Complainant

Respondent

Parties

Kathleen  Dempsey

The West of Ireland Alzheimer Foundation

Representatives

  SIPTU

MacSweeney & Company 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-00019395-001

24/05/2018

The complainant worked as a care assistant until her employment ceased on 23^rd May 2018.  She claims she had to retire and was discriminated against on the basis of her age.

Early in May 2018, the complainant’s manager Ms X asked the complainant would she be retiring later that month and the complainant replied that she would not.  The complainant was then advised that the HR Consultant, for the respondent (Mr Y), would be in touch with her.  When Mr Y contacted her by phone, she told him she did not wish to retire.  It came as a shock to receive a letter from him on 11^th May 2018, detailing that her employment would cease on 23^rd May 2018 owing to retirement and which was in breach of SI No 600/2017 Code of Practice on Longer Working.  Whilst a retirement age had been detailed in her contract of employment, at least 3 other employees (Ms A, Ms B and Ms C) had been allowed to stay on after the age of 65 in recent times.  In the case of Ms C she had been allowed to stay on after the age of 70. 

The complainant outlined that she had an unblemished record throughout her 15 years’ service with the respondent and there had been no complaints regarding her ability to carry out her duties nor was there ever a risk assessment conducted if there were concerns about ability and her continued employment was not an obstruction to the progression of younger workers.

It was outlined that compulsory retirement ages, set by an employer, must be capable of objective justification.  Furthermore, it was detailed that even if objective justification and a legitimate aim could be shown, the means of achieving it were grossly disproportionate.  

During cross examination the complainant detailed that she did not raise her unhappiness through the grievance procedure as she had twice advised the respondent that she did not wish to retire and when she received the letter she believed the decision had already been made and there would be nothing that would change the respondent’s mind.

The respondent denied that the complainant had been discriminated against on the basis of age.  The respondent outlined that the complainant works a physical demanding role where she is required to take care of vulnerable patients including attending to their personal care such as washing, toileting and other aspects of daily living.

It was detailed that complainant has had significant periods of absence in recent times which included 3 weeks in 2018, 10 weeks in 2017, 13 weeks in 2016 and 1.5 weeks in 2015 and while it was not  in question that the absences were genuine and certified; it was an indicator of a trend that those in labour intensive work will suffer with increasing illnesses as they get older.

The respondent detailed that the retirement age of 65 was incorporated into the complainant’s contract of employment which the complainant accepted and that while others may have been accommodated to stay on after 65, the complainant never requested a wish to stay on after the age of 65.  The respondent outlined that it was curious that SIPTU have previously in correspondence accepted enforceability of a retirement age of 65 but were now apparently disputing same.

The respondent outsourced its hr function to an experienced consultant Mr Y who had discussions with the complainant prior to her retirement and Mr Y advised her that she should contact him if she had any queries which he followed up by letter.  Mr Y was not in attendance at the hearing, but it was the respondent’s belief that the complainant did not have difficulties with retiring.

The respondent outlined that the complainant had clearly sought advice from her union prior to the retirement event and very quickly after her retirement took effect, submitted a claim.  It was outlined that the haste in which the complainant acted to pursue a claim stood in stark contrast to what was referred to as the coy and insincere fashion in which the complainant remained silent if she had an expectation that she would stay on until 70.

It was submitted that a retirement age is objectively and reasonably justified and that the burden of proof rests with the complainant and that the complainant never submitted a request for working longer than the retirement age laid down.  It was further submitted that the complainant acted in a cynical and contrived manner by failing to express any concern regarding her retirement and her failure to request any form of deferment, continuation or variation of her retirement date.

Case law cited included Donnellan v Minister for Justice Equality and Law Reform High Court 25^th July 2008, Saunders v C-HC Ireland Ltd DEC-E2011-142, Paul Doyle v ESB International DEC-E2012-086, Rosenbladt v Oellerking Gebaudereinigungsge GmbH Case C-45/09, Irish Ferries Ltd v McDermott EDA 31/2016, Roche v Complete Bar Solutions DEC-E2012-086 in addition to the WRC Code of Practice.

