ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00031133

Parties:

	Complainant	Respondent
Parties	James Spencer	Heavey Technology - Quality Labels

	Complainant	Respondent
Parties	James Spencer	Heavey Technology -Quality Labels

Representatives

Michelle Quinn Solicitor, Colm O'Cochlain & Co

Mr Patrick Burke-Director

Complaint(s):

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00041396-001	03/12/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00041396-002	03/12/2020

Date of Adjudication Hearing: 28/03/2022

Workplace Relations Commission Adjudication Officer: Brian Dalton

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).

Background:

The complainant arising from Public Health advice based on his age requested leave from his company. He stated that he advised his employer that he wished to return to work after being on leave for several months. However, this request gave rise to a series of interactions with the Sales Director that ultimately led to his dismissal on the ground of his age.

The complainant commenced employment on the 29th of March 2010.

The complainant’s date of birth is 20th of April 1952.

At the date of dismissal on the 3rd of July 2020 the complainant was 68 years of age.

The complainant maintained that there was no company policy relating to compulsory retirement.

The company stated that there was a company retirement age based on the eligibility for the contributory state pension which at the date of termination was 66.

At the company’s sole discretion and based on individual suitability and business need an employee may continue to work after the age of 66 subject to review.

On the 19th of June 2020 the Sales Director wrote to the complainant and stated:

…unfortunately given the national developments and health pandemic over the last number of months I have had to reconsider this (compulsory retirement age), and I am now making it an official company policy that retirement be taken in line with the state pension age which is currently 66 years of age.

….it is a policy change which I feel needs to be implemented given the current environment

I would propose either of the following dates for you to come to the office in Lucan to discuss.

Tuesday 30th of June @ 4pm

Thursday 1st July @ 4pm

The complainant maintained that this change cannot be made unilaterally. He stated that the practice at the company was to allow an employee to continue to work.

The company stated that it had in the past allowed a manager to work past their 72nd Birthday and had allowed the complainant to work until he was age 68.

Summary of Complainant’s Case:

The employee had an expectation that he could work like any other employee; subject to his physical and mental capacity to do so. The custom and practice at the company was not to impose a mandatory retirement age. The company did issue a contract around 2015 for the first time, detailing a retirement age linked to the age eligibility for a state pension; however, he never signed that contract. A contract cannot be changed unilaterally. In any case as was the custom and practice he had continued to work past the state pension eligibility of 66. A colleague of his had worked into his 72nd year. The complainant was dismissed because of his age and not because the employer exercised an agreed retirement term of the employment contract. Since being dismissed he had applied for several positions as a general operative without success.

Summary of Respondent’s Case:

The company denied it discriminated on the ground of age. The company had a clear retirement policy. During normal times it facilitated a retirement process that was flexible. The change in the policy arose because of the pandemic. The policy allowing an employee to work past 66 years of age was on an individual basis. The company invoked the retirement age term stated in the employment contract due to the public health guidelines that indicated older people such as the complainant were more vulnerable to the virus. To protect him the company asserted its right to retire the employee.

Findings and Conclusions:

CA-00041396-001

The Unfair Dismissal Act 1977 as amended provides for:

Exclusions.

2.— (1) Except in so far as any provision of this Act otherwise provides. This Act shall not apply in relation to any of the following persons:

( a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him ,

(b) an employee who is dismissed and who, on or before the date of his dismissal, had reached the normal retiring age for employees of the same employer in similar employment or who on that date had not attained the age of 16 years,

It also provides at section 6 that:

Unfair dismissal.

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(ee) the age of the employee,

In this case the employee stated that the custom and practice regarding a retirement age at the company was flexible based on individual preferences and most definitely was not mandatory.

The company stated that it facilitated employees to transition into retirement. This meant an employee could retire at 66 or later However the policy was to link the company retirement age to the eligibility for the state old age contributory pension which is now 66.

