Complainant

Respondent

Parties

Vivienne O'Connor

North Munster Citizens Information Service CLG

Representatives

Self-represented

Aoife Hennessey, Sweeney McGann, 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-00032806-001

09/12/2019

The Complainant applied for a position with the Respondent as an Administrator.

At the time of her application, the Complainant had attained her 66th birthday. On enquiry, in advance of submitting her application, the Complainant was advised by the Respondent that, while the normal retirement age within the organisation was 66, this should not preclude her from applying for the position.

The Complainant was interviewed for the position on 15 November 2019. On 21 November 2019, the Complainant received an email, from the Respondent’s Regional Manager, (Ms A), advising that she had been successful at interview and was being offered the position, subject to references, which the Complainant duly provided.

On 25 November 2019, the Complainant received a phone call from Ms A advising that they would not be in a position to appoint her as they did not employ people aged over 66. The Complainant received a further phone call on 27 November 2019, advising that the job offer was being withdrawn, as they were not in a position to appoint due to her age. Following a request from the Complainant, the Respondent’s position was confirmed in a letter from the Respondent’s Chairperson on 3 December 2019.

The Complainant submitted a complaint to the Workplace Relations Commission on 9 December 2019 under the Employment Equality Act, 1998, claiming discrimination against her in getting a job by reason of her age.

That complaint, having been duly delegated to me by the Director of the Workplace Relations Commission is the subject of this investigation/adjudication.

The Complainant submitted supporting documentary evidence with regard to the facts of her complaint, as set in her complaint to the WRC. In addition, in advance of the Oral Hearing, the Complainant submitted a written response to the Respondent’s submission.

According to the Complainant, the Respondent wrongly states that she called the recruitment agency prior to applying for the job. The Complainant states that she emailed a particular individual (Ms B) at an address purporting to be that of the Respondent, asking if there was an age restriction in relation to the vacancy. The Complainant further stated that she received a reply from Ms B advising that the normal retirement date, within the Respondent organisation, was 66. However, the Complainant stated that she was also advised that this should “not preclude a candidate from applying”.

The Complainant submitted that, having been successful at interview and having been offered the job, subject to reference check, she received a phone call, which was followed up by an email, from the Respondent’s Regional Manager (Ms A), advising that they were not in a position to appoint her, due to her age.

According to the Complainant’s submission, her contract of employment with her previous employer should have no bearing on any subsequent job application. Consequently, the Complainant submits that the Respondent’s argument in this regard is irrelevant.

The Complainant submitted that she considered the reference to retirement age in the Respondent’s Handbook to also be irrelevant. The Complainant stated that the Vacancy Advertisement stated” full terms and conditions are contained in the Staff Handbook, which is issued with and forms part of the Employee Contract “. The Complainant contends, therefore, that she would not have had access to this information at any stage during the recruitment process.

The Complainant also referred to the Vacancy Advertisement, which stated that the Respondent was an “equal opportunities employer”. In this regard, the Complainant further referenced the Respondent’s website which contains detailed information about age equality in employment, referencing the Employment Equality Acts, 1998 – 2015.

The Complainant stated that, while the application form did not ask for her date of birth, it did ask for her education history. According to the Complainant, it would have been obvious from her education history that she was at least 66 years of age, if not older.

According to the Complainant, at no point throughout the process did anybody indicate to her what elements of the position she did not have the ability or the skills to undertake. In addition, the Complainant contends that, if it was part of the essential criteria for the post, why was it not picked up at the shortlisting stage of the recruitment process or by the three-person interview panel.

In conclusion, the Complainant submitted that the Respondent’s withdrawal of the job offer constitutes direct discrimination against her on the grounds of age.

Background:

The Respondent, a company limited by guarantee, provides face-to-face impartial and confidential information, advice and advocacy services to the public. The Respondent, in the within case, is one of eight independent regional companies who provide these services within geographical boundaries.

