ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00028294
Parties:
| Complainant | Respondent |
Anonymised Parties | A Resource Centre Co-Ordinator | A Development Company |
Representatives | Aine Feeney SIPTU Workers Rights Centre | Carmel Murphy HR Solutions |
Complaint(s):
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-00036329-001 | 22/05/2020 |
Date of Adjudication Hearing: May 12th 2021, January 11th 2022 and March 22nd 2022
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant alleged she was discriminated against in the ground of age by not being retained in employment beyond her 66th birthday. An initial Hearing on the complaint was held to open submissions and after a second Hearing the Parties requested time after the Hearing to have local discussions to try resolve the complaint. This was granted but these discussions did not lead to an agreement and a final Hearing was held on March 2nd 2022. The Parties made substantial submissions on every aspect of the complaint and included various case law to support their respective cases. |
Summary of Complainant’s Case:
The Complainant was employed by the Respondent from 2006 in the position of Resource Centre Co Ordinator, located at Castlerea Prison. The Complainant was due to retire on the 1 2th June 2019 however on application to the Respondent her employment was extended on foot of a fixed term contract from 1 st July, 2019 to the I I th June, 2020.
On the 5 th November, 2019 the Complainant requested that the Respondent would extend her employment for a further year, however despite availing of the internal process for such an application the Complainant was refused the opportunity to continue in her role for a further 12 months. This was despite the fact that the Respondent Company had not correctly applied the code of Practice on Longer Working or indeed applied the same criteria that had applied to other members of staff.
The Complainant sought to be reinstated for a further 12 months or in the alternative be remunerated for 12 months loss of earnings and further that she would be compensated for the stress which she suffered as a result of the failure of the Respondent to follow their own procedures and indeed natural justice.
The Complainant was employed by the Respondent from 2006 on foot of a contract dated the 24 th June 2019. The Complainant entered into a Fixed Term Contract of Employment as a result of her application to extend her employment with the Respondent Company. This had arisen as a result of an Appeal process which had taken place when the Respondent had rejected an application to continue working beyond the retirement date. The said fixed term contract had a retirement date of the I I th June, 2020 being at the age 67. On the 5 th November, 2019 the Complainant requested an extension to her contract for a further year to June 2021, noting that she was aware that same would be subject to the specific employment being in place and the funding continuing to be available. The Complainant again corresponded under cover of correspondence of the 1 st December, 2019 in this regard. On the 4th December, 2019 the CEO acknowledged receipt of the application and in line with the retirement policy invited the complainant to meet with the management sub-committee on the 13 th December, 2019.
A meeting took place on the 10 th January, 2021 with the management sub-committee and a decision was communicated on the 22nd January, 2020 confirming that the Management Sub Board declined to accede to the request to work beyond the retirement date of the I I th June, 2020. The correspondence did not set out the rationale for the decision, nor indeed the consideration of the objective justification criteria in the matter. The only justification was that "we wish to implement the company retirement policy that is in place". Further it did not make any reference to the fact that the Respondent retirement policy sets out the Objective Justification criteria and did not address matters such as "to meet specific funders requirements and to ensure workforce planning and succession planning.“ It was noted that the Board had also not taken into account their own provisions that such requests will be considered on a "case by case basis" and it was clear from the correspondence which issued that no such considerations had been given in the case of the Complainant.
The Complainant then appealed the outcome on the 31st January, 2020 setting out the basis for her appeal and in particular that the funding came direct from the Irish Prison Service, with no costs to the Respondent and further set out that she would pursue the matter, as she was of the belief that she was being discriminated against on the basis of age.
