Complainant

Respondent

Parties

Séamus  Matthews

CPL Healthcare

Representatives

  N/A

Cian Conboy, IBEC

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-00043034-001

12/03/2021

The Complainant is over 70 years of age and alleges that he was discriminated against on the

grounds of age when his application of 23 October 2020 to become a contact tracer during the Covid-19 pandemic was rejected by the Respondent.

The Complainant stated that he applied for the position of a Contact Tracer and received an email from the Respondent stating that his application would not be progressed because of his age. He argued against this, pointing out ways to reduce this risk, and also stated that the possibility of infection in the workplace was very low.

He also stated there was no restriction on age or health grounds in the original advertisement for the contact tracer position and highlighted that those over 70 years of age working in essential sectors were not required to cocoon. He also asserted that the introduction of HSE Guidelines to the argument is understandable but is not legal. In addition, he stated that the HSE Guidelines on “cocooning” from age 70 years is arbitrary and that it could equally be applied to those over 60 years if the statistics covering the mortality of those in nursing homes are excluded.

He also highlighted his belief that a segmented graphic display covering all age groups would show those over 70 years and not in nursing homes in as favourable a light as, for example, those over 45 years. Finally, he stated that the case was not about HSE Guidelines but the discrimination used against him in not progressing his application.

On 23 October 2020, the Complainant applied for a Contact Tracer position with the Respondent’s client, the HSE. On 5 November 2020, the Respondent advised the Complainant via email that his application form indicated that he was over 70 years of age and in line with public health guidelines at the time he was advised to cocoon as this age group cohort was high risk and extremely vulnerable to the effects of COVID-19. Following this email of 5 November, confirming that the Complainant was in the over 70s age category, the Complainant should have been withdrawn from the recruitment process accordingly. However due to an administrative error this did not happen, resulting in an email of 9 November 2020 being later sent. This email sent in error stated that: “Following the interview process, please note there has been a high volume of applicants with more relevant experience and therefore we will not be progressing your application for the current recruitment initiative”.

Subsequently, on 22 December 2020, the Respondent once more advised the Complainant via email that his application form indicated that he was over 70 years of age and in line with public health guidelines at the time of the rejection of his application, he was advised to cocoon as this age group cohort was high risk and extremely vulnerable to the effects of COVID19. Central to cocooning was the requirement to stay at home and not meet others from outside of the Complainant’s household as much as possible.

On 23 December 2020, the Complainant expressed dissatisfaction with the Respondent’s decision not to progress his application while also highlighting his confidence in his physical ability to carry out the contact tracer role.

On 8 January 2021 the Respondent again advised the Complainant via email that in line with public health guidelines and their own Occupational Health advice they could not expose anyone in a “very high risk” category, including those over 70 years of age, to the risk of exposure to Covid-19 because they had an obligation to provide their employees with a safe place of work and were unable to sufficiently reduce the level of risk to ‘very high risk’ category workers in accordance with their obligation to provide a safe place of work.

The Law

Discrimination in accordance with the Employment Equality Acts is set out in section 6 and states:

6.— (1) 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 on any of the grounds specified in subsection (2) (in this Act referred to as the ‘ discriminatory grounds ’ ) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

( b ) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a) , constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

( a) that one is a woman and the other is a man (in this Act referred to as “ the gender ground”),

( b) that they are of different civil status (in this Act referred to as “ the civil status ground ”),

( c) that one has family status and the other does not (in this Act referred to as “ the family status ground”),

( d) that they are of different sexual orientation (in this Act referred to as “ the sexual orientation ground”),

( e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “ the religion ground”),

( f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “ the age ground”),

( g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “ the disability ground”),

( h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “ the ground of race”),

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (1) 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.”

Analysis

The effect of s.85A above is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the responsibility is on the Complainant to show that, based on the primary facts, he was discriminated against because of his age, as he asserted. 

I note firstly that the Labour Court in its decision in Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, addresses the nature of the burden of proof:

“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 speculations 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 proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

In the instant case, I note that the Complainant’s application for the position of contact tracer was rejected on 5 November 2020 because he was over 70 years of age and therefore find that he has established a prima facie case of discrimination on grounds of age. While the Complainant highlighted that new factors emerged, such as introduction of the covid vaccine, which meant that his application should have been re-considered, I can only make my decision on whether or not he was discriminated against on the date on which his application was rejected, namely 5 November 2020.

