Complainant

Respondent

Parties

Mary  Gavin

Aer Lingus Social Athletic Association Alsaa

Representatives

Des Courtney SIPTU

Did not attend

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-00045481-001

30/07/2021

The complainant commenced employment with the respondent on 11/05/1988 as a Reception Manager. In January 2019 she was advised by the CEO that she was to be compulsorily retired on the date of her 65th birthday, i.e., 22/03/2019.  At her request she was given two one-year fixed term contracts.  The complainant was paid €857.56 gross (€472.72 net) per fortnight.  She worked 20 hours per week. She was dismissed from her employment on 22/03/2021 when her second fixed term contract expired.  Her employment was terminated solely related to her age.

At the outset of the hearing the complainant’s representative noted with disappointment that there was no representative present from the respondent.  On behalf of the complainant, it was noted that she had given almost 34 years of loyal service to the respondent, and it was disappointing to note that she was not given the courtesy which she would have expected from the respondent.

The complainant’s representative submitted that the respondent was involved in a similar complaint, ADJ-00029859, which was adjudicated on by the WRC and was awarded €28,000.  The complainant’s colleague, Ms Doreen Nolan, who was successful in that case was present at the hearing.  The complainant’s representative provided a copy of the respondent’s appeal in that case to the Labour Court which expressly noted that the appeal form states: “While we accept the officer’s decision, we feel the quantum award is excessive for a “not for profit” sports club”.

The sequence of events which led to the complainant’s dismissal is as follows:

a)       19/01/2019 the complainant was advised by the CEO, Mr Jim McEvoy that she was to be compulsorily retired on the date of her 65th birthday.

b)      16/01/2019: Ms Gavin advised the CEO that it was not her intention to retire on that date.

c)       11/0-3/20129:  Complainant issued with a one-year fixed term contract which was to expire on 22/03/2020.

d)      30/01/2020: The complainant gave notice of her intention to work beyond 22/03/2020.

e)      A further fixed term contract was issued to the complainant which was to expire on 22/03/2021.

f)        22/03/2021:  The complainant was dismissed from her employment.

g)       The dismissal was appealed, and this was rejected by way of letter dated 02/03/2021.

It was submitted on behalf of the respondent that the Industrial Relations Act 1990 (Code of Practice on Longer Working (Declaration) Order 2017 (S.I. 600/2017) provides:

“Retirement ages in the private sector are generally set out by means of:

(a)    An express term in the employee’s contract of employment,

(b)    An implied term in the employee’s contract of employment,

(c)     Relevant policies, for example a staff handbook; and

(d)    Custom and practice generally arising from the pension date set out in the relevant occupational pension scheme”.

The code further provides clarity in relation to objective justification:

“Essentially the law is now that compulsory retirement ages set by employers must be capable of objective justification by the existence of a legitimate aim and evidence that the means of achieving that 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 was fit and capable and eager to remain in her role.  There was no evidence that any of these matters had been considered and no explanation or objective justification was offered by the respondent for the decision to treat her differently to other employees.

It is also significant to note that despite its inclusion in the handbook, prior to the complainant, there was only one compulsory retirement at the age of 65 within the company.  This is the case referred to earlier where that employee received compensation in the amount of €28,000 for similar breaches of the Act.  These breaches have now been accepted by the respondent.

A number of the complainant’s colleagues have continued to work beyond the age of 65 with no compulsory retirement.  The complainant’s representative provided documentary evidence from one of those, Ms PJ, to confirm that she retired from her employment with the respondent in June 2015 at the age of 74.  The employee in this case was a cleaner and it could be argued that her role was of a more onerous nature than that of receptionist duties, but she was not compulsorily retired.  It was also submitted that the CEO continues to work for the respondent at the age of 74.  The complainant believed at all times that she would continue to work beyond the age of 65 without any issue.  It was only when she was otherwise advised that she became aware of this.  The complainant’s representative also provided an e mail from the previous CEO who advised that during her tenure the respondent “did not have a policy to enforce retirement at any age”.  A copy of this e mail was provided to the respondent on 06/08/2022.  The respondent did not seek refute this.

The complainant’s representative made a legal submission and specifically noted that Section 6 of the Employment Equality Acts defines discrimination:

Section6(1)(a) of the Act provides that,

“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…which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned”

Subsection (2)(f) provides that age is included in the grounds on which discrimination is prohibited”.

Section 34 of the Act provided for savings and exceptions regarding retirement age and in Section 34(4) the Act specifically states:

“Without prejudice to subsection (3), 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”.  The key point underpinning this legislation is that it must be objectively and reasonably justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary

It is the complainant’s submission that there is no defence to the complainant’s compulsory retirement in 2021.

Regarding the burden of proof for such complaints, Section 85 allocates the probative burden between the parties. Section 85(A)(1) provides that:

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

The complainant’s representative opened a number of relevant case law precedents. In the case of Mitchell v Southern Health Board [2001] ELR 201 the Labour Court emphasised that the Claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”.

