ADJ-00011207

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00011207

Parties:

	Complainant	Respondent
Parties	James Peter Maloney	Ability West Clg

	Complainant	Respondent
Anonymised Parties	James Peter Maloney	Ability West Clg

Representatives

Gráinne Quinn, BL, instructed by DM O'Connor Solicitors

Sarah Conroy,Beale & Company, Solicitors

Complaint:

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-00014928-001	11/10/2017

Date of Adjudication Hearing: 17/12/2018

Workplace Relations Commission Adjudication Officer: Ray Flaherty

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, andfollowing the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant responded to an advertisement for a position of permanent, part-time bus driver with the Respondent, who provides residential and respite care services to intellectually disabled children and adults. The Complainant was successful in his application and was provided with a job offer both verbally and in writing. However, subsequent to the Complainant’s acceptance of the job offer, the Respondent realised that he was over 65 years of age and, as they have a retirement policy with a mandatory retirement age of 65, the job offer was withdrawn. During subsequent discussion the Respondent offered the Complainant a one-year fixed term contract. The Complainant rejected this offer and submitted a complaint, under the Employment Equality Act, 1998 – 2015, for discrimination on the age ground to the Workplace Relations Commission on 11 October 2017. An initial hearing took place into the Complainant’s complaint on 22 February 2018. However, the matter was subsequently referred to me for de novo investigation and I duly conducted a Hearing in this regard on 17 December 2018. In addition to considering the original complaint as submitted, I also considered all the evidence, written and oral, as presented by the parties.

Summary of Complainant’s Case:

