ADJ-00029859

Complainant

Respondent

Parties

Doreen  Nolan

Alsaa

Representatives

Des Courtney SIPTU

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-00039563-001

03/09/2020

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

Two witnesses for the complainant and three for the respondent took the affirmation at the start of the hearing.  As much of the factual evidence was agreed upon by the parties, evidence was only heard from one witness on each side, the other party had the opportunity to cross examine the witnesses.

The complainant was paid at an annual rate of €28,000 in her final pre-retirement year.  This amount was agreed by the parties.

The complainant submitted that she was less favourably treated on the basis of her gender and of her age.

The complainant submitted that she was forced to retire at 65 simply because she had turned 65.  No other justification was offered.  When she sought to stay on she was offered fixed term contracts for two one-year periods following her retirement.

The complainant submitted that although the first contract was given on the same level of wage as when she was working on a permanent basis.  The complainant submitted that the respondent would only offer her the second fixed term contract if she agreed to a 19.5% cut in wages.

The complainant submitted that she was the only person who was forced to retire and that other employees had remained on as permanent employees long after their 65th birthday, some into their 70’s.

The complainant indicated that one of those kept on continued to be paid at his full wage rate for the two years he worked following the retirement age.

The respondent submitted that in 2010 following a review of its Human Resources policies, it introduced an employee handbook which contained a retirement age of 65.  When the complainant reached the age of 65 she was required to retire in accordance with the handbook guidance.

The respondent submitted that the complainant sought to continue working and as she was the first employee to retire since the introduction of the Employee Handbook, there was some negotiation around what the complainants continued employment condition would look like.

The respondent submitted that the complainant was offered and took a one-year fixed term contract at the same terms and conditions.  The respondent submitted that in the second fixed term contract the complaint was offered a wage rate of around 20% less.  Following the conclusion of that contract, the complainant was informed that it would not be possible to extend her employment further.

The respondent submitted that the nominated comparator chosen by the complainant was not valid as he was not an employee but was providing his services on a self-employed basis.

The respondent submitted that around the same time as the complainant retired, two other employees, one male and one female, were also given two single year fixed term contracts after reaching normal retirement age and the complainant was treated no less favourably than these two relevant comparators.

As the hearing proceeded and the representatives outlined their respective cases, it became apparent that there was no fundamental disagreement in the factual basis of this complaint and accordingly, evidence was only required and proffered by one witness on each side.

From the written and oral submissions, the following facts were established:

·       The complainant worked for the respondent from August 1988 to 20 May 2020

·       In 2010 the respondent introduced an employee handbook which outlined a retirement age of 65 but gave no rationale for its introduction.

·       The respondent provided no rational for the retirement age to employees at any stage, save for indicating that this was the retirement age.

·       Although there had been other employees who retired at a later age during the company’s history, the complainant was the first employee to reach 65 following the introduction of the retirement age.

·       The complainant was instructed that she would have to retire upon reaching 65.

·       When the employee sought to remain on in employment, the respondent offered her a fixed term contract, for the first year at the same rate of pay and subsequently a second fixed term contract at a rate of almost 20% less.

·       When a named male colleague came to the age of 65 he was kept on for a further two years on contract extensions at the same rate of salary throughout.

·       The complainant was informed that she could no longer work past the age of 67.

·       The respondent indicated that it never indicated to the male colleague that he could no longer work on after the age of 65, he simply chose not to apply to work beyond that date.  (The respondent indicated that if he had sought to work on beyond that date he would not have been allowed).

The respondent introduced a retirement age and enforced it.  The complainant has established facts from which an inference of discrimination may be taken.  Accordingly, it falls to the respondent to rebut this inference or to provide a defence of its actions.

The complainant suggested that the respondent simply chose a retirement age without providing any justification for that age limit.  The respondent through submission and testimony confirmed that this was the case, that no justification was provided to staff at any stage.  The complainant submitted she was employed in a receptionist type situation where most of the clientele are older and submitted that the position was not an onerous one.  The respondent agreed that this was the case. 

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.

Accordingly, whilst the respondent is entitled to set down a retirement age, the setting of a retirement age must be objectively justified.  This is a matter of settled law.   Having regard to the foregoing, I find that the respondent has not rebutted the inference of discrimination nor provided any defence of that discriminatory act.  Accordingly, I find that the age complainant is well founded.

Although the issue of timeframes was not specifically raised in the submissions, it may also be useful to make the following observations in this case: the setting of a retirement age of 65 in 2010 and the enforcement of it in 2018 appear to be out of time.  However, the respondent also indicated that in considering whether to allow staff to work on beyond the age of 65 they had a ‘rule of thumb’ that staff would only be allowed to work on for a further two years.  In effect it was ignoring its stated retirement age of 65 and bringing in a retirement age of 67.  Once again, the respondent indicated that it did not have or provide any justification, objective or otherwise, for the imposition of this ‘informal’ mandatory retirement age.  These deliberations and the enforcement of this retirement age occurred within the six-month time frame envisaged by the Act for taking complaints under the Act. 

In relation to the claim of discrimination on the gender ground, although the respondent denied treating the complainant differently to her male colleague, it transpired that the respondent would only agree to provide the complainant a second fixed term contract on condition that she take a pay cut for the duration of that contract.  Her male colleague was not subject to the same reduction. The complainant has established facts from which an inference of gender discrimination may be taken.  Accordingly, it falls to the respondent to rebut this inference or to provide a defence of its actions.

The respondent confirmed that the male colleague was not subject to a wage reduction for his second fixed term contract.  It also appears from the oral testimony that the male colleague was not told that he would not be refused an additional fixed term contract. Rather the respondent was silent on this as the male colleague indicated that he wished to retire upon reaching 67.  No reason was provided for this difference in treatment.  Having regard to the foregoing, I find that the respondent has not rebutted the inference of gender discrimination nor provided any defence to account for that discriminatory act.  Accordingly, I find that the gender complainant is well founded.

I note that at the hearing of this matter, the respondent undertook to pay the complainant the amount which her final fixed term contract was reduced by.

Having regard to my findings that the complaint of age discrimination was well founded, my decision is to award the complainant compensation equivalent to 26 weeks of remuneration, that is €14,000.

Having regard to my findings that the complaint of gender discrimination was well founded, my decision is to award the complainant compensation equivalent to 26 weeks of remuneration, that is €14,000.

For the avoidance of doubt, my decision is to award the complainant total compensation equivalent to 52 weeks remuneration, that is €28,000.

Employment equality, retirement age, gender, prima facie complaint, compensation