ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00027325

Parties:

Complaints:

Date of Adjudication Hearing:  16/04/2021

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

In accordance with Section 79 of the Employment Equality Acts 1998-2015 (‘the Acts’), the Director General of the Workplace Relations Commission (‘WRC’) referred the aforesaid complaints received on 28th February 2020, to me for adjudication.  I held a remote hearing on 16th April 2021 pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designates the WRC as a body empowered to hold remote hearings. I gave the Parties an opportunity to be heard and to present any evidence.  The Complainant was in attendance with her Solicitors from O'Mara Geraghty McCourt.  At the outset, it was confirmed that two complaint reference numbers had generated in error and accordingly CA-00034921-001 was withdrawn.  It was also confirmed that a two-fold complaint of discrimination and discriminatory dismissal was proceeding under the ground of age only and the ground of race and victimisation complaint indicated on the complaint form were not being pursued.  As the Respondent was subject to a High Court Winding-up Order, the appointed Liquidator attended in its place.  The WRC is empowered to hear this complaint pursuant to Section 678(2) of the Companies Act 2014 (as amended).  A decision from the WRC in respect of this complaint is required for payment out from the Social Insurance Fund pursuant to Section 6(1) & (2)(a)(viii)(III) of the Protection of Employees (Employers’ Insolvency) Act 1984 (as amended) being a matter falling within Section 103(3) of the Employment Equality Acts.  It was also common-case that as the Complainant’s evidence was uncontested it was unnecessary to await legislative amendment providing for the taking of evidence on oath on foot of the Supreme Court Judgement in Zalewski -v- Adjudication Officer and WRC, Ireland and the Attorney General (2021) IESC 24.  The Parties were also advised that this hearing was being held in public.  Owing to the sensitive nature of the subject-matter of this complaint and having heard from the Parties in relation to same, I have exercised my discretion to anonymise this decision.  All of the documentation referred to herein was furnished and all evidence adduced has been considered.

Background:

This is a complaint of discrimination and/or discriminatory dismissal on the ground of age contrary to Section 6 of the Employment Equality Acts.  The Complainant claims that she was employed as a Senior Staff Nurse by the Respondent Nursing Home from 10th May 2014 until compulsorily retired on 28th October 2019.  At the material time, she received remuneration of approximately €5883 gross per month.  She seeks an award of compensation in respect of the discrimination suffered and consequent loss of almost a year’s work and loss of redundancy payments before the Respondent closed and went into liquidation.  As the Respondent is subject to a High Court Winding-up Order, the appointed Liquidator appeared in its place and as such, this complaint was undefended.

Summary of Complainant’s Case:

The Complainant gave direct oral evidence outlining the factual background to this complaint supplementing a written submission made on her behalf.  The Respondent operated as a Nursing Home for chronically ill and elderly residents.  The Complainant had been employed as a Senior Staff Nurse with the Respondent from 10th May 2014 until her employment was terminated on 28th October 2019.  She was initially provided with a ‘Relief Panel Fixed Term Contract’ valid from 10th May 2014 until 9th May 2015 requiring her to work “as required when the need arises varied hours up to 39 hours of a standard 39hr week.”  Although it contained the usual clauses associated with a Fixed Term Contract, it also included a retirement clause providing: “Retirement age is 65 years.  Employment beyond retirement age is exceptional and only by agreement of the employer.”  There were no further renewals of this Fixed Term Contract or any other terms of employment in writing and the Complainant’s employment effectively became a contract of indefinite duration.  Her duties included medication management, supervision of and allocation of duties to Healthcare Assistants, nursing care for residents including taking blood samples, liaison with and assisting doctors including assistance to doctors on ward rounds, writing up care plans for patients and liaising with residents’ next of kin in relation to same, participating in multi-disciplinary meetings and liaison with specialists for care of residents.  She had an exemplary work record, she remained fit and healthy never taking any sick leave and there were no capability issues regarding her work.  As at the termination of her employment she worked up to 40 hours per week.  Occasionally, she worked longer hours / shifts when required and at all material times worked as many hours, if not more hours than other nurses in a comparable position.  She received remuneration of approximately €5883 gross per month.