On the 11th February, 2020 correspondence issued from HRS Consultants confirming that they had been appointed to hear the Appeal of the matter and the Appeal was heard on the 11th March, 2020. The outcome issued on the 25th March, 2020 and Mr McGIynn clearly acknowledged that communication required review and that the matter had not been correctly handled by the Organisation to date. He acknowledged the submission of the Complainant that she was aware of an employee who was permitted to remain in employment to the age of 74 years and indeed acknowledged that if this was the case that this would "be unfair and illegal' and while he indicated that he had made enquiries, no evidence in this regard was provided nor indeed any documents provided with regard to any enquiries made on which this assertion was arrived at. Notwithstanding the foregoing no recommendation was made that the retirement would be extended further and the rationale for same was simply that it would "protect the objectives of the retirement policy” However it was recommended that, as the Complainant was open to discussing other ways of continuing to provide the service in a different capacity, the discussions should commence immediately. Thereafter communications issued from the Union to the CEO requesting engagement with regard to aforementioned proposals.
On the 6th May, 2020 the CEO corresponded with the Complainant and set out the considerations given on foot of the recommendations. It was clear at that juncture that the Respondent had no intention of acting on the recommendations of Mr. McGlynn.
On 22nd May, 2020 the Union corresponded with the CEO and set out the deficiencies with regard to the process and indeed the decision-making process to date. Subsequent to the meeting of the 6th May, 2020 the Complainant was contacted and offered a new position as Director of Services at the FRC for I0 hours per week with a salary of €1,200 per month. The Complainant was delighted to accept this offer however she was then informed to send an e-mail to the Respondent confirming that she was aware that the salary was to pay for carers to look after her husband whilst she worked. The complainant confirmed that her husband did not need carers as he was fit & healthy therefore she stated she saw this a fraudulent act and had no option but to refuse this offer of employment. Further she was advised that no one would know and that the matter could proceed if she just sent the email. When the complainant refused again she was offered €300 a month for travel. As the complainant only lives 8k from the location she would have to state she was traveling further than 8k and she was unwilling to proceed on this basis. Thereafter there was no offer of further employment.
The matter was referred to the WRC on the 22.05.2020.
In accordance with Section 85A (I) of the Equality Acts 1998-2015 the complainant must establish both the primary facts of which he or she relies and also that those facts are of sufficient evidential significance to raise an inference of discrimination. The Complainant is of the belief that the fact that she was refused an extension to her contract, that no objective justification of the refusal was set out and further that she was of the belief that there were individuals within the employ of the Respondent Company above the age of 67, indeed to the age of 74, complied with her requirement in this regard. The complainant in the circumstances asserted that on the balance of probability, the primary facts as set out, raise the presumption of unlawful discrimination and in those circumstances that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment. In the case of Cork City Council -v- McCarthy' EDA 21/2008 where the Court stated in this regard;
"The type and range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shift where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicated that where the primary facts alleged are proved it remains for the
Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed, the most likely, explanation which can be drawn from the proved facts. Il is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts '
In the circumstances the Complainant Representative asserted that the burden has shifted to the Respondent.
The provisions of S .1 600 of 2017 are well established and discussed. Specifically with regard to
(4) Without prejudice to subsection (3) it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntary or compulsorily) of employees or any class or description of employees if—
it is objectively and reasonably justified by a legitimate aim, and
the means of achieving that aim are appropriate and necessary. "
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 is appropriate and necessary. Examples of what constitutes a legitimate 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.”
The Complainant submitted that despite the fact that there were procedures in place within the Respondents Handbook, that same were not followed, and indeed that Section 4 as set out above was not complied with by the Respondent to the detriment of the Complainant.
In the Case of An Operations Manager and An Oil Company ADJ-00023458 the Adjudicator did not support the contention of Objective Justification as set out by the Respondent despite the fact that the Respondent had clearly set out the rational under the various headings required, We submit that the principles applied in that case apply to the within matter, to such an extent that the Respondent herein did not show at any stage of the process how they had considered the treatment of the Complainant against that standard. In that case the Adjudicator upheld the Complaint and awarded €25,000 in compensation,
In the Case of A Worker and the HSE ADJ- 00018898 the Labour Court noted that it "arises from a breach by the employer of their own policy", as we would submit is the position in the within case, specifically with regard to the failure of the Respondent to take any account of the objective justification criteria at the initial investigation of the matter or on appeal.