According to the Respondent’s submission, a number of permanent contracts across the service were coming to an end in late 2019. It was decided that the recruitment process should be managed as a national level, via a recruitment agency, rather than by each service manager at local level. Consequently, an independent recruitment agency was engaged for this purpose.

The Respondent submitted that the contract at issue in the within claim is in relation to a one-year contract as an Administrator (Part-Time) in one of the offices within the Respondent’s catchment area. The Respondent further stated that the Complainant applied for the role, was interviewed and was advised, by way of email dated 21 November 2019, that she was successful in her application and was offered the job subject, to reference checks.

On receipt of the Complainant’s references, the Respondent became aware that she (the Complainant) had retired from a previous role, in which the retirement age was the same as the age of retirement set out in the Respondent’s Retirement Policy, which had been agreed at national level with the Trade Unions. It was further submitted by the Respondent that the legitimate aims of the normal retirement date were also agreed SIPTU, as part of this policy.

According to the Respondent’s submission, the Regional Manager, Ms A, telephoned the Complainant, to advise her that, on the basis of the nationally agreed retirement age and where she (the Complainant) had reached the age of retirement, she was not eligible to take up the contract of employment that had been offered to her.

The Respondent’s position was formally conveyed in writing to the Complainant in a letter dated 3 December 2019. The Respondent stated that they did not receive any reply to this letter and did not receive any further correspondence from the Complainant until notification of her claim to the WRC.

Respondent’s Position:

At the outset, while acknowledging that it was very regretful that this situation arisen, the Respondent denied the Complainant’s claim that she was discriminated against on the grounds of age.

According to the Respondent’s submission, the Complainant claimed that she telephoned the recruitment agency prior to applying for the role and queried if there was an age restriction on the position. It was further submitted by the Respondent that the Complainant also set out that she had been advised that the normal age of retirement was 66, but that she should not let that preclude her from applying.

The Respondent submitted that, while there is no record of the Complainant’s conversation with the agency, the information that was provided to her was correct. The Complainant was advised that she was entitled to apply regardless of her age, however, she was also notified as to the existence of the retirement age that was in place.

According to the Respondent’s submission, the Complainant was offered the position, following interview. It was further stated that it was only when the Respondent was carrying out reference checks that they became aware that the applicant had recently retired from a previous role, were the same retirement age applied. The Respondent submitted that the Complainant obviously understood the requirements, as set out by her previous employer, to retire and did so in line with that policy. It was further submitted, on behalf of the Respondent, that, with nationally agreed age of retirement in place, they were placed in a very difficult position.

The Respondent submitted that there is a legitimate and objective justification for such a policy. In support of this argument, the Respondent referred to the details contained in their Retirement Policy as set out in their Employee Handbook. The Respondent also referred to the letter of 3 December 2019, which also contained the legitimate and objective justifications for their Retirement Policy.

According to the Respondent’s submission, the candidate who was subsequently appointed to the position, reached the age of 66 a short time after taking up the role and retired based on the policy. The Respondent further stated that this individual did not raise any issue in this regard.

The Respondent further submitted that it would give rise to significant issues for them and the other regional companies, if they did not comply with the agreed retirement policy. It was further submitted that it would also be grossly unfair to the Respondent’s employees who had retired to date and those who will continue to retire in line with the Retirement Policy.

According to the Respondent’s submission, they have now amended the Candidate Booklet of Information which accompanies the application process, such that it now states that the normal retirement age for the post is in line with the social welfare retirement age. The Respondent stated that this was done with the aim of avoiding such issues arising in the future. However, it was submitted that this is without prejudice to the position that the Complainant was aware and accepts that she was aware of the mandatory age of retirement in advance of applying for the role.

Respondent’s Legal Position:

The Respondent submitted that there was no discrimination on the grounds of age. According to the Respondent, the offer of employment was only withdrawn because the applicant exceeded the age of retirement as per the nationally agreed policy that is applied to all its employees.

