fails. |
Dated: 17.5.19
Workplace Relations Commission Adjudication Officer:
Key Words:
terms of employment, equality, age |