Background: It was submitted on behalf of the Complainant, that, in about May 2017 the Respondent advertised a vacancy for a minibus driver, on an intranet recruitment site. It was submitted that the position was a permanent, part-time post involving 16 hours of work on Mondays/Tuesdays. According to the Complainant’s submission, the essential criteria for the position were as follows: · A full, clean B, D and D1 driving licences; · An awareness of and interest in the needs of people with intellectual and physical disability; · Evidence of the Driver Certificate of Professional Competence. The following section from the job advertisement was also cited: “[The Respondent] ispleased to be an equal opportunity workplace and is an affirmative action employer. We are committed to equal employment opportunity regardless of race, colour, ancestry, religion, sex, national origin, sexual orientation, age, citizenship, marital starters, disability, gender identity or Veteran status”. It was submitted on behalf of the Complainant that, apart from the reference to age in the previous paragraph, the issue of age was not mentioned anywhere else in the job advertisement. According to evidence submitted on his behalf, the Complainant applied for the position on 24 May 2017. It was further stated that the Complainant submitted his Curriculum Vitae, copies of his driver’s licence, driver’s card and driver’s qualification card. It was further submitted that the latter three documents all stated the Complainant’s date of birth. It was submitted that on, 12 June 2017, the Complainant received an email inviting him to interview, which he attended on 16 June 2017. It was further stated that, on 20 June 2017, a representative from the Respondent’s Human Resources Office (HR) telephoned the Complainant and advised him that he had been successful at interview and was being offered the job of permanent part-time minibus driver. On 23 June 2017, the Complainant received a letter from the Respondent offering him the position. The Complainant signed the offer letter, accepting the position, on 26 June 2017 and returned it to the Respondent. It was stated that the Complainant also completed the NFVB Salary Protection Scheme and return same to the Respondent. It was submitted that this document requires the Complainant to provide his date of birth. According to the Complainant’s evidence, on 28 June 2017, he received an email from the Respondent’s Training Coordinator, welcoming him to the organisation and inviting him to attend Fire Safety Training on 30 June 2017 and Manual Handling Training on 4 July 2017. It was stated that the Complainant attended the Fire Safety Training on 30 June 2017. It was further submitted that, on 3 July 2017, the Complainant attended a medical assessment at the request of the Respondent. According to the evidence submitted, the doctor who carried out the medical assessment, confirmed that the Complainant was “fine to drive for [ the Respondent]” and provided him with a report to that effect. The Complainant delivered the report directly to the Respondent’s offices. According to the Complainant’s evidence, he was contacted, later that day, by his then current employer, as he had heard that he (the Complainant) had been offered a position with the Respondent. The Complainant confirmed that he was taking up the position with the Respondent. It was further submitted that, as the Complainant had now informed his former employer, he started informing his former workmates. It was further submitted on behalf of the Complainant that, shortly after completing his Manual Handling Training, on 4 July 2017, he received a telephone call from the Respondent’s Assistant Director of HR (ADHR), in which he was asked to confirm his date of birth. It was stated that when the Complainant confirmed his date of birth to the ADHR, she informed him that the Respondent had just realised, from his Garda Vetting form, that he was over 65. According to the Complainant, the ADHR then informed him that, although she was sorry, the Respondent could no longer give him the job as their policy does not allow people to work after 65 years. The Complainant stated, in evidence, that he was completely shocked and embarrassed by the situation. He submitted that his date of birth was expressly stated on at least five documents which he had submitted as part of the recruitment process. The Complainant further stated that there was no mention of an age limit in the advertisement or in the Contract of Employment. According to the Complainant’s evidence, on 6 July 2017, he emailed a number of people in the Respondent’s organisation, including the Director of Human Resources (DHR) setting out what had occurred and expressing the deep levels of upset the Respondent’s actions had caused him and how humiliated he felt by the entire situation. The Complainant stated in evidence that, on the following day, 7 July 2017, the DHR acknowledged the email and stated that the matter would be looked into. According to the Complainant, later that day, the DHR telephoned him and requested to meet with him. The Complainant stated that he met with the DHR and the ADHR on 12 July 2017. According to the Complainant’s evidence, during the meeting, the DHR denied that details of his application for the job had been “leaked” to his former employer. However, the Complainant stated that he does not accept that. The Complainant also submitted that when he pointed out that his date of birth was on a number of documents provided to the Respondent, the DHR stated that they do not look at these at “that stage” and it was only when they received the Garda vetting that the realised the Complainant was over 65 years of