According to the Respondent, the Complainant accepts that she was made aware, pre-applying for the role, that the normal retirement age was 66 years. The Respondent stated that the Complainant made the decision to apply regardless. In addition, the Respondent further stated that, while the Complainant was successful in her application, she had exceeded the nationally agreed age of retirement.

The Respondent submitted that as the Complainant had retired from her previous employment, which had the same retirement age, she was clearly aware of the need and the right of an organisation to have a mandatory retirement age and accepts that this does not give rise to age discrimination.

In support of their submission in this regard, the Respondent referred to the Equality (Miscellaneous Provisions) Act 2015, which amended the rules on mandatory retirement and age discrimination and to the Industrial Relations Act 1990 (Court of Practice on Longer Working) (Declaration) Order 2017, which provides guidance to Employers, Employees and the representatives of the best practice in the run-up to retirement, including responding to requests to work beyond the retirement age in the employment concerned.

The Respondent made specific reference to Section 34 (4) of the Employment Equality Act, 1998 – 2015, which expressly permits employers to use mandatory retirement ages, where this is objectively and reasonably justified by legitimate aims and where the means of achieving those aims are proportionate and necessary.

In support of their legal arguments in response to the Complainant’s claim, the Respondent cited the following case law:

·       Longford: D Council v Michael Neilon [UDD 1950]

·       Michael Fox v Tedcastles Aviation Fuels Ltd [ADJ-00016441]

·       Anne Roper v RTE [ADJ-00019084]

·       Dr Paul Quigley v HSE [2017 – IEHC 654]

·       A Bookkeeper v A Retail Business [ADJ-00005391]

Drawing on various elements of the respective decisions in the above cases, the Respondent made the following submission with regard to the within case:

Ø  The Complainant was aware of the age of retirement in advance of applying for the role.

Ø  There is a nationally agreed age of retirement in the Respondent’s organisation and the Complainant was aware of this in advance of applying for the role.

Ø  The age of retirement in the Respondent’s organisation is nationally agreed and no other member of staff has remained on beyond that age. The Respondent submitted that to permit the Complainant to be in employment after the age of retirement would be grossly unfair to the employees that had retired and detrimental to the agreement and the achievement of the legitimate aims as contained in the retirement policy.

Ø  The Respondent’s policy on retirement is a nationally agreed policy, which is implemented consistently across the organisation.

Ø  There is evidence to support the consistent application of a mandatory retirement age within the Respondent organisation to achieve legitimate aims.

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.

Establishing a prima facie case of Discrimination:

Section 85 A(1) of the Employment Equality Acts sets out, as follows, the burden of proof which applies in a claim of discrimination or:

“Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.”

This provision clearly puts an onus on a complainant to provide evidence from which it may be presumed that the prohibited conduct occurred. This concept is commonly referred to as establishing a prima facie case. It requires a complainant to establish, in the first instance, facts upon which they can rely in asserting that prohibited conduct has occurred in their particular situation. Should a complainant be successful in establishing a prima facie case of discrimination, the burden of proof then shifts to the Respondent to rebut the inference of discrimination raised by the complainant.

The requirements placed on a complainant in establishing a prima facie case of discrimination were set out by the Labour Court in the case of Mitchell v Southern Health Board [2001] ELR201, where the Court stated as follows:

“A claimant must prove, on the balance of probabilities, the primary facts on which they rely seeking to raise a presumption of unlawful discrimination. It is only if those 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 establishing a prima facie case of direct discrimination, the complainant must, therefore, establish (a) that they are covered by the relevant discriminatory ground and (b) that there was specific treatment by the respondent, which could reasonably give rise to the presumption that less favourable treatment of the complainant had occurred.

Discrimination under the protected ground of age is provided for at Section 6 of the Act:

Section 6(1) of the Acts provides, inter alia, that discrimination shall be taken to occur where:

“(a) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned, “

Section 6(2)(f) of the Acts provides that:

“(2) As between any two persons, the discriminatory grounds (and the description 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”),

Having considered all of the evidence adduced in this case, I am satisfied that an unintended and unfortunate misunderstanding and/or miscommunication of both information and position lies at the core of this complaint.