On 27th July 2018, the Complainant was informed by letter from the CEO of the Respondent that she would retire compulsorily on 31st October 2018 upon reaching her 65th birthday as per the Company retirement policy.  In response, the Complainant wrote to the CEO on 8th August 2018 informing her that she did not intend to retire and wished to continue in employment on the same terms.  On foot of her letter, an Administration Manager and the Clinical Nurse Manager (also the Complainant’s Line Manager), Ms A, met with the Complainant to discuss her request to remain in employment following 31st October 2018.  On foot of this meeting, it was confirmed to the Complainant that the Respondent would extend her employment for a period of one year on a Fixed Term Contract.  The Complainant was duly issued with a Contract entitled ‘Post-Retirement Fixed Term Contract of Employment’ with a term of employment from 31st October 2018 until 30th October 2019.  Whilst it contained the usual clauses associated with a Fixed Term Contract, no objective justification was given either verbally or in writing to meet the Respondent’s obligations under Section 6(3)(c) of the Employment Equality Acts which provides that offering a person over retirement age a Fixed Term Contract shall not constitute age discrimination if it is objectively and reasonably justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.  The Complainant did not have any independent advice at the time and had not questioned the adequacy of this Fixed Term Contract as she had been so grateful to receive an extension of employment.  Throughout the following year, the Complainant continued in her role without any capability issues.  She was completely committed to her work and maintained an exemplary attendance record.  The Respondent was regularly short-staffed and she often worked long shifts / up to 60 hours per week. 

In July 2019, the Complainant entered into discussions with Ms A regarding continuing in her employment following 31st October 2019.  She had enjoyed a good relationship with Ms A who indicated her support for her continuance of employment as there was still plenty of work and invited her to apply to her in writing to remain in employment.  Accordingly, by letter dated 16th July 2019, the Complainant wrote to Ms A stating that she wished to remain in employment for a further year from 31st October 2019.  The Complainant did not receive any response to her letter and was surprised and concerned as she had clearly indicated she was willing and able to continue working.  In the absence of any response from Ms A, the Complainant raised the matter directly with the Director of Nursing, Mr B.  He initially informed her that he was too busy to meet but subsequently agreed to meet.  A brief meeting took place during the first week in September 2019 where the Complainant clearly informed Mr B that she wished to remain in employment following 31st October 2019.  He informed her that it would not be possible for her to remain in employment and that she would only have work until the end of October 2019.  He also verbally informed her that there was a plan all along to recruit non-EEA nurses to fill positions with the Respondent.  The Complainant was very taken aback by this response, as she was fit, willing and able to work.  There was also work available so she could not see any reason why she could not continue working.  She questioned why Ms A had represented to her that there was work available for her.  She reminded Mr B of her commitment to her work including an occasion when she had walked an hour and half through the snow to work to relieve other staff who lived further away.  Mr B did not offer any rationale or objective justification for the decision to terminate her employment either verbally or in writing.  

On 22nd October 2019, the Complainant wrote by email to Mr B copying same to the Chairman of the Board of Directors setting out her position and requesting continuation of her employment stating: “I am writing to you to remind you that I wish to stay working in (the Respondent) Nursing Home after 31st October this month (my 66th birthday).  I am fit and able to work and have never been out on sick leave in the last five years, including in the last year.  As you know, Ms A knowing that I wanted to stay working in (the Respondent) after 31st October, asked me last July to send in a letter requesting that I continue to be employed after 31st October.  I duly sent the letter last July addressed to her, which you referred to in a conversation with me.  Nevertheless I note that I received no written reply, good, bad or indifferent, from Ms A or anyone else in (the Respondent’s) management.  I note that no work has been rostered for me after the 28th October and Ms A has indicated to me that it is not intended to roster me.  You yourself have said to me that “you will have work for October”.  The Complainant also noted that she was aware that the Respondent had applied to obtain visas for non-EEA national nurses who were due to commence work there shortly.  She was concerned that she was to be replaced without cause.  She noted that employers could only apply for visa permission to employ non-EEA nationals when no suitable EEA nationals were available to work in the same occupational category.  She pointed out that this was patently not the case in this instance as she was ready, willing and able to work as clearly expressed to management on several occasions.  On 25th October 2019, the Complainant received a final one-line communication from Mr B confirming that her last working day would be Monday 28th October 2019.  Accordingly, the Complainant’s employment was terminated on that date.  She was extremely upset at the manner in which her employment had been terminated and the residents she cared for were also distressed by her departure and some of them sent her cards.  She also maintained contact with some of the staff.  At the time of her departure, she was aware that the Respondent was recruiting agency staff and Ms A had also been undertaking interviews.  She also became aware that non-EEA / younger nurses were recruited in November 2019 after her departure and would have taken over her duties.  The Respondent operated for another eleven months thereafter before being subject to High Court Winding-up Proceedings on the ground of insolvency.  Some of the staff were redeployed nearby whilst others received statutory redundancy and a circa €3000 ex gratia payment which she had been denied.  Thereafter, the Complainant found some relief work but no regular employment and is in receipt of her State Pension.  Having received an excellent reference from Ms A, she was of the view that her employment was terminated solely on the basis of her date of birth and hence her age.

