Complainant

Respondent

Parties

Peter O'Loughlin

Health Services Executive HSE West

Representatives

Gerard Kennedy SIPTU

Diarmuid Cunningham, Comyn Kelleher Tobin 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-00033546-001

08/01/2020

The Complainant commenced employment with the Respondent, on 8 March 1999 in the role of Caretaker, in a temporary capacity. The Complainant was subsequently made permanent on 16 February 2015. At that time, the Complainant was provided with a Contract of Employment which stipulated a retirement age of 65 years, at which point he would be entitled to a pension, based on full-service from 8 March 1999.

On 8 August 2018, the Complainant applied for a one-year retention of employment, under the Department of Health Circular 015/2017 (HSE HR Circular 006/2018). This application was approved, and the Complainant completed and signed the appropriate documentation in this regard on 29 August 2018.

In September 2018, some two months prior to his 65th birthday, the Respondent initiated his retirement process, with the appropriate application documentation being completed and signed on 27 September 2018.

The Complainant commenced a one-year fixed term contract of employment on 2 December 2018, which concluded on 1 December 2019 in line with the terms of that contract.

On 8 January 2020, the Complainant submitted a complaint to the Workplace Relations Commission, under Section 77 of the Employment Equality Act, 1998, claiming discriminatory dismissal by reason of his age.

That complaint is the subject of this investigation/adjudication.

Submissions made on behalf of the Complainant contended that he was dismissed by the Respondent through enforced retirement on 3 December 2019 when his application for an extension of his contract beyond the age of 66 was rejected.

According to the Complainant’s submission, at the time of his dismissal, the Respondent had not set out any reasons whatsoever for deciding to issue a notice of termination or for now applying a retirement date of 66 as per HSE HR capita circulars.

It was further submitted that the Complainant was not required to undertake a medical examination to determine his fitness or otherwise to remain in employment.

In his complaint form, the Complainant nominated a comparator (Mr A), on whom he relied to demonstrate that there are differing and, in Mr A’s case more beneficial retirement dates applicable within the Respondent’s employment. According to the Complainant’s submission, it has been confirmed by the Respondent that, at no stage, prior to the implementation of the decision to dismiss the Complainant, did the Respondent indicated subjective justification for the difference in retirement ages or identify as to whether the means of achieving that objective were either appropriate or necessary.

The Complainant contends that the Respondent cannot now rely on any form of objective justification for his termination given that at no stage prior to his dismissal was he made aware or given the opportunity to either question or challenge the legitimacy or veracity of such justification.

The Complainant’s representative referred to Section 85 (a) of the Employment Equality Acts, which sets out the burden of proof applying to claims of discrimination. The Complainant requested, that in considering the requirement necessary to meet that burden of proof, the Adjudication Officer should give due consideration to the following facts:

1.       The Complainant was dismissed by the Respondent on 13 December 2019.

2.       The decision to terminate his employment was directly related to his age.

3.       At the time of his dismissal, other employees have been and were being treated more beneficially in relation to the application of retirement age. In this regard, the Complainant again cited Mr A, who, it was alleged, continues as a direct employee of the Responded at age 67.

4.       At the time of his dismissal, the Respondent had not justified the Complainant’s age of retirement within the meaning of Section 34 (4) of the Acts and Article 6 of the Directive 2000 78/EC.

5.       At the time of the Complainant’s dismissal, he was fit and well and quite capable of carrying out the functions and duties associated with his job, thereby removing any requirement for the imposition of a mandatory retirement age.

6.       The Complainant’s entitlements under the Act are not diluted by virtue of the fact that he was on a fixed term contract. In this regard the Complainant’s representative cited the case of McGrath v Focus Ireland (ADJ-00018823) in support of his arguments.

7.       There exists a legal imperative on the Respondent to clearly identify the objective justification be relied upon. In this regard, the Complainant’s representative cited the case of Ann Roper v RTE (ADJ-00019084) and that of Valerie Cox v RTE (ADJ-00006972)

Representation made on behalf of the Complainant contended that the facts, as set out above, are of such significance that they are sufficient to establish a prima facie case of discriminatory treatment. Consequently, the Complainant contends that the burden of proof must, therefore, shift to the Respondent for rebuttal.

