Complainant

Respondent

Anonymised Parties

A Cleaner

A Cleaning Company

Representatives

Barry Crushell of Crushell Solicitors

 N/A

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-00034093-001

30/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00034093-002

30/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00034093-003

30/01/2020

The complainant alleged that she was effectively dismissed following a transfer of undertaking on 2nd January 2020 when the respondent refused to engage her because she was 66 years of age.

The complainant worked on a number of different sites as a cleaner for her previous employer. On 2nd January 2020, she received a call from her co-worker asking if she had received a call from the respondent. She stated that her co-worker added that the respondent had taken over the cleaning operations in one of the offices where they both worked and that they would now be employed by the respondent in respect of the hours they worked at that location.

Given that this was the first she had heard of a transfer of her employment, the complainant contacted both the respondent as well as Ms A in her previous employer on 6th January. The respondent told her in in response that she had to contact her previous employer. Ms A subsequently informed the complainant that all of the documentation had been sent to the respondent in December and stated that she should have been engaged by them as her two colleagues were when the transfer happened on 2nd January 2020. She also informed the complainant that the respondent had informed her that they would not be engaging the complainant because she was over 65 years of age.

Ms A stated in her evidence that she had informed the complainant in writing on 7th December 2019 that her employment would be transferring to the respondent. The complainant stated that she did not receive this letter. Ms A also claimed that she sent the names and employment details of the three transferring employees to the respondent on 13th December, all of whom worked on the cleaning contract. She was subsequently informed on 17th December by the respondent that while they would be engaging two of the three transferring employees, they would not be taking the complainant because they had a policy of not having employees older than 65 years in the workforce. Ms A claimed that she emailed the respondent on a number of occasions after this but did not receive a reply. 

The complainant also stated that she had a contract of employment with her previous employer and that there was no provision surrounding a retirement age in this contract

The respondent’s witness highlighted that the complainant’s previous employer did not make the complainant aware in writing that her employment would be transferring on 2nd January.

The respondent’s representative agreed that they did not engage Ms A because she was 66 years of age and stated that all of the respondent’s employees had to retire at 65. She also added the company’s insurance policy did not allow the respondent to employ any workers who were over 65 years old.

Art. 3(1) of the TUPE Regulations provides that a Transferor’s rights and obligations arising from a Contract of Employment or from an Employment Relationship are transferred to the Transferee.

In Spijkers v Gebroeders Benedic Abattori CV and Alfred Benedik en Zonen BV (1997) IRLR 255 the CJEU stated that ‘in order to establish whether or not such a transfer has taken place…it is necessary to consider whether…….the business was disposed of as a going concern, as will be indicated inter alia by the fact that its operation was actually continued or resumed by the new employer, with the same or similar activities’. In the instant case, the respondent took on an identical role as the complainant’s previous employer and, therefore, continued as a going concern with the same activities.

In Hernandez Vidal (Francisco) SA v. Gomez Perez (1998 ECR1/8179, 1999 IRLR 132) the Court decided that a group of wage earners specifically and permanently assigned to a common task amount to an economic entity. In the instant case, given that 2 of the 3 cleaners working in the same office building transferred to the respondent, I am satisfied the that complainant’s employment should have transferred on the transfer date as she was also part of this economic entity.

Having established that she was entitled to transfer to the respondent under the TUPE Regulations, I must now examine whether or not the respondent’s refusal to engage the complainant was discriminatory.

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 she 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, I find that the Complainant has sufficiently established a prima facie case that an act of discrimination took place in relation to the termination of her employment with the Respondent by means of compulsory retirement at 65. Therefore, the burden of proof switches to the respondent to refute the complainant’s complaint in this regard.

The respondent’s rebuttal of the complainant’s claim of discrimination on the age ground rests on two specific premises. Firstly, the respondent contended that a “normal retirement age” of 65 had been established in the company and applied to the complainant and secondly asserted that their insurance policy did not allow the company to engage workers who are over 65.

While I note the respondent’s claim that they had established a normal retirement age of 65, I am satisfied that there was no explicit contractual arrangement between the respondent and the complainant with regard to an established retirement date given that the contract she had with her previous employer, the terms of which the respondent could not alter unilaterally, did not stipulate a retirement age.

In Richard Lett vs Earagail Eisc Teoranta (EDA 1513), the Labour Court found that: “an employer’s employment policy in relation to retirement can take effect as a contractual condition of employment which is, prima facie, protected by s. 34 (4) of the Act. However, in the Court’s view that could only arise where the policy is promulgated in such a manner that the employees to whom it applies either knew, or ought to have known, of its existence.”

Having carefully reviewed all of the evidence adduced and where no express term existed in the Complainant’s contract of employment requiring her to retire at an appropriately established retirement date, I can only conclude that the Complainant had no clear, actual knowledge as to the existence of such a retirement ate.

While the respondent also asserted that its insurance policy precluded the engagement of workers who were over 65 years of age, a copy of this policy was not presented in evidence and there was no suggestion that the company had queried this with their insurer or sought alternative cover elsewhere.

Consequently, taking all of the above into consideration, I am satisfied that the Complainant was dismissed because of her age and that the respondent discriminated against her.

Having found that the complainant was discriminated against, I note that in accordance with Section 82 (1)( c) of the Act I may award compensation which is effective, proportionate and dissuasive.

Given that complainant worked for 10 hours per week at an hourly rate of €10.80 on the contract which transferred, I find that the respondent should pay her €5,616, which represents 12 months’ salary. Given that this award relates to the effects of the discrimination, it is not subject to any payroll taxes.

CA-00034093-002: This is a duplicate claim and has been dealt with in the context of CA-00034093-001

CA-00034093-003: This is a duplicate claim and has been dealt with in the context of CA-00034093-001

Retirement age; discrimination