On behalf of the Complainant, it was submitted that there was a lack of any objective justification by the Respondent to justify forcing her to retire.  On 19th November 2019, the Complainant submitted a request for information via the statutory questionnaire, Form EE2 to the Respondent, outlining the circumstances of her compulsory retirement.  She also sought confirmation that younger nurses from a non-EEA country had been recruited by the Respondent thereby replacing her and informed the Respondent that she believed that she was being discriminated against on the grounds of age and race.  The Respondent did not reply to this request.  A copy of the Form EE2 was also sent to Solicitors who had acted for the Respondent in a related matter but no response was received.  It was submitted that adverse inferences in favour of the Complainant could be taken from the absence of a response.  Accordingly, this complaint was referred to the WRC on 28th February 2020.

In light of the uncontested factual background, it was submitted on behalf of the Complainant that the Respondent had acted unlawfully and in breach of the Employment Equality Acts on the ground of age in a number of respects including: (1) refusing to engage meaningfully with the Complainant in relation to her request to remain in employment for an additional year; (2) failing to show that its refusal to allow her to remain in employment corresponded to a real need and legitimate objective and was an appropriate or necessary means to achieve that objective; and (3) failing to consider the Complainant’s request to remain in employment in accordance with the Code of Practice on Longer Working, noting that she had complied with the Code whilst the Respondent had not.  The decision not to renew her Fixed Term Contract amounted to discriminatory dismissal on the ground of age contrary to Section 6(2)(f) of the Employment Equality Acts.  Put quite simply, but for her age the Complainant would have remained in employment with the Respondent until it ceased trading. 

Legal Submissions

Reliance was placed upon Section 6 of the Employment Equality Acts which defines discrimination: “(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…, and (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are… (f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”).  Section 6(3)(c) of Acts further provides that offering a person over the retirement age a Fixed Term Contract shall not constitute age discrimination if “(i)it is objectively and reasonably justified by a legitimate aim, and (ii) the means of achieving that aim are appropriate and necessary.”  Section 34 of the Employment Equality Acts provides for savings and exceptions regarding retirement age and specifically, Section 34(4) provides: “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.”  As outlined in her evidence, at the time that the Complainant was provided with the Fixed Term Contract in 2018 upon her reaching the retirement age of 65, no objective justification was given either verbally or in writing and the Fixed Term Contract was silent in terms of satisfying the requirements of Section 6(3)(c) as set out above.  It therefore follows that it is no defence to her compulsory retirement in 2019 to say that she was issued with a Fixed Term Contract in 2018. 

Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination: “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 requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred.  It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.  In Mitchell -v- Southern Health Board [2001] ELR 201, the Labour Court emphasised that in the first instance, the Claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”.  It continued: “It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment.”  In Melbury -v- Valpeters EDA/0917, the Labour Court elaborated that Section 85A: “Provides for the allocation of the probative burden in cases within its ambit.  This requires that the 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.  Section 85A 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 Madarassy -v- Nomura International Plc [2007] IRL R246,the Court of Appeal for England & Wales considered how a Court or Tribunal should approach the questions posed by the corresponding provision of UK legislation on the burden of proof.  In a Judgment concurred with by Lawes and Morris J.J., Mummery L.J.held that in employment discrimination cases the law requires that a Tribunal must first examine the evidence to determine whether the action complained of by the employee would in the absence of an adequate explanation be unlawful discrimination.  If the Tribunal makes that finding, then the burden of proof shifts to the employer to disprove the allegation of unlawful discrimination.  The Labour Court inDirector of Public Prosecutions -v- Robert Sheehan (EDA0416) found that: “In order to shift the probative burden it is not necessary for the Complainant to adduce direct evidence of discrimination on either the gender or the age ground.  As was pointed out by Neill L.J. in King v Great Britain China Centre [1992] 1CR 516 “such evidence will seldom be available since those who discriminate rarely do so overtly and the outcome of a case will usually depend on what inferences it is proper to draw from the primary facts found by the Court.”  The rationale of this approach was explained in Citibank -v- Ntoko [2004] 15ELR 116 where the Court stated: “This approach is based on the empiricism that the person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the Complainants power of procurement.  Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging Complainants to prove something which is beyond their reach and which may only be in the Respondent’s capacity of proof.”  In order to determine whether the Complainant has established a prima facie case a three-tier test is generally employed: first the Complainant must establish that she is covered by the relevant discriminatory ground, secondly she must establish that the specific treatment alleged has actually occurred and thirdly it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.  In Donnellan -v- The Minister for Justice, Equality and Law Reform & Ors [2008] IEHC 467,McKechnie J. stated: “It is clear that the imposition of mandatory retirement age is discriminatory, per se, under the directive, in that, it places one person at a disadvantage to another, who would otherwise be in the same situation on the grounds of age alone.”  It was submitted the Complainant has established a prima facie case of discrimination on the ground of age and the burden of proof now shifts to the Respondent.