age. The Complainant stated that the DHR then indicated that he was prepared to offer a one-year contract, with the possibility of another year. The Complainant stated that, in response to this offer, he indicated to the DHR that the Respondent had already offered him a position which he had accepted. According to the Complainant, the DHR contended that they were breaking policy by offering him a one-year contract. According to the Complainant, he rejected this and got extremely upset about the situation. The Complainant further submitted that, at this point he stated that he would seek advice. According to the Complainant, the DHR concluded by informing him that he (the DHR) would be stating in a letter that he (the Complainant) had refused the job with the Respondent. According to the evidence submitted on behalf of the Complainant, he received an email from the DHR, on 14 July 2017, which contained two attachments. One of the attachments was the one-year fixed-term contract which was on offer and the second attachment was the account/minute of the meeting of 12 July 2017. The Complainant stated that when he received a telephone call from the DHR, on 25 July 2017, he (the Complainant) confirmed that he was staying in his current employment unless he was provided with the permanent, part-time contract initially offered and which he had already accepted. In conclusion, it was stated that the Complainant did not know of the month of August 2017 whether his former employer will take him back and that this caused him much stress. It was further stated that, in previous years, the Complainant’s former employer would have offered him some runs when the schools were off, however, in 2017 the Complainant missed out on all of those opportunities. Legal Submissions/Caselaw: The Complainant’s legal representative made significant legal submission, in which the relevant legislation was identified as the Employment Equality Act 1998, with particular reference being placed on Section 6, 8 and 34 of the Acts. With regard to Section 6 (2), where it is stated that the comparator for age discrimination can be actual or hypothetical, it was submitted that in this case, the comparator is a hypothetical younger person to the Complainant. It was also submitted that, as a prospective employee accessing employment and the conditions of employment and whose contract went from a permanent contract to a one-year contract, the Complainant’s situation is clearly covered by Section 8 (1) of the Acts. In this regard, the Complainant’s representative went on to reference Section 8, subsections (5) and (6), which refer to discrimination against “the employee or prospective employee”. While noting the Respondent’s contention that the term “prospective employee” is not defined in the Acts, it was submitted that, in the circumstances pertaining to this case, the Complainant is clearly a “prospective employee”. It was submitted that the Complainant applied for the position and was successful. It was further submitted that it has been accepted that, references to prospective employees include persons who applied for a job advertisement, were shortlisted for interview, took part in the interview process and attended for initial briefing sessions for the job. It was further submitted on behalf of the Complainant that, if the Respondent’s interpretation of “prospective employee” was accepted, it would prevent people who were discriminated against from bringing claims as they are not eligible to take up employment, by reason of the discriminatory position. Finally, with regard to the issue of “prospective employee”, the Complainant’s legal representative made reference to “Employment Equality Law” [Bolger et Al] and, in particular, cited the following quotations: “the other unique aspect of the scope of the Employment Equality Acts is that it covers prospective employees which is unique in employment law studies” and “…any discrimination in terms of access to employment was be seen to be a very serious form of discrimination, as it inhibits the ability of a person to get into the workplace, with the accompanying financial and psychological benefits this attracts”. The Complainant contends that, in relation to the contract between the parties, he was prepared to meet all the conditions and had completed all bar one element before the contract was withdrawn. It was further contended that the Complainant remain willing and able to complete this training. However, it was contended on behalf of the Complainant that it was the Respondent’s action which prevented him from completing this element of the training. According to the Complainant’s representative, a complete contract can be seen through the Complainant signing the letter of acceptance and the Respondent’s email of 28 June 2017, which welcomed him to the organisation. It was further submitted on behalf of the Complainant that he had legitimate expectations to act in the role offered, on the terms and conditions as set out by the Respondent to him. It was also submitted that the Complainant had further expectation that he would not be discriminated against due to his age. It was contended that there was no reference to retirement age in any documentation provided to him by the Respondent and, therefore, he is perfectly entitled to have a legitimate expectation of remaining in employment at the age of 70, as is the industry norm. In response to the case law put forward by the Respondent, the Complainant’s legal representative stated that the case law in question could be divided into two categories - (a) that there was a physical element to the job or (b) the age of retirement formed part of the contract. It was submitted on behalf of