FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : IARNROD EIREANN - AND - JOHN COYLE (REPRESENTED BY GILVARRY & ASSOCIATES) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(S) ADJ-00009268 CA-00012097-001/002. The Complainant commenced working for the Respondent as a Crossing Keeper in 1996. It is common case between the parties that, subject to medical fitness and business needs, the Complainant’s terms and conditions upon taking up this role permitted him to remain in employment until age 70. The Crossing Keepers were given an option of joining the occupational pension scheme in 2004. The ‘normal’ retirement age for members of the scheme was 65, since changed to 66. The Complainant took up the option to join the scheme. The Complainant lodged his two complaints with the Workplace Relations Commission under the Acts on 23 June 2017. The AO found against the Complainant on the two complaints and he appealed to this Court. The names of Mr. Jimmy Hopkins and Mr. Johnny Keady were given to the Court as comparators. The complaints were lodged on 23 June 2017, so the cognisable period was 24 December 2016 to 23 June 2017. The most recent date cited for alleged discrimination on the claim form submitted to the Workplace Relations Commission was 5 May 2017. The date on which the Complainant was compelled to retire was 4 August 2017. The Complainant’s representative stated to the Court that from the time when the matter of his retirement age was raised by the Complainant in February/ March 2016 up to the date of his compulsory retirement in August 2017 there was, in their view, continuing and ongoing discrimination. A complaint of discriminatory dismissal ‘per se’was not made to the Court but there was a complaint of ongoing discrimination in the period in question, during which time it was stated that the Complainant was prevented from availing of VS because of his age, contrary to the Acts. It was clarified also that it was not being argued that the retirement age of 66 was, itself, discriminatory but, rather, it was being argued that the use of this retirement age as the basis for refusing access to the Complainant to the VS scheme was an act of discrimination. The claim of victimisation was stated by the Complainant’s representative to be based on the same set of facts. Summary of Complainant arguments. The Complainant’s terms and conditions upon taking up his employment entitled him to work until age 70, subject to medical fitness. He was not advised when he joined the company pension scheme in 2004 that this had resulted in a changed retirement age to 65 years, later 66 years. He believed that, while contributions to the scheme would cease at 66, he would be permitted to work until age 70. He was ultimately dismissed on grounds of retirement and was victimised by being refused access to the VS scheme on the apparent grounds that he was close to retirement. He made clear that he wanted to remain in employment until age 70. The first that the Complainant heard of any change to retirement age was at the end of 2015. He then raised the matter with the Respondent through his union. The Complainant is a stranger to an alleged agreement that purports to change his retirement age. The Complainant was offered VS in April 2017. The figures quoted to him related to a retirement age of 66 not 70. He decided that, rather than engage in a long legal battle, he would accept the offer. However, when he handed in his acceptance on 5 May 2017, he was told that he was too late and he had to await a new scheme, to be announced shortly. No such offer was forthcoming. The Complainant was upset, took legal advice and a letter was sent to the Respondent to protest this age-based discrimination. The Respondent purported to retire the Complainant on 4 August 2017. A retirement age must be objectively justified as per s. 34(4) of the Acts. There is no change in the Complainant’s retirement age as set in his contract as was the situation inLongford County Council v. Michael Neilon (UDD 1950)in which case the Labour Court found for the Complainant. The burden of proof for the existence of a change in retirement age rests with the Respondent. As was noted inReilly v Drogheda Borough Council (2008) IEHC 357,when an employee has not contracted to an altered retirement age, their employer cannot change it unilaterally. If there was no change in retirement age, the Complainant must succeed. Other staff have worked past age 65. By denying the Complainant access to the scheme of V S due to his age, the Respondent discriminated against him contrary to the Acts. The Complainant raised concerns about his retirement age with the Respondent in 2016. The refusal to allow him access the VS scheme on 5 May 2017 was an act of victimisation for having raised these concerns. The written submission on behalf of the Complainant elaborates arguments regarding the need for objective justification for retirement ages. It was clarified at the hearing that this was not being pursued. Part of the Respondent’s response also deals with this matter and much of this is also omitted from the