It was further contended, on behalf of the Complainant, that, based on the particular circumstances of this case and the submission/evidence presented on his behalf by his Trade Union representative, it would be an impossible task for the Respondent to discharge the burden of proof now placed upon them.

Consequently, the Complainant is seeking a decision that determines his complaint of discrimination on the grounds of age is well-founded and compensation to address this treatment should be awarded.

Preliminary Objections:

The Respondent’s legal representative commenced their submission, in response to the complaint, by raising two preliminary points of objection.

Firstly, the Respondent referred to Section 85A (1) of the Employment Equality Acts, which deals with the matter of burden of proof in equality cases and, in particular, the requirement that the Complainant establish a prima facie case of discrimination to support any complaint in this regard.

In their submissions in this regard, the Respondent cited the cases of Southern Health Board v Mitchell [AEE/99/8] and Margetts v Graham Anthony [EDA038].

With regard to the within complaint, the Respondent submitted that the Complainant is required, as a result of Section 85A (1) of the Acts, to make a prima facie case to support his complaint of discriminatory dismissal on the grounds of age.

According to the Respondent’s submission, the Complainant accepts that, shortly prior to reaching his compulsory returned age of 65, he applied for and was approved to be re-hired on a Fixed Term Contract, which will allow him to work for one further year, up to 1 December 2019. The Respondent further submitted that the Complainant’s employment ended when that Fixed Term Contract expired and, as per the terms of the contract, no further extension to his employment was considered.

The Respondent submitted that, based on these facts, the Complainant cannot reasonably claim that they raise a presumption of discrimination. According to the Respondent, the Complainant entered into a Fixed Term Contract knowing precisely what would occur once the contract expired and there is no question that his employment was terminated for discriminatory reasons. The Respondent further stated that they complied with the terms of the Contract of Employment and no cause of action arises out of the expiry of that Fixed Term Contract.

Consequently, in those circumstances, the Respondent requests that the Complainant’s complaint be rejected on the basis that he has not established a prima facie case of discrimination.

The second Preliminary Objection raised on behalf of the Respondent related to time limits. In this regard, the Respondent’s representative referred to Section 77 (5) (a) and (b) of the Employment Equality Acts.

The Respondent submitted that, based on the above provisions of the Acts and if and insofar as the Complainant’s complaint relates to his compulsory retirement on attaining the age of 65 years, which occurred in December 2019, this means that the Complainant’s complaint is out of time and the Adjudication Officer has no jurisdiction to hear it, given that it was submitted to the WRC on 8 January 2020.

Response to the Complainant’s substantive complaint:

Without prejudice to the Preliminary Objections referred to above, the Respondent’s representative proceeded to make submission, under the following headings, in response to the Complainant’s substantive claim of discrimination based on the grounds of age.

a)       Legal Framework:

The Respondent commenced submission in this regard by referring to Section 6 (1) (2) (3) of the Employment Equality Act 1998 – 2015.

b)      Retirement Ages in the Public Sector:

The Respondent submitted the rules governing compulsory retirement ages for public servants are, in the main, set down in primary legislation.

According to the Respondent’s submission, the Complainant came into employment, as a public servant, prior to 1 April 2004 and, similar to other public servants employed before that date, he had a compulsory retirement age of 65 years, as set out in his Contract of Employment. The Respondent further referred to the Public Service Superannuation (Miscellaneous Provisions) Act 2004, which stipulated that new entrants to the public service on or after 1 April 20004 did not have a compulsory retirement age.

The Respondent submitted that, on 5 December 2017, the government made a policy decision to revise the compulsory retirement age for public service employees recruited prior to 1 April 2004 to age 70 and legislation would be drafted to give effect to that decision. However, the Government agreed that interim arrangements could be introduced for serving public servants who reached the age of 65 years between the date of the Government decision and the coming into force of the legislation, because, while those individuals would be aware of the government decision, they would be unable to avail of it. According to the Respondent, this was to enable those employees to continue in employment until they reached the age of eligibility to receive the Contributory State Pension. The Respondent further contended that, without these specific arrangements, those individuals would have been required to cease working on reaching the age of 65.

According to the Respondent’s submission, a Department of Health Circular (015/2017) set out the terms under which certain public servants in the health sector could be retained beyond their compulsory retirement age of 65 and continue working until they reached the age of eligibility for the Contributory State Pension, which was 66 years of age at the date of the Circular. The Respondent further stated that the provisions of the Circular made it clear that no applications for retention beyond the age of eligibility for the Contributory State Pension would be considered.