the Complainant that neither of these situations arise in this case. It is contended that, if there was any physical element to the job on offer, then this was not picked up in the medical examination by the Respondent’s doctor, whose report confirmed that the Complainant was more than capable of carrying out his role. While acknowledging that the Respondent may have a retirement age for other employees, it was submitted, on behalf of the Complainant, that this did not form part of the contract as put forward by the Respondent to the Complainant and, as a result, the Complainant was discriminated against solely by reason of his age. With regard to Section 34 of the Acts, which sets out exceptions in relation to discrimination on a number of grounds, including age, it was submitted, on behalf of the Complainant, that the Respondent could have set a maximum age for recruitment, however, in this instance, they did not do so. It was further submitted that age only became an issue after the Complainant had accepted the position and completed his training. In relation to case law, it was submitted, on the Complainant’s behalf, that he does not accept that the mandatory retirement age of 65 forms part of his contract of employment, as it was not included in any of the documentation he signed. The case of Connaught Airport Development Ltd v Glavey [EDA10/2017] was submitted as being analogous to the within case. In the above case reference was made to the fact that the Labour Court found in favour of the complainant, on account of his being compulsorily retired at age 65 in circumstances where the Court found that the company had not fixed a retirement age in respect of the complainant. In supporting the Complainant’s argument that for an employer to rely on the “normal retirement age” as a defence for lawfully terminating a person’s employment, the precise retirement age should be given to the employee in writing and form part of his conditions of employment, reference was made to Kiernan v Iarnrod Eireann ([1996[ E.L.R. 12) and Bannon v Two Way International Freight Services Ltd (UD/127/03). However, it was submitted on behalf of the Complainant that this never occurred in the within case. However, the Complainant further argued that, if such a term was part of the contract, it is discriminatory as the Respondent failed to justify the setting of a mandatory retirement age on objective and reasonable grounds. According to the Complainant’s submissions, this rationale has been followed by Equality Officers in O’Neill v Fairview Motors [DEC-E2012-093]and in Nolan v Quality Hotel, Oranmore [DEC-E2012-110] In further submission on his behalf, the Complainant’s legal representative stated that Doyle v ESB International shows there to be a heavy onus on the Respondent to objectively justify the mandatory retirement age. Reliance was also placed on Transdev Light Rail Ltd v Chrzanowsli [EDA 32/2016] and on the WRC case ADJ 4227 where the fact that the mandatory retirement age was alleged to be in place was sufficient to shift the burden of proof from the claimant to the employer to prove that the practice was not discriminatory. Reference was also made to Irish Ferries Ltd v McDermott, where the Labour Court found that a retirement age of 65 was reasonable and proportionate in circumstances where the retirement age was set at an age at which the person’s capacity to undertake the arduous work of a docker was becoming compromised. However, it was contended, on behalf of the Complainant, that there are no such issues regarding his capacity to undertake his work, as a bus driver, in this case. In this regard, the Complainant’s representative referred to the fact that the Respondent’s medical advisers certified the Complainant as suitable for the position. Finally, in relation to case law, the Complainant’s representative referred to the case of Sweeney v Aer Lingus [DEC-E2012-135]. It was submitted that, in this case, the Equality Officer rejected the sole justification put forward by the respondent in respect of its compulsory retirement age, which was that the complainant became entitled to a pension at age 65. It was further submitted that the Equality Tribunal provided that it was well established in both Community and Irish law that a pension entitlement does not necessitate retirement. Consequently, it was submitted that the Respondent’s argument that their staff retire at 65 years of age due to the pension, is similarly not a justification for the mandatory retirement age. It was further submitted that the Equality Tribunal also confirmed that the decision to retire someone at a particular age is a decision that is influenced by that person’s age and, as such, amounts to direct discrimination. It was further suggested that the Tribunal noted that domestic equality legislation provides that the fixing of retirement age shall not constitute discrimination on grounds of age, however, it further had regard to the High Court’s decision on this domestic provision to state that the fixed retirement age must serve a legitimate aim or purpose and should be proportionate. In conclusion, the Complainant’s representative stated that, it is clear that the Complainant was, at a minimum, a prospective employee within the meaning of the Acts. Therefore, it was submitted that he has locus standi to submit his complaint and, given that the Respondent accepts the sole reason for withdrawing the employment and changing the terms of same was the Complainant’s age, he is seeking a finding that he was discriminated against on the grounds of age. In addition, it was submitted that, as reinstatement is not appropriate, compensation is the only appropriate redress in this case.