Following the termination of her contract of employment with her previous employer, on the day before her 66th birthday, in line with that employer’s mandatory retirement policy, the Complainant sought alternative employment, based on the belief she still has a significant contribution to make. Before deciding to apply for the position of Administrator, as advertised by the Respondent, the Complainant queried whether or not there was “an age restriction on this vacancy”. In response to this query, the Complainant was advised that “the normal retirement age is 66. However, this should not preclude a candidate from applying”.

Based on the above response, the Complainant decided to proceed with the application, which was successful up to the point at which it was discovered, during reference checking, that she was, in fact, above the normal retirement age for the Respondent’s organisation.

It is clear from the evidence adduced that the individual (Ms B), who provided the response to the Complainant was connected with an independent recruitment agency, who had been engaged, at a national level, to support the Respondent and their counterparts in other regions of the country, on recruitment matters. I am satisfied, based on the balance of probability, that Ms B was unaware that the Complainant was at, or over, the normal retirement age. Ms B’s reference to “a candidate” as opposed to specifically addressing the Complainant’s personal situation, clearly indicates she (Ms B) was referring to a generic situation and supports the view, based on the balance of probability, that she was most likely unaware of the Complainant age.

Clearly, the Application Form, in line with good recruitment practice, did not enquire as to an applicant’s age. Consequently, I am of the view that, had Ms B queried the Complainant as to her age, when she received the enquiry about “age restriction”, she (Ms B) could have put herself and the Respondent at potential risk of being accused of discrimination on the grounds of age. Consequently, I am satisfied that, by responding in the manner in which she did, there was no intention on Ms B’s behalf to mislead the Complainant and/or to directly discriminate against her on the grounds of age.

As part of their response to the complaint, the Respondent placed significant emphasis on the fact that the Complainant was aware, prior to proceeding with her job application, that a retirement age of 66 was in place. While I accept this to be the case, I am also of the view that it was not unreasonable that the Complainant might have interpreted the element of Ms B’s response which stated that “this (i.e. a retirement age of 66) should not preclude a candidate from applying”, as meaning she could apply, despite being over the retirement age.

My view in this regard is further influenced by the Complainant’s oral evidence at the Hearing when she indicated that she only applied for the position because she understood it was not a restriction. According to the Complainant, she would not have applied for the job if she had been aware that the position was not open to applicants over 66 years of age, as she considered to do so would have been a waste of everybody’s time.

Consequently, taking all of the above into consideration, I am satisfied that the Complainant’s application for the position and the Respondent’s subsequent withdrawal of an offer of employment all stemmed from the above misunderstandings and misinterpretations of the communications between the parties at the commencement of the process with regard to the application of the Respondent’s mandatory retirement age, as set out in their Retirement policy.

In addition, I am satisfied that the Respondent operates a nationally agreed mandatory retirement age policy, which is objectively and reasonably justified by legitimate aims which are clearly set out in the Respondent’s Employee Handbook. I also note that the Respondent applied this policy to the individual who subsequently took up the position, which was initially offered to the Complainant. This candidate, who was aged 65 at the time she was appointed, only held the position for a short number of months, prior to its termination when she reached a 66.

Taking all of the above into consideration and based on the submissions made, I am satisfied that the matter arose as a result of an unfortunate miscommunication/misunderstanding in relation to the Complainant’s age and its impact on the Respondent to provide her with the contract of employment if successful in the application process rather than as a result of any prohibited conduct on the part of the Respondent.

Consequently, I conclude that the Complainant has failed to establish a prima facie case of discrimination on the age ground, which would see the burden of proof switch to the Respondent.

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.

Consequently, I find that the Complainant’s complaint of discrimination in this regard is not well founded.

Employment Equality Acts, 1998 – 2015

Age Discrimination

Recruitment