The company stated it had clarified its policy in new contracts issued to staff in 2015.

There is no signed contract on behalf of the complainant.

The law states that an exclusion exists where:

(b) an employee who is dismissed and who, on or before the date of his dismissal, had reached the normal retiring age for employees of the same employer in similar employment

The company in evidence stated that up to the pandemic it had a flexible approach to the retirement age. However, based on public health guidelines it wanted to protect vulnerable employees and on the 19th of June 2020 wrote to the complainant and stated:

…unfortunately given the national developments and health pandemic over the last number of months I have had to reconsider this, and I am now making it an official company policy that retirement be taken in line with the state pension

This evidence is clearly supportive of the complainant’s position that the employer unilaterally changed his terms.

Regan Employment Law

[18.79]

If a contract contains a ‘normal retiring age’ that will be the relevant age for the exclusion. In accordance with the Equality (Miscellaneous Provisions) Act 2015, an employer can continue to set the compulsory age for retirement, but such mandatory retirement age must be capable of objective justification. If a contract contains no ‘normal retiring age’ for employees, an Adjudication Officer and the Labour Court will look at the normal retiring age of employees of the same employer in similar employment. In Donegal County Council v Porter 71 all four employees were employed as part-time retained firemen. They were dismissed on the date each one of them respectively attained the age of 55 years. They challenged their dismissal under the 1977 Act. The case eventually went to the High Court where both sides agreed on one central fact, namely that when the employees joined, beginning in 1960, there had been no formal written contract and no reference to a specific date of retirement. The Court was satisfied that each employee was employed on the basis of an expectation that, all things being equal, he would continue in the fire brigade service until 60 years. Hence it found that was the ‘normal retirement age’.

This case has many similarities to Donegal County Council v Porter, which was appealed to the High Court [1998 WJSC-HC 6451]. The learned Judge stated:

Mr. Mallon sought support for his contention from Mr. Justice Barron's decision in Heaney -v- The Dublin Corporation - unreported the High Court May 16th, 1991 - a fatal injury claim by a fire man's widow for the death of her husband from a coronary attack sustained in the course of fighting a fire.

25.

In my opinion the genesis of this decision was that the fire authority, the Dublin Corporation, was negligent in having the deceased on active service having regard to his age and his manifest physical condition without having insisted on a medical examination.

26.

Mr. Mallon's contention and submission is that there is a known risk which the Council have a duty to avoid, and that that risk "constitutes substantial grounds to justify dismissal". Dismissal, as I see it, would be a blanket performance in compliance with the said statutory duty under Section 6 of the Safety Health and Welfare Act, . In my view there is undoubtedly a statutory duty to observe. The Council can observe it by a much less draconian measure than dismissal at the age of 55 and one which does not involve a blatant disregard for the Council's contractual obligations to the Appellant/Respondents and others in their category. They can comply with their said statutory obligation by requiring the Appellant/Respondents to undergo a medical examination from such age and at such frequency as they consider necessary to assure all persons concerned of the physical fitness of the men in the fire-fighting services whilst engaged on fire-fighting duties. This is consistent with the terms implicit in the men's contract of service - while fit and capable they have a contractual expectation of service to age 60 - if not fit and capable there are "substantial grounds justifying dismissals".

The fact is no public health guidelines exist that require an employer to retire employees over the age of 66 because they were more vulnerable to younger employees. The manager who made the unilateral decision to change the retirement policy because the complainant was of a certain age and was allegedly more vulnerable; is not medically qualified to make that decision. It may have been reasonable if the decision was based on independent medical advice, but it wasn’t. The fact is many employees in this age category continued to work during the pandemic and took the necessary precautions to minimise harm to themselves. There is no evidence to suggest that this employee was unfit to work. The practice in this company on the evidence of both the employee and the manager was to facilitate employees to continue to work past a notional age for retirement and one employee had in fact worked until his 72nd year.