summary below. Summary of Respondent arguments The Respondent did not discriminate against the Complainant nor was the Complainant victimised by reason of refusal of access to the VS scheme. The Complainant, as a member of the company pension scheme, was required to retire at age 66. This was provided for in the relevant collective agreement that allowed the Complainant to join the scheme and was set out in the information provided to him at the time. The Complainant opted to join the scheme and was subject to its terms. Members of the scheme receive an annual statement of benefits. If the Complainant believed this to be discriminatory, he should have raised a complaint within 6 months of when he was made aware of the issue in 2004. Alternatively, he says that he became aware of this in 2015 but did not take a complaint under the Acts within 6 months of this. The Respondent denies that the Complainant was discriminated against or victimised by being excluded from the VS scheme. The Complainant asked for, and was provided with, VS estimates in 2008, 2011 and 2015 and chose not to accept these. In 2017, he was provided with a further estimate but, when he indicated acceptance, VS was no longer available. The Respondent is entitled to provide VS based on an estimate of savings to the company compared to possible future earnings, which are calculated based on the normal age of retirement, i.e. 66. The complaint of victimisation does not stand up in the context of estimates provided to the Complainant on three previous occasions on which he did not request to avail of the terms. The Respondent’s submission set out arguments as to why the VS scheme was not, itself, discriminatory. No argument was made by the Complainant that the terms of the scheme were discriminatory and, therefore, these arguments are not included here. The Complainant has been treated in a fair and reasonable manner at all times. Witness evidence Mr. John Coyle Mr. Coyle is the Complainant. The witness gave evidence that he had always believed that his right to remain in employment until age 70 was unaffected by his decision to join the Respondent’s pension scheme and that he had been assured in 2004 by a representative of the Respondent, Mr. Pat Spillane, that he would be expected to pay pension contributions until age 65, that this would cease to be required of him at that time but, subject to medical fitness, he could then stay in employment until age 70. He stated that, if he had not believed this to be so, he would never have joined the scheme. The witness said that he had never received pension statements. The witness said that he was aware of the pension handbook and what it said about retirement age but that he had been assured that Crossing Keepers had a special deal. He stated that he only had his retirement confirmed to him by the Respondent on the day prior to when he was forced to retire in August 2017. The witness outlined that on 17 April 2017 he had been offered a VS package. He said that he had gone to see Mr. Colm Reilly, a manager in the Respondent company, on 5 May 2017 to sign up to the offer. Mr. Reilly had made a lengthy telephone call, following which he told the Complainant that he was too late with his application. He stated that he knew 2 others who applied for the scheme around the same time and who were accepted. Neither was in the pension scheme. The two concerned were Mr. Hopkins and Mr. Keady, (‘the comparators). The witness was unable to say if the comparators had applied on or after 5 May 2017. In response to a question from the Court, the witness acknowledged that he knew his application for VS was subject to approval but, he noted, five people applied and only two were accepted. Ms. Doreen Healy Ms. Healy gave evidence that she was a Crossing Keeper from 1984 and, as a shop steward, had been involved in the negotiations that led to the agreement that gave Crossing Keepers the option to join the Respondent’s pension scheme in 2004. The witness stated that at no time had it ever been mentioned in these discussions that taking up this option would result in compulsory retirement at age 65, since changed to 66. Rather, she believed that the right to remain in employment, subject to medical fitness, until age 70 was retained. The witness said that this had been confirmed to her by Mr. Pat Spillane and Mr. Michael O’ Kelly and that she had only been told otherwise at a meeting in Claremorris in May 2015. The witness said that 5 Crossing Keepers had met with Mr. Colm Reilly in April 2017 and were given VS figures. Two had accepted the offer some time between that meeting and 5 May 2017 and had left under the scheme. In response to a question from the Court, the witness said that she could not be certain if she had ever received a pension statement. She said that she had seen the pension booklet but the reference to normal retirement age did not affect Crossing Keepers. The witness said that some Crossing Keepers chose not to join the pension scheme because joining was subject to medical fitness and they were afraid of the repercussions if they were not allowed to join the scheme on those grounds. The witness stated that the two comparators were about the same ages as the Complainant and herself. The applicable law Employment Equality Acts 1998 to 2015 Discrimination for the purposes of this Act. 6.