 In the case of Melbury v Valpeters EDA/0917the Labour Court elaborated further that Section 85A “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 no exceptions to that evidential rule”.

 In the case of the Director of Public Prosecutions v Robert Sheehan (EDA0416) the Labour Court found that: “In order to shift the probative burden it is not necessary for the Complainant to adduce direct evidence of discrimination on either the gender or the age ground”.

A further case was opened by the respondent’s representative in relation to the case of Donnellan v The Minister for Justice, Equality and Law Reform & Ors [2008] IEHC 467, McKechnie J stated:

“It is clear that the imposition of mandatory retirement age is discriminatory, per se, under the directive, in that, it places one person at a disadvantage to another, who would otherwise be in the same situation on the grounds of age alone”.

It was submitted on behalf of the complainant that they have established a prima facie case of discrimination on the grounds of age and contend that the burden of proof shifts to the respondent.

In that context the facts are clear.  Prior to her 65th birthday the complainant was informed by the respondent that she would retire compulsorily upon reaching her 65th birthday.  She was one of only two employees to be so treated by the respondent.  The respondent has accepted that in the case of the other employee in the case of ADJ-00029859, the respondent has fully accepted that her treatment constituted a breach of the Act.  The complainant in this case requested to work longer, and this was permitted through the use of two one-year fixed-term contracts, under the terms of the Equality (Miscellaneous Provisions) Act 2015.  Contracts such as these are also required to be objectively justified.  This was never provided to the complainant.  The complainant sought a further extension in advance of the expiration of her second fixed term contract.  There was no meaningful engagement on this, and her employment was terminated on 22/03/2022

The respondent or a representative on its behalf did not attend the hearing.  There was no explanation for their non-attendance.  The respondent did not provide any submission or documentation in relation to this complaint prior to or after the hearing.

This is a complainant seeking adjudication by the WRC under Section 77 of the Employment Equality Act, 1998. The complainant’s representative provided a detailed submission and a suite of appendices.  As requested at the hearing there were some pay slips submitted post hearing.

The facts of this case are clear.  The complainant commenced employment on 05/07/1988 and reached the age of 65 on 22/03/2019.  She was advised by the respondent on 14/01/2019 that she would be compulsorily retired on 22/03/2019.  The complainant advised the respondent on 16/01/2019 that she did not intend to retire and as a result of some engagement on the matter she was issued with a fixed-term contract on 11/03/2019 and this was due to expire on 22/03/2020.  On 30/01/2020 the complainant gave notice to the respondent that she intended to work beyond 22/03/2020 and following another series of correspondence she was issued with a further fixed term contract which was due to expire on 22/03/2021.  On reaching that date, 22/03/2021 the complainant was dismissed, and a subsequent appeal rejected her appeal.

At no stage was the complainant provided with any rationale or “objective justification” for either the fixed term contracts or the decision which resulted in her dismissal on 22/03/2021.

The relevant law.   Section 34(4) of the employment Equality Act 1998 – 2021 provides that:

 4) “Without prejudice to subsection (3), 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 –

(a) it is objectively and reasonably justified by a legitimate aim, and

(b) the means of achieving that aim are appropriate and necessary.

There is no prohibition on the respondent or any employer in determining a retirement age.  What the law requires is that that age must be “objectively justified”. 

In this case I am satisfied, based on the uncontested evidence provided, that complainant has proven the primary facts which are sufficient to raise a presumption of unlawful discrimination.  In those circumstances Section 85(A)(1) provides that,

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

The respondent did not avail of the opportunity to do so despite the confirmation from the respondent in an e mail to the WRC on 21/08/2021 declined the offer of mediation but confirmed that “we are willing to present our case at an Adjudication Officer hearing”.

The respondent’s CEO, Mr Jim McEvoy replied to the WRC notice of the hearing which was sent on 17/06/2022 stating that “ASLA declines the invitation to attend the WRC on 11th August for case number CA-00045481”.   No rationale or explanation was provided for this decision.

In these circumstances I find that the respondent has not rebutted the inference of discrimination or provide any defence of their position.  I find that this complaint is well founded as the complainant has established a prima facia case of discriminatory treatment on the age ground.

Redress

Section 82-(i)(c) of the Act provides that I can make an order for the effects of the discrimination.  Section 82(4) provides:

“The maximum amount which may be ordered by the Director General of the Workplace Relations Commission by way of compensation under subsection (1)(c) or (1)(f) shall be—

(a)    in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of—

(i)                  104 times the amount of that remuneration, determined on a weekly basis,

(ii)                104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or

(iii)               €40,000,

               or

         (b) in any other case, €13,000.”

Having regard to the totality of the evidence presented, the effect that the discriminatory treatment has had on the complainant and in order to ensure that the amount is effective, dissuasive and proportionate I award the complainant compensation in the sum of €18,400.

I find that this complaint is well founded, and the complainant was discriminated against by the respondent.  I award the complainant the sum of €18,400

Age discrimination.  Objective justification.