The fact is that there was no mandatory retirement age at this company up until the 19th of June 2020 and that is clearly affirmed in the letter to the complainant (dated the 19th of June 2020) to the employee when the manager stated that: ‘and I am now making it an official company policy that retirement be taken in line with the state pension’.

I note Regan in Employment Law Bloomsbury 2nd ed 2017 at:

Variation clause

[3.47]

It is wise for an employer to include an express right to vary the employee’s terms and conditions of employment, should the need arise. The absence of a variation clause makes it very difficult for an employer to consider altering the employee’s terms and conditions of employment, even where the circumstances would seem to make it reasonable for the employer to do so. The variation, where there is a variation clause, must be exercised reasonably. In the Court of Appeal of England and Wales decision in Wandsworth London Borough Council v D’Silva 50 Lord Woolf MR made it clear that, whilst an employer may reserve a contractual right to unilaterally change a particular aspect of an employment contract, clear language must be used and if the unilateral change could produce an unreasonable result, the courts in construing the contract would ‘seek to avoid such a result’.

On the evidence the manager is making a unilateral change without the right to do so. Is that change reasonable? The reason being that the employee is vulnerable and therefore should retire! This is not reasonable, as the manager’s decision distorts public health guidelines to justify his decision.

The employee has made extensive efforts to mitigate his loss and it is evident that the conduct of the employer has caused very significant financial loss.

I note that the employee did not appeal the decision to the owner of the business; stating that he believed that there was no point as the policy change was so absolute.

The Unfair Dismissal Act 1977 clearly states that:

(ee) the age of the employee

And at section 7:

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court,, as the case may be, considers it appropriate to do so —

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal,

I determine that the employee was unfairly dismissed based on the ground of age where there was no normal retirement age and in circumstances where the vulnerability of the complainant was being assessed by the manager who was not medically qualified to do so.

Charleton J. in JVC Europe Limited v Jerome Panisi detailed how compensation where appropriate should be measured and determined:

(3) In this section -

63.

"financial loss", in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts to 2007, or in relation to superannuation;

"remuneration" includes allowances in the nature of pay and benefits in lieu of or in addition to pay."

64.

27. This section clarifies the consideration that is to be given to compensation for unfair dismissal. Payments under social welfare and income tax legislation are to be disregarded. In assessing compensation, the court should have regard to the implications for dismissal. My task is to assess the financial damage which the dismissal has brought about and then to place the measure of that damage against the maximum amount of compensation that is available. In the event that the compensation that is available, amounting to 104 weeks remuneration, is less than that sum, then that is the measure of damages. Where the quantum of damage is more, then the jurisdiction is limited to that maximum and the amount of damages must thus be reduced to that maximum sum. Where the measure of damages on dismissal is more than the maximum but contributory fault is found in respect of the dismissal against the employee, the reduction is on the totality of those damages, and not on the maximum award. If the result is to reduce compensation within the maximum award, that sum is appropriate. Where the reduction in total damages for contributory fault puts the damages above the maximum award, then the maximum award is the correct measure of compensation for unfair dismissal.

The employee was dismissed due to no fault on his part. However, time has moved on and it is not practical to reinstate him and having regard to his request for compensation; I determine that this is the correct form of redress in this case.

It is highly unlikely that the complainant will be re-employed. The complainant was dismissed in his 68th year. It is highly probable that he would have worked until his 70th birthday. In these circumstances I determine that his actual loss is 78 weeks or 18 months. His gross annual salary at the time of dismissal was €21,039 x 1.5= €31,558.

I award the complainant €31,558 as compensation for the financial loss arising from being unfairly dismissed.

CA-00041396-002

The complainant also brings a complaint pursuant to section 6 of the Employment Equality Act 1998 as amended. In the complaint form it is alleged that:

I was discriminated against because of my age. There was no retirement age in the company and other colleagues worked past my age of 68 years in my years of employment with them. . My employer tried to introduce a mandatory retirement age of 66 years during COVID 19 and unfairly dismissed me on grounds of age

I note that at section 101 of the Act it states:

Alternative avenues of redress.