Reliance was also placed upon the Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017 (S.I. 600/2017) which provides: “Retirement ages in the private sector are generally set out by means of: (a) An express term in the employee’s contract of employment, (b) an implied term in the employees’ contract of employment; (c) relevant policies, for example a staff handbook; and (d) custom and practice generally arising from the pension date set out in the relevant occupational pension scheme.”  Regarding objective justification the Code provides: “Essentially the law is now that compulsory retirement ages set by employers must be capable of objective justification both by the existence of a legitimate aim and evidence that the means of achieving that aim by an employer may include: intergenerational fairness (allowing younger workers to progress); motivation and dynamism through the increased prospect of promotion; Health and Safety (generally in more safety critical occupations); creation of a balanced age structure in the workforce; personal and professional dignity (avoiding capability issues with older employees); or succession planning.”  It was submitted that as there is no evidence that any of these factors came into play in the instant case at any stage of the communications between the Parties no further consideration of what constitutes objective justification is required.  The Code of Practice also sets out the questions for an employer and employee to consider where there is a request to work longer as follows: “For the employee:  Is the employee confident that he/she can continue to perform the role to the required standard?  Can flexible working options or alternative roles be considered?  What is the duration of the extension being sought?  Are there pension implications?  Are there contract of employment implications?  For the employer:  Are there grounds on which to accept or refuse the request e.g. can the retirement be justified on a legitimate and objective basis?  It is important to note, that the Equality (Miscellaneous Provisions) Act 2015 requires that a fixed term contract of employment be objectively justified.  What are the objective criteria applicable to the request?  This should form the basis of any assessment to work beyond retirement age to ensure an equal and consistent approach to addressing this and future requests?  How would the arrangements for the employee remaining on the workforce be contractually framed e.g. fixed term contract?  Could granting the request be on the basis of a more flexible working arrangement (e.g. less than full hours or an alternative role.)”  In this respect, it was submitted that the Complainant was fit and capable and was eager to remain in her role.  There was no evidence that any of these matters had been considered and no explanation or objective justification was offered by the Respondent for the decision to refuse to renew her Fixed Term Contract at any stage.  

The Code of Practice also sets out the procedure for employers and employees to follow in dealing with requests to work longer including: “(1) The employee should make such a request in writing no less than three months from the intended retirement date to be followed up with a meeting between the employer and employee.  This meeting gives both the employee an opportunity to advance the case and allowing the employer to consider it.  It is important that the employee is listened to and that any decision is made on fair and objective grounds.  (2) The employer’s decision should be communicated to the employee as early as practical following the meeting.  (3) Should the decision be to offer a Fixed Term contract post-retirement age, the period should be specified, setting out the timeframe, and the legal grounds underpinning the new contract should be made clear...  (4) Where the decision is to refuse this request, the grounds for the decision should be set out and communicated in a meeting with the employee.  This will help the employee to understand why the request has not been granted and give the employee confidence that his/her case has been given serious consideration and that there are good grounds for refusing the request.  The applicant should have recourse to an appeal mechanism…  (5) An employee may be accompanied to a meeting by a work colleague or union representative to discuss a request to the employer to facilitate working longer and in any appeals process around same.”  It was submitted that whilst the Complainant followed the steps, there was no adherence to the above by the Respondent in the instant case.