In the Case of Roper and RTE ADJ-00019084 the Adjudicator noted that there was "no legal or contractual impediment 10 the complainant remaining ai work after the age of 65 and to do so is in line with Government and Social Policy regarding longer working lives. It is my view that the outcome achieved by the complaints retirements was not so significant that it was reasonable
necessary ". The Complainant submitted that the situation in the her case has the same characteristics. Further the Adjudicator went further to reference the final remarks of Mr. Justice McKechnie in the Donnellan Case wherein he stated "Any discrimination with regards to age must, as out by that directive (2000/78/EC) serve a legitimate aim or purpose and the means taken to achieve that purpose must be appropriate and go no further than is necessary i.e. they should be proportionate ". Based on this assertion the Adjudication Officer in Roper found that the insistence with regard to the retirement age was disproportionate and we assert that this is the case in the within matter. In that case the finding in addition to the complaint being well founded was that the respondent would pay the equivalent of one year’s salary in compensation.
The Complainant is a longstanding and respected member of staff of the Respondent and had in the course of 13 years of employment gained the respect of Management, Colleagues and wider public as a result of the role in which she was engaged.
The Complainants preference would be to be reinstated. The Complainant also sought compensation for the distress that this entire matter has caused her and continues to cause her casting a long shadow over her retirement. This is as a direct result of the failure of the Respondent to follow due process and fair procedures. In the alternative to reinstatement, the Complainant sought the maximum award.
Summary of Respondent’s Case:
Roscommon Integrated Development Company (RIDC), trading as Roscommon LEADER Partnership (the Respondent ), has been in operation since 2009 (an amalgamation of two former service providers, Roscommon South Partnership and Arigna Leader Company), and it’s primary objective is to promote and support social inclusion and enterprise growth, and to facilitate rural and urban regeneration and community development throughout County Roscommon. This is done through the delivery of its two main programmes which are the Rural Development Programme (LEADER) and the Social Inclusion Community Activation Programme (SICAP). Additional programmes delivered by the Respondent include the Rural Social Scheme (RSS), TUS, Community Services Programme (CSP), the Travellers Health Programme and the rural Digi Skills Programme, and the Respondent’s overall reach is very diverse with initiatives and projects across tourism, enterprise, recreation, social inclusion and support for various disadvantaged groups.
The Respondent currently directly employs a total of 311 staff, of which 252 are involved in RSS and TUS Schemes, with the remaining employed across various other programmes and centralised support roles. the Respondent is subject to a number of funding restrictions on how it operates, with over 80% of its positions not funded past the age of 66 years.
The Complainant transferred to the Respondent in 2009 having originally been employed by Roscommon South Partnership since 2007 as a part time Estates Project Worker, and then in 2010 took up an additional part time position of Resource Centre Coordinator in the Family Resource Centre (FRC), in Castlerea Prison. The operation of the FRC is funded by the Irish Prison Service (IPS), who engage the Respondent to provide and manage the necessary resources to run the Centre. This funding arrangement previously operated somewhat informally for the most part, with a formal service level agreement only put in place in May 2020
The claim as submitted by the Complainant was refuted in full by the Respondent as summarised below. The Respondent’s position was submitted on a strictly without prejudice basis, subject to the obligation on the Complainant as per Section 85A (1) of the Equality Acts 1998 – 2015, to discharge the burden of proof and establish a prima facie case of discrimination, as alleged.
The Respondent denied that the Complainant was discriminated against on the grounds of age and that the retirement policy of the Respondent was unlawful, and stated that the Complainant was retired against a well-documented contractual retirement age and policy, with a clear precedent established within the Respondent in respect of retirement, and 46 retirements implemented during the period 2013 – 2020. Furthermore, the Respondent’s retirement policy is objectively justified and wholly aligned with the funding restrictions applied to the employment of the significant majority of employees within the Respondent, as well as being in line with sectoral norms, with other similar Companies in different Counties operating a retirement age of 66 years.