Summary of Respondent’s Case:

Background: The facts relating to the background of this case were confirmed by the Respondent, in line with those already outlined in the Complainant’s submission. The Respondent further confirmed it was only when the Garda Vetting Form was returned to them by the Gardaí on 3 July 2017 that it became clear that the Complainant was over 65 years of age. It was further submitted that, as the Respondent has a retirement age of 65, which is set out in the staff handbook, the offer of the permanent, part-time role which had been offered, by way of letter dated 23 June 2017, was withdrawn. The Respondent’s substantive submission: It was submitted on behalf of the Respondent that, as part of the application process, candidates are not asked for any documentation that might identify their age such as driving licence etc. It was further submitted that, in line with best practice, the Respondent did not, as part of the application process, review or consider any of the documentation, which the Complainant had taken it upon himself to submit as part of his application and which would have contained his date of birth and/or indicated his age. As has already been detailed, it was only when the Garda Vetting document was returned by the Gardaí on 3 July 2017 that the Respondent became aware of the Complainant’s age. The Respondent submitted that they provided a fair and transparent recruitment process, which was specifically designed to ensure no discrimination took place. Consequently, the Respondent stated that they would never include a reference to age limitations in any job advertisement as this would contravene its policy in such matters. Therefore, he Respondent submitted that no age discrimination had taken place in this case. Legal Submissions/Caselaw: In legal submissions on behalf of the Respondent, their legal representative referred to Sections 6 (1), 6 (2), 6 (3) and 34 (4) of the Employment Equality Acts, 1998 – 2015. In response to the Complainant’s reference to Section 8 (1), (5) and (6) of the Acts, the Respondent submitted that, in relation to Section 8 (5) (c), the advertisement published by the Respondent does not contravene Section 10 (1) of the Acts. In addition, reference was made to a number of cases deemed relevant as part of the response to the Complainant’s claim. The following is a summary of the case law referred to in this regard. It was submitted that Health and Safety had been found by the courts to be a legitimate example of an objective justification in certain cases. In this regard, reference was made to Michael Chrzanowski v Transdev Dublin Light Rail Ltd, [E2016-070], a case which involved a tram driver. It was submitted that, in this case, the WRC found the respondent had not discriminated against the complainant on the age ground and that the respondent’s retirement age was objectively justified on Health and Safety grounds. It was further submitted that this finding was upheld on appeal to the Labour Court. It was also submitted that the case of Saunders v CHC Ireland Ltd [DEC-E2011-142] provided further confirmation that the health and safety of employees and other parties can be used to justify the setting of the retirement age. It was submitted that, in the aforementioned case, the employee was a helicopter winch operator, where the nature of the service provided was the safe recovery/rescue of persons in life-threatening emergency situations. It was submitted that the Equality Officer found that the operation of the mandatory retirement age (55 in that case) was appropriate and necessary to achieve its aims. The case of Wolf v Stadt Frankfurt am Main [C-229/08] was also referenced. In this case the CJEU found that the imposition of a retirement age was appropriate for employees of the fire service, given the physical nature of their duties. The Respondent submitted that its objective justification for setting a retirement age is that of Health and Safety. The Respondent stated that the service it provides is for intellectually disabled adults and children. The service users are very vulnerable, their behaviour can be very challenging, and they have a tendency to lash out, hence the health and safety of employees is paramount. It is further submitted that the role of the bus driver is to provide daily transport services to service users attending the Respondent centres as directed by Management; the provision of transport to and from respite and other centres during fixed closures and the Respondent’s day centres and the provision of transport in general for service users e.g. outings, swimming, etc, as requested by Management. The Respondent stated that, in this role, the driver can legitimately be exposed to behaviours that are challenging from service users and they must manage same whilst always ensuring to drive the vehicle in a safe manner in accordance with the Rules of the Road and any relevant Road Traffic Acts which may be in operation. The Respondent also made reference to the Code of Practice on Longer Working [SI 600/2017]. It was stated that the Code sets out best industrial relations practice in managing the engagement between employers and employees in the run-up to retirement age. In particular, the Respondent made reference to the fact that an employer may include Health and Safety as a legitimate aim which may be included by employers in such circumstances, particularly in the more safety critical occupations. The Respondent submitted that, in response to this Code of Practice, they developed a retirement policy which enshrines the previously held policy in relation to retirement. The Respondent made particular reference to the section entitled “Normal Retirement Arrangements” which states as follows: “The normal retirement age in our organisation is 65. Unless otherwise advised, employees will retire on reaching that age, subject to retirement age of 65 be specified in the contract of employment. [The Respondent] applies a normal retirement age of 65 for the following reasons: · The organisation needs to maintain a workforce that is balanced in terms of age in order to enable it to discharge the full range of normal functions that are required to provide services to service users (including such physically demanding functions as might be difficult to adequately perform if the workforce as a whole was ageing) · [The Respondent] needs to ensure that promotion opportunities arise from time to time in order to avoid creating promotion bottlenecks and thereby threatening the ability of the organisation to retain a reasonable number of younger employees”. The Respondent further submitted that while there is no legislation in place with regard to retirement age at present, there has been some recognition that employees should be offered the opportunity to work on past their contractual retirement date if they wish to do so. In this regard, the Respondent made reference to HSE Circular 15/2017 as an example of this. According to the Respondent’s evidence their actions, in providing the Complainant with a fixed-term contract for one year, reflects that position. The Respondent drew reference to the fact that the Complainant refused to accept the fixed term contract which was subsequently offered to him. It was further stated that, while the contract period offered was of one-year duration, it was expressed in the contract that this may be reviewed at the end of the initial one-year period. It further was submitted, on behalf of the Respondent, that the Complainant’s knowledge (or lack thereof) of the Respondent’s retirement age is not relevant in this instance as he was not an existing/current employee. It was further submitted that, as a result, the Complainant cannot have any legitimate expectations of remaining in employment beyond the age of 65. In response to the contention that he had a legitimate expectation to act in the role offered, the Respondent submitted that the Complainant could have no legitimate expectation that he would be allowed to remain in employment after the age of 65. The Respondent submitted that the case law in in relation to this relates to employees or existing employees, who want to remain on past the age of 65. It was contended that, as this case does not relate to an existing employee, the Complainant can have no such legitimate expectation. In support of this, the Respondent referenced the Labour Court decision in the Transdev case [EDA 1632], where the Labour Court found that the retirement age had been established by custom and practice and saw no merit in the argument that the Complainant had a legitimate expectation of working beyond 65. In this regard, the Respondent submitted that, in the within case, their staff handbook clearly states that the stipulated retirement age is 65. In summary, on this issue, the Respondent submitted that the Complainant was not a prospective employee for the purposes of the Acts. Therefore, the Complainant did not have locus standi to mount the claim under the Acts and, therefore, the claim must fail for that reason. Without prejudice to this contention, the Respondent also submitted that if the Complainant was a prospective employee, he can have no legitimate expectation of remaining in employment past the age of 65, as he was not an existing employee. With regard to the letter of offer to the Complainant, dated 23 June 2017, the Respondent submitted that this was always conditional on the Complainant meeting the conditions of employment, namely that he was under the retirement age. It was further submitted that the letter of offer was, at all times, subject to certain conditions and, it was pointed out, that the Complainant did not fulfil all of these conditions. In this regard, the Respondent referred to the case of Genocky v Governor & Company of Bank of Ireland [IEHC 498 – 2017], wherein the Court found that in a situation, where it had been made clear that a job offer is conditional upon a plaintiff meeting certain requirements, the job offer can be withdrawn. In concluding their caselaw submission, the Respondent cited the case of Hamill v Scouting Ireland Ltd [DEC-E20180-002], wherein the Equality Officer found that the complainant’s retirement at age 66, because the respondent ceased to be in receipt of funding in respect of his role beyond that age, was not discriminatory. They also cited the case of Sheehy v Ryan [IESC 14 – 2018], where the High Court found that employment could be determined on reasonable notice and that no one had the right to work indefinitely.