The Workplace Relations Commission in McGrath -v- Focus Ireland (ADJ-00018823) involved the refusal to renew a Fixed Term Contract on the ground of age.  In his decision, the Adjudication Officer addressed the justification of differences of treatment on the ground of age, referring to both the Employment Equality Acts and EU Directive 2000/78, which prohibits discrimination on four grounds including age.  He noted that the differential treatment of employees according to their age, may be permitted so long as it is: “Objectively and reasonably justified by a legitimate aim and the means of achieving that aim are appropriate and necessary…”  and found that: “The aims relied on by the Respondent, for example relating to fitness and dignity, were legitimate but the means used to achieve these aims were not appropriate or necessary.  It was not necessary to use the blunt indicia of age when fitness could have been readily assessed in other ways.”  In the matter of Anne Roper -v- Raidió Teilifís Éireann (ADJ-00019084) (under appeal), the Workplace Relations Commission assessed fairness of the compulsory retirement of the Complainant on the grounds of ensuring intergenerational fairness and promotion of younger workers in the Respondent Station.  The Adjudication Officer found that the effect of her departure was so confined that it could not be objectively justified and that the means used to achieve the outcome of intergenerational fairness was not appropriate or necessary.  In the instant case it is clear the Respondent did not even attempt to justify its decision to refuse the Complainant’s request to continue in employment.  Mr B simply informed her that he would not have work for her beyond October 2019 and that there had been a plan all along to recruit non-EEA nurses to work in the Respondent.  On the basis of the foregoing, it was submitted that the Respondent did not satisfy Section 34(4) of the Employment Equality Acts as set out above.  For the sake of completeness and lest the termination of the Complainant’s employment was financially motivated, reliance was placed upon Case C – 388/07, R (on the application of the Incorporated Trustees of the National Council on Ageing) -v- Secretary of State for Business, Enterprise and Regulatory Reform [2009] E.C.I. 1569,where the Court of Justice stated that although the establishment of a mandatory retirement age might be legitimate where there are social policy objectives to be satisfied, it would not be permitted for ‘purely individual reasons particular to the employer’s situation such as cost reduction or a boost to competitiveness.”

On behalf of the Complainant, it was submitted that the facts as summarised are very clear.  In July 2018 she was informed by letter from the Respondent that she would retire compulsorily on 31st October 2018 upon reaching her 65th birthday as per the Company retirement policy.  Upon her request she was granted a further year’s employment on a Fixed Term Contract until 30th October 2019.  No objective justification was provided to the Complainant either in writing or verbally, contrary to Section 6(3)(c) of the Employment Equality Acts.  In July 2019, the Complainant entered into discussions with the Respondent regarding her intention to continue in employment following 30th October 2019.  She was invited to apply to remain in employment by her Line Manager, Ms A.  On 16th July 2019 the Complainant applied in writing to the Respondent in compliance with the provisions of the Code of Practice on Longer Working.  In contravention of the Code, she did not receive a response to her request.  Undeterred, she raised the matter again with Mr B, Director of Nursing who informed the Complainant that it would not be possible for her to remain in employment.  This decision was not objectively justified.  Mr B then proceeded to inform the Complainant that there was a plan to recruit non-EEA nurses to fill positions with the Respondent.  On foot of this information the Complainant emailed Mr B copying the Chairman of the Board of Directors of the Respondent.  She set out her concerns that she was to be replaced without cause by non-EEA nurses.  She did not receive a response to the queries she had raised and instead received a one-line letter from Mr B on 25th October 2019 confirming her last working day would be Monday 28th October 2019.  Again, this decision was not objectively justified by a legitimate aim.  At the time the decision was taken to force the Complainant’s retirement there was a continuing role for her within the Respondent.  This is supported by Mr B’s admission that there was a plan to recruit non-EEA nurses to fill roles within the Respondent which was actioned when non-EEA nurses began working in the Respondent in November 2019.  In circumstances where the Complainant was fit and capable to continue in employment, where the Respondent did not even attempt to objectively justify her compulsory retirement and given the subsequent recruitment of non-EEA nurses, it was submitted that the Complainant was discriminated against and/or subjected to discriminatory dismissal on the ground of age by the refusal to allow her to continue in her employment.  In addition to the distress and indignity caused, she was also at a loss of eleven months’ salary of circa €64,713, statutory redundancy of approximately €7500 and an ex gratia payment of circa €3000.

Summary of Respondent’s Case:

As the Respondent was subject to a High Court Winding-up Order, the appointed Liquidator attended in its place.  No evidence was proffered in rebuttal of the Complainant’s complaint.