The Respondent does not have a number of individuals (or any individual) employed beyond their retirement age as claimed, but rather a very small number of former employees (2 in total), have been engaged in the capacity of a volunteer, or have successfully tendered as a contractor for nominal work available. Neither have been employed in the former roles which they carried out prior to retirement, nor have they received any level of payment in line with employment renumeration.
In this regard, in line with the recommendations from an external appeal process in March 2020, which upheld the Respondent’s decision not to extend the Complainant’s employment beyond June 2020, efforts were made in April and May 2020 to try and accommodate the Complainant’s continued involvement in the FRC, in a manner that would not compromise the Respondent’s Retirement Policy. This included an expensed volunteer arrangement, as currently operates for one former employee, but the Complainant declined this offer.
The Respondent also strongly refuted that it did not apply the Code of Conduct on Working Longer in a fair and equitable manner, and on two occasions in 2018 and 2019, comprehensively dealt with the Complainant’s applications to work beyond her retirement age, including the arrangement of two external appeals.
The Respondent disputed the Complainants contention that at the time of submitting her complaint to the WRC in May 2020, she would only be attaining the age of 66 years on her next birthday (June 12th 2020), with the records held by the Respondent indicating that the Complainant would have reached her 68th birthday on this date, with her date of birth recorded on official documentation supplied by the Complainant to the Respondent as 12.06.1953.
Without prejudice, and subject to the responsibility of the Complainant to discharge the burden of proof that prima facie discrimination has occurred, the following detailed submissions were presented for the Adjudication Officer’s review:
The Company since its inception has always had a documented retirement age, which was 65 years as per its first Employee Handbook in 2009 and was then updated in 2016 to state that the normal retirement age for new starters since January 2013 would be 66 years, with the normal retirement age for employees who commenced prior to January 2013 remaining at 65 years.
On 24.05.2019, an updated retirement policy was communicated to all staff. The purp of the new policy was to ensure that there was a consolidated and standardised retirement age of 66 years for all employees, and to remove the disparity between retirement ages of 65 and 66 years across different legacy contracts, as well as to ensure alignment with the funding position for the majority of staff, with RSS, Tus and CSP Programme rules specifically not providing funding for posts beyond the age of 66 years. Additional objectives due to the broad range of roles carried out within the Respondent, were also detailed in the policy with regard to health and safety for example, as well as the need to provide potential for recruitment and movement within the workforce. In addition, with the significant majority of the Respondent employees not being in an occupational Pension Scheme, the Policy also included a provision for the Respondent’s retirement age to continue to align with proposed increases to the State Pension Age, unless dictated otherwise by funding.
Furthermore, in light of the funding restrictions that applies to the significant majority of employees in the Respondent a clear precedent of retirement at the age of 66 years has already been applied within the Respondent , with 47 retirements implemented for the Respondent staff during the period 2013 – 2020, and applications to work beyond 66 years being necessarily declined due to funding restrictions.
With regard to the Complainant’s own retirement, she had herself initiated discussions about her pending retirement back in 2016 and 2017, and she understood as per the Retirement Policy in the Respondent Handbook, that she would be retiring on her 65th birthday in June 2018, as per email of 07.02.2017 submitted to the CEO: “Please find attached a letter and the (Respondent Policy) re my retirement. We have discussed this before. I noted on the (Respondent Policy)( that the age of retirement is 66 years only if a person started working with the Respondent after 2013. I have been with the (Respondent) since 2006 which according to the policy of the (Respondent) it should retire at the age of 65 years in 2018, therefore, I have attached a letter to request a minimum of a further year working until I reach the age of 66 years in 2019”.