The Respondent then cited the Public Service Superannuation (Age of Retirement) Act 2018, which was enacted on 26 December 2018 and came into immediate effect on that date, and which revised the compulsory retirement age for most public servants recruited prior to 1 April 2004, from age 65 to age 70.

However, the Respondent submitted that the 2018 Act excludes, from its scope, a person who, before the coming into operation of Section 3 of the Act, retired from the public service upon or after attaining the age of 65. According to the Respondent’s submission, the 2018 Act did not have any effect, retrospective or otherwise, in relation to public servants who have retired prior to the date of enactment (i.e. 26 December 2018) and had been rehired on contract. The Respondent further submitted that the position of those public servants who, at the date of enactment, had already retired and were availing of the interim arrangements i.e. that they had been re-hired for a period of one year until they reached the age of 66, continue to be governed by the terms of their Fixed Term Contracts and their employment would cease as per the terms of that agreement.

According to the Respondent, the Complainant, in the within case, was precisely in that situation, having been given a fixed term contract of one year, the terms of which were that his employment would cease on 1 December 2019.

c)       Substantive Submission:

According to the Respondent’s submission, the Complainant does not dispute that he had a compulsory retirement age of 65, which obliged him to retire on 2 December 2018, on reaching 65 years of age, and that his permanent contract came to an end upon retirement.

The Respondent further submitted that the Complainant’s lump sum on retirement was paid to him and that he was in receipt of his full pension from retirement date. In addition, the Respondent submitted that, given that the Complainant had chosen to avail of the Fixed Term Contract, pursuant to Circular 015/2017, his salary under the Fixed Term Contract was set at Point 1 of the relevant Salary Scale, in order to ensure that his pension in payment did not have to be suspended or abated.

According to the Respondent’s submission, prior to his compulsory retirement, the Complainant, and other employees of the Respondent in a similar position to him, were made aware of the availability of the interim arrangements, pursuant to Circular 015/2070 and that it was a matter for each individual employee to make an application to be retained or not pursuant to those arrangements. The Respondent further submitted that all applications under this Circular were subject to managerial approval and the Complainant’s application was approved accordingly.

The Respondent submitted that, in choosing to avail of the interim arrangements for a period of one year beyond his compulsory retirement age, the Complainant expressly agreed to the terms and conditions of the retention, as set out in Circular 015/2017. In particular, the Respondent stated that the Complainant acknowledged in writing that the retention was for a maximum period of one year from the date of his 65th birthday until he reached the age of 66 years. The Respondent further stated that the Complainant confirmed his understanding that no further application for retention, beyond the age of 66, would be considered.

According to the Respondent’s submission, based on the above set of facts, the Complainant cannot reasonably assert that he had an expectation of working beyond the one-year term of the Fixed Term Contract nor could he reasonably contend that the natural expiry of his Fixed Term Contract constitutes discrimination.

The Respondent further submitted that, during the Complainant’s period of retention he was paid at the minimum point of the pay scale for that post, no pension contribution was payable and no public service pension benefits were accrued. According to the Respondent, the factor which brought that Fixed Term Contract to an end and, consequently, terminated the Complainant’s employment with the Respondent was the expiry of the one-year period.

With reference to the Complainant’s WRC complaint form and submissions wherein, in reference to Section 34 (4) of the Acts, he characterises the conclusion of his employment with the Respondent, on 2 December 2019, as “retirement “, the Respondent submits that Section 34 (4) has no application to the circumstances of how the Complainant’s employment came to an end on 2 December 2019, as the section in question only relates to retirement ages. According the Respondent, the Complainant’s compulsory retirement was on 2 December 2018, when he reached the age of 65.

The Respondent reiterated that the termination of the Complainant’s employment with the Respondent, on 2 December 2019, came about as a result of the expiry of his Fixed Term Contract.   In this regard, the Respondent submits that the Complainant’s portrayal of the reason for termination as the imposition of a compulsory retirement age by the Respondent is misconceived and incorrect.