— (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 insubsection (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, (b) a person who is associated with another person — (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue ofparagraph (a), constitute discrimination. ] (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 tosubsection (3)(in this Act referred to as “the age ground”), 74. (2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to — (a) a complaint of discrimination made by the employee to the employer, (b) any proceedings by a complainant, (c) an employee having represented or otherwise supported a complainant, (d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act, (e) an employee having been a witness in any proceedings under this Act orthe Equal Status Act 2000or any such repealed enactment, (f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or (g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs. 85A. — (1) 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. Deliberation It was not claimed to the Court that the VS scheme was, itself, discriminatory. It was confirmed to the Court at the hearing that the Complainant was not pursuing a claim on behalf of the Complainant to the effect that the retirement age of 66 years was, itself, discriminatory and not objectively justified. As neither of these arguments were put to the Court, it is not necessary for the Court to consider them. The Complainant’s representative confirmed that the complaints to be considered by the Court were that, from the date on which he was first made aware that he was to be retired at age 66, the Complainant suffered from ongoing age discrimination, culminating on 5 May 2017 with a refusal to allow him to avail of the VS scheme on age grounds, contrary to the Acts. A second complaint is that this amounted to victimisation of the Complainant for having raised his concerns about age discrimination in February and March 2016. The Complainant was told that his application was refused because it was submitted too late on 5 May 2017. No argument was put to the Court that refuted this. It would appear from the evidence of Ms. Healy that the two comparators, who were allowed to access the VS scheme, were of similar age to the Complainant, which would suggest that any distinction drawn between the Complainant and them was not based on age. If anything, even more noteworthy is the fact that the Complainant’s representative was unable to produce any evidence that the two comparators, or indeed any other staff member, had been facilitated by acceptance of their VS applications either on or after 5 May 2017, the date on which the Complainant was advised that his application would not be accepted, as the scheme had closed. The submission by the Complainant’s representative and the evidence given by both witnesses make clear that the Respondent told the Complainant that he was being refused access to the scheme on grounds that his application was, quite simply, too late. In the absence of proof that any other employees were permitted to apply on or after that date, there is no reason for the Court to take this statement by the Respondent at anything other than face value. Section 85 (A) (1) of the Acts, see above, makes clear that the onus is on a Complainant in the first instance to establish facts from which it may be presumed that there has been discrimination. This Court explained the significance of this provision in the case ofSouthern Health Board v. Mitchell (DEE011) as follows; “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. The Court set out the probative burden of proof that rests on an appellant in the case ofMelbury Developments Limited v. Arturs Valpeters (EDA 0917),as follows; 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 is no infringement ofthe principle of equal treatment”.“…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 the instant case, the basic requirement to produce primary facts that show aprima faciecase of discrimination has not been met and a complaint that the Complainant was prevented from access to the VS scheme on grounds of age cannot be upheld. No argument was put forward by the Complainant’s representative to the Court to substantiate the complaint that the Respondent, in refusing access for the Complainant to the VS scheme, did so because the Complainant had raised concerns about his retirement age with the Respondent. In addition, nothing said in evidence by either witness could have led to any suggestion that the refused access was, in any way, an act of victimisation. Therefore, there is no basis put to the Court which would allow it to consider this particular assertion and the Court could not, and does not, uphold this complaint. Determination The Decision of the AO is upheld.
NOTE Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary. |