Thisrequest was agreed to and confirmed to the Complainant in October 2017. The agreement was then formally documented with a contract addendum dated 13.06.2018, issued for a one year extension of employment until 12.06.2019. The Complainant then wrote to the CEO and the Board of Directors on 01.12.2018 requesting a further extension until she reached the age of 67 years in June 2020. This request was refused with the reasons outlined in letter dated 08.05.2019 from the CEO, stating:“the (Respondent) is in the process of consolidating its policy on retirement ages and will be implementing a uniform retirement age of 66 years from here on, in line with the current State Pension Age. Our decisions came from the fact that we wanted to ensure that we provide a mechanism for the recruitment and promotion of employees and that we have an aged balanced workforce between the generation. In addition, we also have to factor in that 66 years is a mandated retirement age across a number of programs, and it is important that consistency is applied”. A text message issued to the CEO the following day on 09.05.2019 from the Complainant, indicating that her contract actually provided that her retirement date was 66 years at the end of June 2019 and that she hadn’t previously needed to request an extension. The contract referred to was not available on the Respondent’s files.
An appeal letter then issued on 14.05.2019 from the Complainant, which also outlined proposed options for self-employment or expensed voluntary status, if it was not agreed that she could extend her employment.
The Complainant’s appeal was heard by an external Consultant Ms Orla Leydon, Office Training Solutions, and was successful, with the Complainant given the benefit of the doubt of an extra years’ employment, having produced a copy of the contract which had a retirement age of 66 years. The contract was unsigned by any Company representative and had not been available on Company records and stated “where this contract is not previously terminated, it will be so by reason of retirement at the end of the month in which your sixty-sixth (66th) birthday occurs”. A fixed term contract then issued to the Complainant for the period 01.07.20219 – 11.06.2020, which was approved at a Board meeting on 27.06.2019, with the justification outlining that a one year contract would allow for workforce and succession planning.
The Complainant was then formally notified of her pending termination of employment on 18.09.2019 and was re-issued a copy of the updated Company Retirement Policy, which had previously been issued to staff in May 2019. The Complainant submitted a request on 05.11.2019 for a further period of extended employment until June 2021. The Complainant’s request was reviewed and declined by the Respondent’s Management Sub Board on 22.01.2020, and an appeal against the decision was offered. The Complainant submitted an appeal via email on 25.01.2020, followed by a detailed appeal letter on 31.01.2020 and an external Consultant, Mr Paul McGlynn, HRS Consultants, was appointed by the Respondent to hear the appeal. The Appeal was heard in mid March 2020. The appeal was not upheld, with Mr McGlynn stating as per his outcome issued on 25.03.2020: “Given the employer wants to maintain the retirement policy and it allows for an extension that will not exceed 12 months, if it is extended it is difficult to see how the policy could be ever followed in future as a precedent would be set which would make the policy or its objectives impossible to implement in practice. After I consider the full circumstances, I find that the retirement should not be extended”. “I recommend that the retirement is not extended further, and this will protect the objectives of the retirement policy, Where the employee as is the case here is open to discuss other ways of continuing providing a service in a different capacity and the employer is open to facilitating this discussion and the PSI seems likely to facilitate this, these discussions should commence immediately, once the situation with the current virus allows”.