In further reference to the Complainant’s submissions, in support of his complaint, the Respondent contends that they contain a number of misleading statements about the Respondent. In particular, the Respondent cited the statements that they (1) “had not set out any reasons whatsoever for deciding to issue a notice of termination other than that it was now applying a retirement age of 66 as per HSE circulars” and (2) that the Respondent was “enforcing a retirement age of 66”.

According to the Respondent, the above referenced statements are either a misconstrual or a misunderstanding, on the part of the Complainant, of the facts, which according to the Respondent are clear as follows:

         i.            The Respondent did not issue a notice of termination to the Complainant to bring an end to his employment on 2 December 2019. Rather, the Respondent submits that the Complainant’s Fixed Term Contract came to a natural end due to the effluxion of time.

       ii.            At no stage did the Respondent assert that it was applying, nor did it apply, a retirement age of 66 years nor has the age of 66 ever been the compulsory retirement age in the public service for health sector employees.

According to the Respondent, the Complainant appears to be confusing, once again, compulsory retirement age and the expiry of a fixed term contract without it being renewed.

In response to the Complainant’s reliance on a comparator, whom he had named in his complaint, the Respondent stated that there was no such person within the Respondent’s employment. In addition, the Respondent submitted that, in any event, if the Complainant seeks to choose a comparator by virtue of that comparator’s retirement age (perhaps being an employee who does not have a retirement age by virtue of the 2004 Act) such a person is not a suitable comparator in the circumstances of the Complainant’s complaint.

According to the Respondent, a relevant comparator to the Complainant, under the age ground, in a comparable situation would be an employee of the Respondent, of a different age to the Complainant, who is employed under a Fixed Term Contract when they are over the compulsory retirement age.

The Respondent submitted that Section 6 (3)(c) of the Employment Equality Act, 1998 – 2015, is relevant in this case. Accordingly, the Respondent submits that the Fixed Term Contract made available to the Complainant in accordance with the interim arrangements under Circular 015/2017 is comprehended by Section 6(3)(c) of the Acts on the basis that it was:

         i.            objectively and reasonably justified by legitimate aim, and

       ii.            the means of achieving that they were appropriate and necessary.

In support of their submission in this regard, the Respondent cited the Minister for Public Expenditure & Reform’s Report, [dated 26 March 2019, required pursuant to Section 3A of the Public Service Superannuation (Miscellaneous Provisions) Act 2004]. The Respondent submitted that this Report sets out the clear social policy objectives for the introduction of the 2018 legislation and the introduction of the interim arrangements, of which the Complainant availed. Consequently, the Respondent submitted that, for the reasons set out in the Report, the fixed term arrangements availed of by the Complainant come within Section 6(3)(c) of the Acts.

According to the Respondent’s submission, the State has an entitlement to set a mandatory retirement age for public service employees in pursuit of its legitimate aims in the public interest. The Respondent further submitted that, if there is a proposed change in the policy around mandatory retirement ages, that does not undermine the State’s legitimate aim in previously setting a different retirement age.

In support of its submission in this regard, the Respondent cited the case of Palacios de la V ill v Corefiel Servicios SAC [411/05]. The Respondent submitted that the CJEU decided that the automatic termination of a worker under Spanish law, at 65, was justified under Article 6, as it pursued a legitimate aim - intergenerational fairness and regulation of the national labour market. The Respondent also submitted that the Court, in that case, had regard for financial compensation in the form of retirement pension and that collective agreements provided a certain amount of flexibility.

According to the Respondent, in the within case, at the time a Fixed Term Contract was made available to the Complainant (subject to approval), the aim of the Respondent in doing so (as set out in Circular 015/2017) was to facilitate the employee to continue to work and earn an income, if he so desired, until such time as he became eligible to receive the Contributory State Pension.

The Respondent further contends that making a one-year Fixed Term Contract available to the Complainant was objectively and reasonably justified by that legitimate aim on the basis that it was intended as a temporary measure only, linked to the point at which the Complainant became eligible to receive the Contributory State Pension on reaching the age of 66.

According to the Respondent, making a Fixed Term Contract available to the Complainant, for a period of one year only, was an appropriate and necessary means of achieving it as legitimate aim. The Respondent submitted that it was appropriate for the Fixed Term Contract to be linked to the point in time at which the Complainant would become eligible for the Contributory State Pension and a term of one year was no less no more than what was necessary.

d)      Caselaw:

The Respondent submitted that there have been a number of adjudication decisions in relation to similar discrimination claims arising out of Fixed Term Contracts pursuant to the Government’s interim arrangements prior to the coming into force of the Public Service Superannuation (Age of Retirement) Act 2018.