Findings and Conclusions:

Having carefully considered all the evidence adduced, by and on behalf of both the Complainant and the Respondent, I am satisfied the following represents the factual context in which the Complainant’s complaint of discrimination on the grounds of age is set. In May 2017, the Respondent advertise a vacancy for a bus driver. The Complainant, who was already working as a bus driver for another employer, applied for the position. The Complainant was interviewed for the position on 16 June 2017. On 20 June, the Complainant received a telephone call from the Respondent confirming that he had been successful at interview and that he was being offered the job on a permanent, part-time basis. This was further confirmed to the Complainant in writing by way of a letter dated 23 June 2017. Further confirmation of the Complainant’s offer of employment can be found in an invitation, received on 28 June 2017, to attend pre-employment training which was scheduled to take place on 30 June and 4 July 2017. On 3 July 2017, the Complainant attended for a pre-employment medical assessment with the Respondent’s doctor. The medical report issued on foot of this assessment confirmed that the Complainant was “physically and mentally fit and suitable for employment” in the position being offered. One of the conditions on which the job offer was made to the Complainant related to the successful completion of Garda Vetting for the role. The Complainant duly completed the necessary Garda Vetting application and a positive Vetting Disclosure, dated 3 July 2017, was received by the Respondent. The Vetting Disclosure document contained the Complainant’s date of birth, which showed that he was 65 years of age. The Respondent claims that this was the first time they became aware of the Complainant age. On 4 July 2017, the Respondent contacted the Complainant by phone and advised him that they were withdrawing the job offer on the basis that their policy did not allow people to work after 65 years of age. Further interaction took place between the Complainant and the Respondent, which culminated in a meeting between the parties on 12 July 2017. At this meeting, representatives of the Respondent stated that while they were not in a position to proceed with the offer of the permanent part-time position, they were prepared to offer the Complainant a one-year fixed term contract, under the same terms and conditions as set out in the offer letter of 23 June 2017, with the one exception being that the Complainant was not in a position to partake in the Respondent’s pension scheme. However, it was stated that the Respondent would facilitate a PRSA scheme as part of the Complainant’s terms and conditions of employment, should he decide to join same. The meeting of 12 July 2017 concluded with the Complainant expressing his extreme upset at the withdrawal of the original permanent offer and advising the Respondent that he was taking advice on the matter. The Respondent followed up with a letter to the Complainant, dated 14 July 2017, in which it confirmed the offer of a one-year fixed term contract, as a suitable resolution of the situation. On 25 July 2017, the Complainant made contact with the Respondent and advised that he was rejecting the offer of fixed term contract. The Complainant submitted his claim for discrimination, on the grounds of age, to the Workplace Relations Commission on 11 October 2017. Having established the factual background, as set out above, I then proceeded to consider the merits of the Complainant’s claim as set out in his complaint form, in written submissions made on his behalf and by way of oral evidence presented at the Hearing. Section 85 A (1) of the Employment Equality Acts, 1998 – 2007 states: “Where in any proceedings facts are established by or on behalf of a claimant 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 is required to establish, in the first instance, primary facts upon which the claim of discrimination is grounded and from which it may be presumed that there has been discrimination. If he succeeds in doing so, then, and only then, the burden of proof passes to the Respondent to prove the contrary. Based on the above, when evaluating the evidence in this case, I must first consider whether the complainant has established a prima facie case pursuant to Section 85 (a) (1) of the Employment Equality Acts 1998 to 2008. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. The inference of discrimination must have a factual/credible basis and cannot be based on mere speculation or assertions which are unsupported by evidence. The Labour Court elaborated on the interpretation of section 85 (a) (1) in Melbury v. Valpeters (EDA/ 0917) where it stated that this section: "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". Having carefully considered all of the evidence adduced and based on the facts are set out above, I find that the Complainant has clearly established a prima facie case that an act of discrimination took place in relation to his application for the position as permanent, part-time bus driver with the Respondent. The Complainant applied for the position and, on the basis of that application, was called for and was successful at interview. The Complainant’s success in his application for the position on offer was first confirmed to him in a telephone call, on 20 June 2017, from a member of the Respondent’s Human Resources team. This verbal offer was followed up, in a letter dated 23 June 2017, from the Respondent’s Human Resources Officer. This offer was conditional on a number of factors which were set out in the letter. However, I note that none of these make any reference to the issue of age. Having accepted the offer of employment, in writing, on 26 June 2017, the Complainant engaged with the Respondent, over the following week or so, in completing various aspects of the induction process, including