Findings and Conclusions:

Notwithstanding the fact that the Respondent is not offering any evidence in rebuttal of this complaint, it is still incumbent upon me to be satisfied that the Complainant has met the requisite statutory requirements and made out a prima facie case of discrimination / discriminatory dismissal on the ground of age.  As the relevant statutory provisions and applicable caselaw have already been very comprehensively set out above, it is unnecessary to repeat them in detail.  Briefly, Section 6 of the Employment Equality Acts defines discrimination as: “(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…, and (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are… (f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”) as founded on EU Directive 2000/78.  Section 6(3)(c) of Acts further provides that offering a person over the retirement age a fixed term contact shall not constitute age discrimination if “(i) it is objectively and reasonably justified by a legitimate aim, and (ii) the means of achieving that aim are appropriate and necessary.” [as inserted by the Equality (Miscellaneous Provisions) Act 2015]  Section 34(4) of the Employment Equality Acts further provides: “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.”  Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination: “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.”  Finally, the Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017 (S.I. 600/2017) sets out the best industrial relations practice for managing the engagement between employers and employees in the run up to retirement age within the employment concerned.

Applying the relevant statutory provisions to the evidence adduced herein, I found the Complainant to be an entirely credible witness and her evidence was further supported by the documentation furnished.  The validity of the retirement clause contained within her first Fixed Term Contract with the Respondent which expired in May 2015 is questionable.  Regardless, Section 34(4) of the Act as interpreted by recent caselaw essentially requires an employer to demonstrate that fixing an age of retirement is not only objectively and reasonably justified by a legitimate aim but that retirement at that age is an appropriate and necessary means of achieving that aim.  In the instant case, the only basis for the Complainant’s compulsory retirement appears to be her date of birth as evidenced in the Respondent’s correspondence.  I am therefore satisfied that from 27th July 2018, when she was informed by letter from the Respondent that she would retire compulsorily on 31st October 2018 upon reaching her 65th birthday as per the Company retirement policy, her employment was tainted with illegality and discrimination on the ground of age thereafter.  Specifically, at the time she was provided with the Fixed Term Contract in 2018 upon her reaching the age of 65, no objective justification was given either verbally or in writing and the Fixed Term Contract was silent in terms of satisfying Section 6(3)(c) of the Acts.  When the Complainant requested a further extension in writing in advance of its expiry, there was no meaningful engagement by the Respondent contrary to the Code of Practice on Longer Working and her employment was simply terminated on 28th October 2019.  Again, no rationale was provided to show that her compulsory retirement was objectively and reasonably justified by a legitimate aim and was appropriate and necessary to achieve that aim. In this respect, I fully accept the Complainant’s evidence that there was ample work available particularly as the Respondent was recruiting agency and non-EEA staff at the time of her dismissal, and with an exemplary work record she was entirely capable of undertaking the work required.  The effects of discrimination crystallised when her employment was terminated on 28th October 2019 thereby denying her at least another eleven months of employment, statutory redundancy and an ex gratia payment before the Respondent ceased trading and was subject to a Winding-up Order.  Overall, I find that the Complainant has made out a prima facie case of discriminatory dismissal on the ground of age and the Respondent has not proffered any evidence in rebuttal of same.  It is therefore unnecessary to consider any inferences from the absence of a response to the Form EE2.

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 Acts.  Based upon the aforementioned reasoning, I find that pursuant to Section 79(6) of the Acts, the Complainant has made out a prima facie case that she was subjected to discriminatory dismissal which has not been rebutted.  In accordance with Section 82(4) of the Acts, I order the Respondent to pay the Complainant €85,000 in compensation for breaches of the Employment Equality Acts.  The maximum applicable award for an employee is 104 weeks remuneration or €40,000 (whichever is greater), the former being applicable to this case.  This award is arrived at having regard to the requirement pursuant to Article 17 of the Framework Directive as interpreted by case-law that the sanction be “effective, dissuasive and proportionate”.  To further elaborate, I consider this award to be effective in terms of meeting the intention of the legislature to remedy breaches of the Acts, and to be dissuasive in that it represents more than a nominal sum such that it will have a deterrent effect in the future.  I consider this award to be proportionate in circumstances where the Respondent made no effort to comply with the Employment Equality Acts.  I have also considered the effects of the discrimination on the Complainant who suffered stress and indignity along with eleven months loss of earnings and denial of statutory redundancy and an ex gratia payment. 

Dated:   20th August 2021

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:

Sections 2, 6, 34, 76, 79, 82 & 104 of the Employment Equality Acts 1998-2015 - discrimination and discriminatory dismissal on the ground of age - compulsory retirement - no objective justification.