According to the Respondent’s submission, the Adjudication Officer, in each of the following cases, found that no discrimination occurred: (a) Sean Hallinan v National Museum of Ireland [ADJ-00017346], (b) A Civil Servant v A Government Department [ADJ-00021965],(c) A Civil Servant v A Government Department [ADJ-00013774] and (d) Siobhan MacCobb v Trinity College [ADJ-00020129].

In addition, the Respondent sought to rely upon the following case law in support of their position:

·       Judy Bamford v Citizens Information Form Service Ltd [ADJ-00017442]

·       Mangold v Helm [C-144/04]

·       Hornfeldt v Posten Meddelande [C-141/11]

·       Rosenbladt [C-45/09]

·       Fuchs and Kohler [C-159/10 and C-160/10]

e)      Conclusion:

In conclusion, the Respondent submitted that the Complainant’s complaint should be dismissed for the following reasons:

1.       The Complainant has raised no prima facie case of discrimination on the basis that he was fully aware, at the time of entering into the Fixed Term Contract, what the terms of that contract were and that no further retention beyond the expiry of the contract will be considered.

2.       Any complaint regarding the Complainant’s compulsory retirement at age 65, on 2 December 2018, is out of time and the WRC has no jurisdiction to hear it.

3.       Notwithstanding the above preliminary points and, in the event that the burden of proof shifts to the Respondent, the presumption of discrimination is rebutted in that:

a.       The Respondent’s actions in making a Fixed Term Contract available to the Complainant, notwithstanding that he was over the compulsory retirement age for his employment, was comprehended by Section 6 (3) of the Act.

b.       The expiry of the Complainant’s Fixed Term Contract and consequent termination of his employment was not discriminatory, and the WRC has previously decided in similar cases that the circumstances do not amount to discrimination.

Based on all of the above the Respondent submitted that the Complainant’s complaint of discriminatory dismissal on age grounds should not be upheld.

With regard to the issues arising in relation to this complaint, the Complainant and the Respondent made written submission and also provided oral evidence at the Hearing. I have carefully considered and evaluated all of the evidence adduced and submissions made in this regard in reaching my determinations as set out below.

The Complainant’s complaint relates to his “enforced retirement” on 3 December 2019, which he alleges constituted an act of discrimination on the grounds of age in contravention of the provisions of the Employment Equality Act, 1998 – 2015. In this regard, the Complainant contends that the Respondent’s decision to terminate his employment amounted to an act of discrimination as per Section 6(2)(f) of the Act and in contravention of Section 8 of the Act.

In response to the Complainant’s complaint, the Respondent raised two Preliminary Objections before proceeding, on a without prejudice basis, to respond to the substantive allegations contained in the complaint.

Consequently, I commenced my consideration of the complaint by first addressing the Preliminary Objections raised by the Respondent.

Preliminary Objection one – Burden of Proof:

The Respondent’s first preliminary objections is based on the contention that the Complainant has not established a prima facie case of discrimination and that the complaint should, therefore, be rejected.

Section 85 A (1) of the Employment Equality Acts 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, facts from which it may be presumed that there has been discrimination. In other words, the Complainant must establish primary facts upon which the claim of discrimination is grounded. In the event that he/she succeeds in doing so, then, and only then, the burden of proof passes to the Respondent to prove the contrary.

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.

In particular, the Labour Court elaborated on the interpretation of Section 85A(1) in Melbury v. Valpeters (EDA/ 0917) when stating that a complainant “must first establish facts from which discrimination may be inferred. What does 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, there must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be evaluated to a factual basis upon which an inference of discrimination can be drawn”. The Court went on to state that Section 85A (1): "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".

In relation to the within case, the evidence clearly shows that the Complainant was employed by the Respondent on the basis of a Contract of Employment which is signed and dated 16 February 2006. This Contract explicitly sets out that the retirement age for staff employed by the Respondent is 65 years of age.