It was confirmed by the respondent that the complainant’s employment had not been terminated because of her health issues but because of a retirement age.  The respondent confirmed that no other employees who stayed on after the age of 65 had to formally request to stay on and that there is no formal application for employees to remain on after the age of 65.  It was also confirmed that the respondent did not make contact with the complainant upon receipt of a copy of the complaint from the WRC.

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.

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”.

In the instant case the complainant sets out that she had an unblemished record of 15 years and she was forced to retire whilst other employees were allowed to remain on after the age of 65.  Furthermore, it was detailed by the complainant that when she raised her objection to retirement, the respondent ignored her and proceeded regardless and that this was all done very quickly by them in breach of SI No 600/2017.  The complainant also outlined that her retirement was not necessitated by any legitimate aim, nor was any risk assessment conducted regarding the necessity for a compulsory retirement and that her post was not an obstacle to the progression of younger workers. 

The respondent disputes that the complainant was discriminated against and details that the retirement age is set out in the complainant’s contract of employment and it was contrived and cynical to fail to raise any concerns with her retirement and to proceed so quickly with a claim to the WRC following the retirement event.  Furthermore, it was set out that the complainant has suffered with health issues, that the nature of the work is very physical, and safety critical work and the retirement age is objectively and reasonably justified by reasonable aims.    

It would appear that a discussion around the complainant’s retirement only came about early May 2018 in a causal conversation with Ms X.  This was followed by a telephone conversation with the complainant and with Mr Y on 10^th May, followed by a letter from Mr Y dated 11^th May.  I was also struck by the complainant’s evidence who detailed that when her manager Ms X asked was, she retiring, she replied that she was not and that she also advised Mr Y by phone that she was not happy with retiring.  The letter of 11^th may sets out that the complainant’s last shift would be Sunday 20^th May 2018.  I find it significant that this letter was sent only 2 weeks before the complainant’s retirement as it would have been expected that conversations regarding the complainant’s forthcoming retirement would have happened sooner and is set out in SI No 600/2017 – Industrial Relations Act 1990 Code of Practice on Longer Working Declaration Order 2017 “it is good practice for an employer to notify an employee of the intention to retire him/her on the contractual retirement date within 6-12 months of that date”. 

In the absence of any direct evidence from Ms X or Mr Y, I find the complainant’s evidence credible that she raised objections to this, and her objections were ignored.  I also note that the letter of 11^th May 2018 appears quite a one-sided letter whereby Mr Y details all that he communicated by way of his conversation with the complainant, but there is no reference anywhere to anything the complainant said during this conversation. 

Much was made by the respondent regarding the haste in which the complainant submitted her complaint to the WRC and her failure to utilise any grievance procedure if she was unhappy with the retirement.  I note also that the respondent wrote to the WRC on 25^th June 2019 detailing that they would not attend the hearing as the complainant had failed to utilise the grievance procedure and suggesting that the WRC should advise the complainant to utilise same.  However, the respondent was unable to respond to why they did not contact the complainant upon receipt of the complaint if her dissatisfaction came as such a shock to them. 

Furthermore, while there was reference by the respondent to various case law owing to retirement on health and safety grounds, no legitimate health and safety grounds were presented that would have prevented the complainant working past the age of 65.  Indeed, the respondent was also unable to respond to why other employees were allowed to remain in employment, in recent times, after the age of 65 but the complainant was not permitted to do so. 

I find that the complainant has clearly, established a prima facia case of discrimination on the grounds of age and the burden of proof which has shifted to the respondent has failed to be met by them.  I uphold the complaint that the complainant has been discriminated against by her dismissal on the grounds of age and award the complainant €14,000.

I uphold the complaint that the complainant has been discriminated against by her dismissal on the grounds of age and I award the complainant €14,000.

Discrimination, age, retirement