FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : OFFICE OF THE REVENUE COMMISSIONERS (REPRESENTED BY CLIONA KIMBER S.C, KIRWANA ENNIS B.L., INSTRUCTED BY ASSISTANT REVENUE SOLICITOR). - AND - AIDAN MCDONNELL DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No: ADJ-00013774 CA-00018067. Background The Complainant was employed by the Respondent as an Assistant Principal (Higher Scale). His employment ceased by virtue of his reaching his 65thBirthday on 1st June 2018. The Complainant applied for and was granted a one-year contract with effect from the 2ndJune 2018 which expired on the 1stJune 2019. The Complainant has two complaints under the Act 1) that he was discriminated on age grounds by being made to retire at 65 and 2) he was discriminated against on age ground when he was granted a one-year fixed term contract. Summary of Complainant’s case It is the Complainant’s submission that the first part of his complaint is that in December 2017 the Government acting as a public employer changed its policy on the retirement age for civil servants appointed before 1stApril 2004 by increasing the retirement age to 70. Circular 21/17 was issued across the Civil Service in and around mid-December and stated that the new retirement age would not apply to anyone who reached 65 before the law was updated. The legislation underpinning this policy change did not come into effect until December 2018 six months after the Complainant retired. It is the Complainant’s submission that this was an act of discrimination within the cognisable period. It is the Complainant’s submission that his forced retirement on the 1stJune 2018 was an act of discrimination based on age grounds. The Complainant commenced work on the 3rd June 1980, and it is his submission that his comparator is any civil servant who was employed before the 1stApril 2004 or 1995. It his submission that anyone who is seven months or more younger than him benefitted from the new retirement age and could work until they were seventy. It was his submission that anyone who was the same age as him or older could not work beyond their sixty-fifth birthday. In respect of the Complainant’s second complaint, the Complainant accepted that there had not been an act of discrimination within the cognisable period as he had only applied for the fixed term contract after the 21stMarch 2018. Summary of Respondent’s case It is the Respondent’s submission that the Complainant was not discriminated against. His contract provided for retirement at 65. He applied for and was granted a twelve-month fixed term contract which he took up and his employment came to an end at the expiry of that contract. The Respondent submitted that the Complainant had not established a prima facie case in respect of either of his claims and that the Court should decide the prima facie issue as a preliminary matter. The Complainant’s second claim was in respect of an alleged breach outside the cognisable period. It was the Respondent’s submission that the Complainant’s retirement had occurred outside of the cognisable period and the fact that it was in process was not sufficient to say it was a breach. It was the Respondent’s submission that it could be argued his retirement was in process from the date he started work in 1980 when he was told his retirement age was 65. The applicable Law Section 6 of the Employment Equality Acts 1998 to 2015 states: (1) (a )the Act sets out for the purpose of this Act discrimination shall be taken to occur where (a) a person is treated less favourably than another person is, has been or would be in a comparable situation… (2) (F) sets out that as between any 2 persons that they are of different age (3) ( c ) offering a fixed term contract to a person over the compulsory retirement age for that employment shall not be taken as constituting discrimination on the age ground if
without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for retirement (whether voluntary or compulsorily) of employees or any class or description of employees 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 85A. Burden of Proof states: Discussion It is for the Complainant in the first instance as set out by this Court inMitchell v Southern Health Board[2001] ELR 201 to raise an inference of discrimination before the burden shifts to the Respondent to prove that there was no infringement of the principle of equal treatment. In order to raise an ‘inference’ the Complainant must prove the primary facts upon which he relies. InMelbury Developments v Arturs ValpetersEDA0917the Courtstated“ Section 85A of the Act 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”. The Court, having carefully considered the facts finds that in the circumstances of this case the Complainant in respect of his first complaint has not made out a ‘prima facie’case. The Complainant is seeking to rely on legislation that changed the compulsory retirement age for a category of civil servants, that was not enacted at the time of his retirement, as a basis for his complaint of discrimination on the age ground. The legislation in question did not have retrospective effect and therefore the Complainant’s complaint must fail. In respect of his second complaint the Complainant confirmed in the course of the hearing that there was no act of discrimination with the cognisable period provided for by the Act. On that basis that complaint too must fail. Determination The Court determines that the Complainant has not established a prima facie case of discrimination on the grounds of age. The appeal fails. The Decision of the Adjudication Officer is upheld. The Court so Determines.
NOTE Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary. |