The evidence adduced further shows that the Complainant duly completed and signed the Respondent’s Retirement Form (HR107(a) v1.3) on 27 September 2018. This Form clearly set out all of the details pertaining to his retirement which was due to commence on 2 December 2018, the date on which he reached 65 years of age. In addition, the evidence clearly shows that the Complainant’s pension came into payment on his retirement date, i.e. 2 December 2018 and that his retirement lump sum payment was also paid at that time.

Based on the above established facts, I find that the Complainant retired from the permanent employment of the Respondent, in line with the terms of his Contract of Employment, on 2 December 2018.

Notwithstanding the clarity of the position with regard to his specific occupational pension, the Complainant found himself part of a group of employees nationally who had been impacted by a social policy decision made by the Government in 2014, when the qualifying age for the Contributory State Pension (CPS) was raised from 65 to 66 years of age.

The Complainant’s position was further impacted when, on 5 December 2017, the Government agreed to increase the compulsory retirement age for public service employees to age 70. In addition, the Government also agreed that, in advance of the legislation being enacted, which would give effect to that decision, an interim arrangement could be introduced for serving public servants, who reached the age of 65 in the period between the announcement of the Government decision on 5 December 2017 and the coming into force of the necessary legislation to give it legal effect. This interim arrangement would enable such staff to remain in employment until they reached the age of eligibility for the CSP, by the application of a one-year Fixed Term Contract.

Details pertaining to this arrangement in the Complainant’s sector of employment is covered in a Department of Health Circular, number 15/2017, which issued on 6 December 2017. That Circular stipulated that the arrangement only applied to “public servants who have a compulsory retirement age of 65 and who reached the age of 65in the period to which the arrangements apply”.

In particular, I note the following specific aspects of the arrangement as set out in Circular 15/2017:

·       The Public Servant retires at 65 years of age,

·       The retirement lump sum is paid,

·       Pension may be suspended/abated as appropriate during the retention period,

·       No pension contribution is payable, and no pension benefits are accrued during the period of retention and

·       No application for retention beyond the age of eligibility for the CPS (66 years of age) will be considered.

The evidence adduced clearly shows that, on 8 August 2018, the Complainant applied for the additional one-year retention under the terms of Circular 15/2017. The application was subsequently approved by the Respondent’s management and the Complainant accepted the offer by signing a document on 29 August 2018, thereby indicating that he clearly understood the terms of the retention, which included, inter alia, “that retention is for a maximum of one year from the date of my 65th birthday until I reached the age of 66).

Based on the acceptance of his request for retention, pursuant to Circular 15/2017, the Complainant commenced an additional year of employment under a Fixed Term Contract, which was due to expire until December 2019. During this retention period, the Complainant was paid at Point 1 of the salary pay scales for the role. This was done to avoid any impact on the Complainant’s pension, which he continued to receive throughout this period, by way of suspension or abatement.

The evidence adduced clearly shows that the Complainant’s Fixed Term Contract came to an end on 1 December 2019 for no reason other than the expiry of the term as set out in the contract.

Consequently, based on the above findings, I am satisfied that the termination of the Complainant’s Fixed Term Contract had nothing to do with his retirement, which, as is clearly set out above, took place one year earlier in December 2018. Therefore, the Complainant’s claim that he was forced into retirement in December 2019 is without foundation.

In his submission in support of his claim of discrimination, the Complainant nominated a comparator, whom he suggested was employed in a comparable role and was still working at the age of 67. During the oral hearing, the Respondent indicated that no such individual existed within their employment. It emerged during further exchanges between the parties that the comparator had been incorrectly identified. Consequently, no relevant evidence was submitted with regard to the existence of a competitor.

Having carefully considered all of the evidence adduced in this case, I find that the Complainant has, as contended by the Respondent in their first Preliminary Objection, failed to establish a prima facie case of discrimination in line with that outlined in Section 85A (1)the Employment Equality Acts, such that the burden of proof would transferred to the Respondent.

Therefore, I find that the Respondent’s initial Preliminary Objection in relation to Burden of Proof is well-founded and, as a consequence, I find that Complainant’s complaint is rejected. On that basis there was no requirement to consider any of the Respondent’s remaining points or submission.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant has failed to establish a prima facie case of discrimination on the grounds of age and his complaint is, therefore, not upheld.

Employment Equality Acts

Age Discrimination

Compulsory Retirement Age