attending for medical assessment and mandatory training courses. On 4 July 2017, while in the process of completing his training, the Complainant received a telephone call from the Respondent’s Assistant Director of Human Resources (ADHR). In this telephone conversation, the ADHR advised the Complainant that his date of birth had come to their attention as part of their Garda Vetting process. Based on his date of birth, which indicated that he was over 65 years of age, the ADHR informed the Complainant that the Respondent could no longer give him the job as their policy does not allow people to work beyond 65 years of age. Based on the above, I am fully satisfied that the Complainant has clearly established a prima facie case that he was potentially subjected to an act of discrimination, based on his age and that the burden of proof now passes to the Respondent to defend the claim. The Respondent’s primary argument in defending the claim of discrimination on the grounds of age centres on their application of a retirement policy which is based on a normal retirement age of 65 for all employees. The Respondent further contends that it objective justification for setting such a retirement age is Health and Safety. It was submitted that, due to the specific demands of the role, i.e. the daily transport a vulnerable service users, whose behaviour can be very challenging, can result in a driver being legitimately exposed to challenging situations, in a context where they have to ensure to drive in a safe manner in according with the rules of the road and all relevant Road Traffic legislation and requirements. Included in the evidence provided in support of the justification for the application of a retirement age of 65, the Respondent submitted evidence from its retirement policy which states that they apply “a normal retirement age of 65 for the following reasons: · The organisation needs to maintain a workforce that is balanced in terms of age in order to enable it to discharge the full range of normal functions that are required to provide services to service users (including such physically demanding functions as might be difficult to adequately perform if the workforce as a whole was ageing) · [The Respondent] needs to ensure that promotion opportunities arise from time to time in order to avoid creating promotion bottlenecks and thereby threatening the ability of the organisation to retain a reasonable number of younger employees”. This document makes no specific reference to the role of bus driver and/or that there may be health and safety issues in relation to that role. On that basis, I believe it is reasonable to conclude that the application of the retirement age policy is applicable across all groups and categories of staff. Consequently, I find it would be therefore unreasonable to apply health and safety constraints in relation to bus drivers, when this is clearly not being applied across other groups and categories of staff. However, notwithstanding the above finding, I considered the Respondent’s argument with regard to the application of health and safety issues as they pertain to the role of bus driver. While I fully accept the bus drivers, in such circumstances, may from time to time have to deal with challenging situations relating to the behaviour of their passengers, I was not provided with any evidence which would suggest that the driver’s ability to cope in such situations is impacted by age. Clearly the Complainant is a competent and experienced driver, whose CV was such that the Respondent considered him suitable for the position on offer. I also note that, at the time of his application for the position, the Complainant was employed as a school bus driver, a position he returned to following the withdrawal of the original offer employment by the Respondent. While I accept that, in the role of a regular school bus driver, the Complainant may not be exposed to the same level, or perhaps frequency, of potential challenges as might apply with the Respondent’s role, I am nonetheless of the view that the positions are analogous. In support of their contentions in relation to the Health and Safety element in the justification of the application of retirement age of 65, the Respondent cited three cases – (1) Michael Chrzanowski v Transdev Dublin Light Rail Ltd, [E2016-070], (2) Saunders v CHC Ireland Ltd [DEC-E2011-142] and (3) Wolf v Stadt Frankfurt am Main [C-229/08]. Having reviewed all of those cases, I note that, in the latter two cases, the complainants in question were a winch operator on a helicopter and a firefighter. Notwithstanding the potential challenging behavioural situations which the Complainant, in the within case, may have had to deal with in the course of his work, I do not accept that the physical demands pertaining in this regard are comparable with those of a winch operator or firefighter. While I accept that the complainant in the Transdev case, a tram driver, is more comparable with the role of a bus driver’s, I note the specialist medical evidence presented to the Labour Court, by the respondent in that case, in support of their policy of retiring tram drivers at age 65. In the within case, the medical evidence, in the form of a pre-employment assessment by the Respondents doctor, indicates that the Complainant is both “physically and mentally fit and suitable for employment”. Clearly, if the issues pertaining to tram drivers at or above the age of 65 were applicable in the role on offer to the Complainant, one would reasonably expect that these would have been raised during the pre-employment medical examination and, if there were any concerns in relation to the Complainant’s ability to carry out the role these would have been reflected in the medical report and/or referred back to the Respondent. I am further influence in this regard by the fact that the job advertisement and the information pertaining to the role