On receipt of the appeal outcome, the Respondent then corresponded with the IPS on 15.04.2020, and proposed that the IPS would engage the Complainant directly, and after a number of reminders and follow up by the Respondent , the IPS confirmed on 05.05.2020 that this was not possible, and said they did not offer contracts of service or contracts for services to individuals, in respect of the operation of their Resource Centre. It should also be noted that during the period November 2019 – May 2020, that the IPS and the Respondent were engaged in ongoing discussions around the implementation of a Service Level Agreement which would properly facilitate the continued engagement of the FRC Manager. This was finally agreed on 05.05.2020 and signed in July 2020, but had almost necessitated a temporary layoff in respect of the Complainant’s role in April 2020, and had also prevented the necessary recruitment and handover exercise commencing in respect of the Complainant’s pending retirement. This situation was further compounded by the FRC being closed due to Covid 19, during the period 13.03.2020 – 20.06.2020. The CEO then wrote to the Complainant on 06.05.2020 to inform her that it had not been possible to find a way to offer continued engagement with the Castlerea Prison FRC, either directly by the Respondent , or through the IPS, and that the Complainant’s retirement would take effect on the expiry of her fixed term contract on 11th June 2020. Correspondence exchanged with the Governor of the Prison, significant efforts were made in the April/May 2020 period to act on Mr McGlynn’s recommendations, with regard to exploring a suitable option that would not compromise the Company’s Retirement Policy, but which were ultimately unsuccessful
Discussions then took place with the Complainant and Ms Carina Lennon, the Chief Financial Officer, to review the option of a volunteering arrangement in the FRC, with the Complainant indicating that she wanted to remain in her role as Manager of the FRC and expected to be reimbursed at the level that she had been paid at (19,773.26 per annum /€23.76 per hour), as well as requiring confirmation that her “post” would have no fixed term attached to it. Ms Lennon explained to the Complainant that she could be reimbursed for expenses related to the care of her husband whilst volunteering, which was in line with volunteering guidelines to ensure that volunteers are not out of pocket, but this was not acceptable to the Complainant. It was then outlined that the Complainant could claim for travel and subsistence expenses for the three days per week that she would be volunteering, but this was also not acceptable to the Complainant, who had had indicated all along to Ms Lennon, that she would be taking a claim regardless.
It should also stated that references to FRC volunteers receiving €40 per day as made by the Complainant in her appeal letter of 14.05.2019 are arrangements put in place by and paid directly by the FRC, and these payments do not go through the Respondent .
The Complainant declined to participate in any handover process with her role as required by her line manager, or to cooperate with locating files and documentation pertaining to her former role, and no further correspondence or engagement took place after 06.08.2020, as per email from her representative sent on 11.08.2020.
With reference to the assertion by the Complainant that there are a number of individuals working beyond the retirement date in the retirement policy of the Respondent under various arrangements, this is not the case and there are no comparators available to the Complainant in this regard. However, as also offered to the Complainant, two members of staff have completed volunteering duties after retirement, one (Mr M) for a short couple of months in 2018 with no expenses paid, and one other (Mr C), who has engaged in volunteer activities since his retirement in 2013, in areas of personal interest, that are not connected with his former role as a RSS Supervisor. This has involved him inspecting recreational walks in the Suck Valley Way, and also handing out tourist information at Knock Airport, for which he is reimbursed travel and phone expenses only. Mr C also successfully obtained work in his own right as a contractor through an open tendering process in 2017, to complete a small amount of maintenance work on the Suck Valleys walks, which generated payments in the region of €2k approx. per annum for three years.
With regard to the alleged meeting that took place with the Complainant on the 6th May 2020 no such meeting took place and it was refuted completely that contact was subsequently made to offer a new employed position, as Director of Services at the FRC for 10 hours per week, on a salary of €1,200 per month. This position does not exist and this salary level would have equated to €30 per hour, representing an increase of almost 30% on the Complainant’s hourly pay rate of €23 prior to retirement. Furthermore, on foot of the letter of 6th May 2020 as issued from Ms Earley in which it was outlined that it had not been possible to offer continued engagement in a self-employed capacity or through direct employment with the IPS, it is difficult to logically understand the claim that subsequently a new offer of employment was made on an increased salary. Following a meeting between between Ms Earley and the Complainant on 18.05.2020 at the FRC, at which the Complainant confirmed she was interested in volunteering, a number of discussions then took place between Ms Lennon and the Complainant, via telephone and by email between 18th – 21st May 2020. Emails exchanged from 18th – 21st May outline clearly that there was no position being offered and arrangements being proposed only related to volunteering: “There is no fixed term post being offered…………..however you are welcome to volunteer for as long as you wish ………..once we have funding” . The matter of a potential reimbursement for carers expenses was raised on foot of Ms Lennon’s knowledge that the Complainant’s husband had been previously ill, which the Complainant had spoken to her directly about in previous years, and her specific recollection of the Complainant being upset on the telephone and telling her how ill her husband was. It is strongly denied that there was any attempt to commit a fraudulent act in this regard, and such carers expenses are deemed to be legitimate and in line with volunteering guidelines, a copy of which were issued to the Complainant on 18th May 2020. Travel expenses were discussed on the basis of such expenses being allowed as a legitimate volunteer expense, and Ms Lennon calculated that revenue approved expenses for travel and subsistence would generate approx. €387 per month, based on her understanding that the Complainant lived approx. 10 miles from the FRC.“…the only option subject to funding is the travel and subsistent as you have said your journey to volunteer is greater than 8 kilometres (4.9 miles) at the civil service rate and the Revenue approved voucher which at a quick glance s €387 a month. The hours volunteering would be between you and the manager”.