101.— (1) If an individual has instituted proceedings for damages at common law in respect of a failure, by an employer or any other person, to comply with an equal remuneration term or an equality clause, then, if the hearing of the case has begun, the individual may not seek redress (or exercise any other power) under this Part in respect of the failure to comply with the equal remuneration term or the equality clause, as the case may be.

And

b) an adjudication officer has made a decision to which subsection (1) of section 8 of the Unfair Dismissals Act 1977 applies in respect of the dismissal.

Section 8 states:

(1) (a) A claim by an employee against an employer for redress under this Act for unfair dismissal may be referred by the employee to the Director General and, where such a claim is so referred, the Director General shall, subject to section 39 of the Act of 2015, refer the claim to an adjudication officer for adjudication by that officer.

Solicitor for the complainant stated this complaint was separate to the dismissal and related to how the complainant was treated prior to the actual dismissal.

The facts of this complaint in essence are the same as those for the Unfair Dismissal.

I note the reference to parallel claims in the Arthur Cox Yearbook 2017:

[5.11]

Culkin v Sligo County Council 20—Court of Appeal—Peart, Irvine & Hogan JJ—appeal from High Court 21—Employment Equality Acts 1998 to 2015, ss 77(1) and 101—multiplicity of litigation—rule in Henderson v Henderson—complaint before Equality Tribunal and personal injuries proceedings before High Court arising out of same alleged set of facts

Indeed, Hogan J observed that one could come to the same conclusion by reference to the wording of the Acts themselves and in particular, s 101(2)(a) regarding the issue of complementary remedies. Looking holistically at ss 101 and 102(2)(a) and applying the decision of Black J in The People (Attorney General) v Kennedy, 25 Hogan J found that s 101 of the Acts:

serves to bar complementary claims for discrimination before the Tribunal and at common law in respect of claims based on failure to comply with an equal remuneration term or an equality clause. But it has no wider meaning and, specifically, it does not bar subsequent personal injuries claims per se where an earlier discrimination claim before the Tribunal has failed.

Hogan J therefore allowed the appeal insofar as Kearns P held that the personal injuries claim must automatically fail in limine as an abuse of process by virtue of the plaintiff’s failure to prevail before the Equality Tribunal. However, he again cautioned that it would also be open to the trial court to determine that the personal injuries claim—or, at least, parts of the claim—should fail on the ground that it amounted in substance to a collateral attack on the decision of the Equality Tribunal.

I note that the Labour Court in Sorenson v TeagascEDA 1723, refused to allow facts which were argued in a claim pursuant to the Employment Equality Acts in circumstances where they had been put before the WRC and Labour Court in a claim under the Protection of Employees (Fixed-Term Work) Act 2003.

In essence the complaint brought under the Equality Act is the same claim that has been determined under the Unfair Dismissals Act as it states that the treatment complained of is compulsory retirement based on age.

I determine that as I have already awarded compensation under the Unfair Dismissal Act a further award under the Equality Act would amount to double compensation based on the same facts and therefore note the decision of School v A Worker EDA 122 where the Labour Court held that an employee cannot “rely on the same facts to obtain redress under more than one head of liability.”

I determine that this complaint because it amounts to a parallel claim is not well founded.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

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.

CA-00041396-001

The Unfair Dismissal Act 1977 clearly states that

(ee) the age of the employee

And at section 7:

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court , as the case may be, considers it appropriate to do so —

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal

I award the complainant €31,558 as compensation for the financial loss arising from being unfairly dismissed.

CA-00041396-002

I determine that this complaint because it amounts to a parallel claim is not well founded.

Dated: 22nd April 2022

Workplace Relations Commission Adjudication Officer: Brian Dalton

Key Words:

Dismissal -Age-Parallel Claim