made no reference whatsoever to the fact that there were age restrictions applying to the role. While I note the Respondent’s contention that to include reference to date of birth/age in a job advertisement could, in certain circumstances, be considered to constitute potential discrimination, I am of the view that, if objective justification exists to support the application of age restriction in relation to the position on offer, then these should be transparent and advised to all potential applicants at the outset. Consequently, taking all of the above into consideration I am not satisfied that the Respondent has reasonably demonstrated that health and safety represents an objective justification for the imposition of a mandatory retirement age of 65 as it applied to the Complainant in this case. In their reply to the complaint, the Respondent submitted that the Complainant was not a prospective employee for the purposes of the Employment Equality Acts. Therefore, the Respondent contends that the Complainant did not have locus standi to mount the claim under the Acts. While I accept the Respondent’s argument that the phrase “prospective employee” is not defined in the Employment Equality Act, I am satisfied that the Complainant and his complaint fall clearly within Section 8 (1) of the Acts, which state as follows: “(1) In relation to –a) Access to employment,b) Conditions of employment,c) Training or experience for or in relation to employment,d) Promotion or regrading, ore) Classification of posts, An employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker”. Finally, I considered the matter of the offer of a one-year fixed term contract as an alternative to the permanent, part-time contract which was withdrawn by the Respondent, when they became aware of the Complainant age. This offer was rejected by the Complainant. The Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017 [S.I. No 600 of 2017] makes reference to the provision of fixed term contracts as a potential mechanism for addressing contractual issues relating to employees wishing to remain on in the workforce beyond compulsory retirement age is set by employers. Having carefully considered this aspect of the case, I accept that the offer of the fixed term contract appears to be a bona fide attempt by the Respondent to resolve the situation that arose out of the withdrawal of the initial permanent, part-time contract offered to the Complainant, arising from his successful completion of the recruitment process for the position as advertised. However, I am strongly of the view that this offer was made as a result of the Complainant’s objection to the withdrawal of the initial job offer. In this regard, I believe that such offer would not have been made had the Complainant accepted the situation without protest. In my view, this was further confirmed by the Respondent’s admission, to the Complainant, that they were breaking with normal policy in offering a him fixed-term contract. Taking all of the above into consideration, I am satisfied that the offer of a fixed term contract was made after the act of discrimination took place. Consequently, I do not accept that, in such circumstances, it could be considered to negate the discrimination. I am influenced in this regard by the fact that the Complainant decided to return to his former employer rather than accept a one-year contract with the Respondent, albeit that the contract stated that it may be reviewed at the end of the initial contract period. In such circumstances, I must conclude that the decision taken by the Complainant to reject this contract and return to his former employer could not be considered as being unreasonable in the circumstances. Consequently, I am of the view that the issue of the offer of the one-year fixed term contract and the Complainant’s refusal of same cannot be used to negate the act of discrimination which occurred when the original, permanent contract was withdrawn. However, I do believe that this has relevance in relation to the calculation of appropriate compensation for the act of discrimination and I have factored same into my considerations in this regard. In conclusion, I note the relevant section of the Employment Equality Acts, 1998 to 2015, is Section 34 (4), as amended by the Equality (Miscellaneous Provisions Act) 2015, which states as follows: “(4) without prejudice to subsection (3a) it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntary or compulsory) of employees or any class or description of employee if – i. It is objectively and reasonably justified by legitimate aim, and ii. The means of achieving that aim are appropriate and necessary.” Having carefully considered the Complainant’s complaint of age discrimination and the Respondent’s submissions in response, I find that the Respondent has failed to satisfy the test set out in the above section of the Acts, namely that the fixing of the mandatory retirement age of 65 in relation to the position originally offered the Complainant is not objectively and reasonably justified by legitimate aim and/or that the means of achieving that aim are appropriate or necessary. Consequently, I find that the Complainant’s complaint that he was discriminated against by the Respondent on the grounds of age is well-founded and I find in his favour in this regard.

Decision:

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.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find the Complainant’s complaint of discrimination, on the ground of age, is well-founded and I make an award of €2,500 in his favour, in compensation for the Respondent’s breach of Section 8 (1) of the Employment Equality Act, 1998 2015. This award does not include any element relating to remuneration and is, therefore, not taxable.

Dated: May 8^th 2019

Workplace Relations Commission Adjudication Officer: Ray Flaherty

Key Words:

Employment Equality ActAge Discrimination