The Complainant’s assertions that the Code of Practice on Longer Working was not applied fairly and equitably was denied and on the contrary, each application to extend employment as submitted by the Complainant was afforded a comprehensive review, as well as the Complainant being granted the right of external appeal twice, in line with the Code. In addition, one other employee who appealed the Respondent’s decision not to extend his employment beyond 66 years, was also not successful in remaining in employment. It was therefore submitted that there was no evidence available to support any inequitable or unfair treatment of the Complainant as claimed with regard to the application of the Code of Conduct on Longer Working.
Finally, the Complainant’s claims that she would only be obtaining the age of 66 years on her next birthday at the time of submitting her claim to the WRC in May 2020 are at odds with the documentation held on file in this regard with the Complainant’s driving licence indicating her date of birth to be 12.06.1953.
The following legal context and case law precedent is referred to in respect of the Respondent’s position. It was submitted that the application of the Respondent’s retirement age did not constitute discrimination, as provided for in Article 6 (1) of the European Council Directive 2000/78/EC, which allows discriminatory treatment on the grounds of age, subject to objective and reasonable justification, and where the means of achieving these aims are appropriate and necessary, with mandatory retirement specifically not prohibited in Ireland in this regard, as per the Employment Equality Acts, with Section 34 (4) Employment Equality Acts EA 1998 stating that “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- It is objectively and reasonably justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary”.
In this regard, against the provisions of Section 34 (4) of the Employment Equality Acts, it was submitted that the availability of a documented retirement age from the formation of the Respondent in 2009, which was subsequently updated and framed within the Respondent’s Retirement Policy of 2019, to reflect a consistent approach to retirement within funding restrictions and other objectives, was legitimate and appropriate. Against the diverse range of roles in the Respondent, the case of Paul Doyle v ESB International (Dec – E2012- 086), is also referred to, in which it was determined that one retirement age across different categories of staff was acceptable in the interests of workplace cohesion: “While I do note that such “genuine occupational retirement” does not apply to the complainant whose occupation was that of a graphic designer, I do find that legitimate employment policy means that a respondent is entitled to maintain a retirement age that ensures cohesion among all of its employees. Having different rules of retirement for different employees may threaten the cohesion and open up other areas of discrimination that may not be subject to an objective justification test”
It was also further submitted that as per Donnellan v The Minister for Justice, Equality and Law Reform [20081IEHC 467], that in order to determine justification for a retirement policy and age, it is not necessary that all reasons need to be justified, with Justice McKechnice stating: “Before continuing, I would note that it is firmly established that where justification is sought and multiple reasons are given it will be enough that one or more of the justifications advanced, amount to a legitimate aim.” In Claire O Dowd v Fransican Province if Ireland ADJ- 0024869, the Company operated a wide retirement policy to sustain employment opportunities and based on the need to have a balanced age structure, across all roles, and it had a retirement age in its contracts and handbook and was found not be discriminatory. In A General Operative v a Manufacturing Company ADJ-00016006 the Adjudication Officer determined that whilst a prima facie case was established, the Respondent had engaged comprehensively with the employee on retirement matters and no discrimination occurred, with the mandatory retirement age justified by substantial reasons and no evidence available of any comparators allowed to continue working past retirement age. In Judy Bamford v Citizen’s Information Phone Service Limited ADJ-00017442 the Complainant was not allowed to work beyond the expiry of a 12 month fixed term contract offered past her retirement age of 65 years, and her case failed as there was a reference to a retirement age in both the Complainant’s contract of employment and staff manual, which was objectively justified by a legitimate aim that was appropriate and necessary. The Complainant had also accepted a fixed term contract on the basis that it was for one year.
The matter of implementing the retirement of the Complainant was not related to the cost/funding per se of her individual position, but rather it is the Respondent’s position that funding restrictions which apply to over 80% of positions in the Respondent provide a key justification for it’s Retirement Policy. Additionally, it is not correct that there was no cost to the Respondent with regard to the facilitation of the Complainant’s position in the FRC, with ancillary costs being covered directly by the Respondent and only more recently provided for under a negotiated service level agreement that was signed in July 2020.
In summary, it was submitted that the Respondent had a clearly documented Company retirement age, that was consistently applied to multiple retirements over the years, and which was set lawfully within the parameters of the Employment Equality Acts 1998 – 2015. the Complainant acknowledged and recognised the legitimacy of this, through her applications to continue working past retirement age, which were dealt with fairly and comprehensively as per the Code of Practice on Longer Working. There are no comparators available that can support the Complainant’s claim of discrimination in respect of her retirement, with the Complainant declining to avail of the alternatives proposed in respect of continued engagement with the Respondent , in the capacity of an expensed volunteer.
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Findings and Conclusions:
The 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 a) it is objectively and reasonably justified by a legitimate aim b) the means of achieving that aim are appropriate and necessary. Section 34 (4) states: 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. Findings and conclusions The Complainant established a prima facie case of discrimination and the burden of proof shifted to the Respondent. The Adjudicator having considered the submissions from both parties and the evidence put forward notes that the core justifications for having a common retirement age of 66 was to harmonise retirement ages between staff and that public funding for posts ceased at that time. The Adjudicator also notes that no comparators of staff working beyond 66 were provided to the last Hearing as evidence of discrimination despite being initially alleged as grounds of discrimination at the first Hearing and the Complainant being given time to establish such information between Hearings. The Respondents grounds also for justification for the retirement age of 66 for all staff is that they do not have the finance/capability/approval to fund a role from the public funds they receive for a person in receipt of a retirement pension. Equally relevant is the fact that 46 staff had retired based on this policy and to differentiate one employee (the Complainant) from the policy would cause both major issues for funding in the Organsation and possible discrimination of other employees. The Complainant had been given the opportunity to address a management sub-committee, two independent investigations, one of which would have found in her favour if the Complainant had produced evidence of other staff working beyond 66 which she did not at any stage, and utilised the right of appeal internally and externally. With regard to the Statutory Order on Longer Working in 2017 no significant deviations from this were convincing and indeed the Oder itself allows for an “equal and consistent approach” to managing longer working hours. This appears to manifest itself in the Respondent business by allowing, subject to review “case by case” and funding, the maximum of one extra years fixed term work after normal retirement age. The Complainant was given this exception. With regard to an offer of employment after the age of 66 there was no written evidence of this and this was convincingly supported by the evidence, on oath, by the CFO. While discussions did take place regarding payments/expenses for both volunteering or Carer roles these were explorative in nature to establish the possible personal circumstances of the Complainant and the Parties are to be commended for exploring these options and no evidence of any wrongdoing or malfeasance by either party emerged from these contributions and the discussions do not affect the core issues for consideration regarding the discrimination complaint. While there was much made of, and significant disputed evidence, regarding terms for potential other roles and volunteering roles there was no evidence provided to the Hearing that was persuasive enough to change the fact that public funding for roles ceases at the age of 66 and that this is both “ objectively and reasonably justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”. |
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 Act.
I find that the Complainant was not discriminated against. |
Dated: 19th April 2022
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Key Words:
Age discrimination |