Given that a prima facie case was therefore established on 5 November 2020, namely the date on which the Respondent refused the Complainant’s application on age grounds, the burden now shifts to the Respondent to rebut the inference raised.

In making this rebuttal, the Respondent stated that the restrictive temporary measures for the over seventies put in place at the time of the rejection of the Complainant’s application as a result of the covid pandemic, served a legitimate and proportionate objective based on public health guidelines to protect staff and potential employees.

The Respondent also highlighted that the CJEU set out a test for determining whether a difference of treatment based on age is justified as an occupational requirement under Article 4(1) of the Framework Directive] in its judgement in Colin Wolf v Stadt Frankfurt am Main (C-229/08). The case concerned the rule that someone over the age of 30 years of age could not commence employment with the German Fire Service. In the view of the Court, high physical capability was a genuine and determining occupational requirement for the posts in question, and the imposition of a maximum age limit served as an adequate and effective proxy for the required level of physical fitness.

The test set out by the CJEU in the Wolf case above is as follows –

1)      the objective pursued must be a legitimate aim,

2)      the characteristic required must constitute a genuine and determining occupational requirement for the occupation activities in question,

3)      the characteristic must be age related,

4)      the requirement must be proportionate.

In applying the four limbs of the above test to the instant case, I note that:

1.       Legitimate Aim:

The Respondent stated that the restriction on age grounds in the instant case was a temporary

measure that was implemented in response to the state’s public health restrictions at that particular point in time. The Respondent argued that the measures served a legitimate objective of protecting the health and safety of both its employees and potential employees. I am satisfied that the objective advanced by the Respondent is a legitimate aim in terms of Article 4(1) of the Framework Directive and section 37(2) of the Employment Equality Acts 1998-2004.

2.       Genuine and Determining Occupational Requirement:

The second limb of the test provides that the characteristic required must constitute a genuine

and determining occupational requirement for the activities of the occupation in question. The

characteristic in this case is that the job applicant, in this case the Complainant, is not within a grouping which is categorised as high risk of becoming hospitalised and seriously ill if infection occurred.

The Respondent stated that the age threshold applied by them was selected by experts in dealing with infectious diseases and not by them or their own Occupational Health Physician. Specifically, the Respondent referenced the HSE document titled ‘Guidance on Fitness for Work of Healthcare Workers in the Higher Risk Categories, including Pregnant Healthcare Workers’ to make evidence-based recruitment practice decisions during the early stage of the Covid-19 pandemic prior to the vaccine. The document states that Covid-Age is based on the available evidence on risk factors for mortality from the disease. For the purposes of HSE guidelines, individuals associated with the Covid-Age range of 70-85 years are categorised as high risk of becoming hospitalised and seriously ill if infection occurs.

The Respondent also referenced a second 2020 HSE guideline document titled ‘COVID-19 Guidance for Older People and Others at Risk of Severe Disease on Reducing Risk of COVID-19 Infection,’ which states that “COVID-19 does not affect everyone the same way. Some people do not get sick at all (asymptomatic infection), some people get a very minor illness, some people get an illness like a bad flu and a small number of people get a very serious illness that can mean they need to go to hospital. Some people who catch COVID-19 will die as a result. There is no way to tell any person for sure what will happen to them if they catch COVID-19. The best that we can do is to give some idea of what the chances are for groups of people of different ages and for people who already have long-term disease.’’ The guideline document also states that People aged 70 years, or more, are extremely medically vulnerable to the effects of Covid-19

I find therefore that the Respondent’s decision to temporarily refuse the applications of those in the 70-85 age range was a genuine and determining occupational requirement at the time of the refusal of the Complainant’s application on 5 November 2020.

3.       Age Related Characteristic:

The third limb of the test requires that the characteristic – not to be in an identified vulnerable

group - must be age related.

I agree with the view of the Adjudication Officer in ADJ-00033891 that “it is a corollary that the relevant temporary exclusion of those in the 70-85 age bracket, based on expert medical advice, was age related”.

4.       Proportionality:

The final limb of the test is that the measure adopted is proportionate, which requires an assessment of whether the measure adopted is appropriate for achieving the objective pursued and does not go beyond what is necessary to achieve it. In this case, the aim pursued by the Respondent was to ensure the health and safety of current and prospective employees. Proportionality must be viewed in the context of the unprecedented pandemic that existed at the time. The Respondent cited section 8 of the Safety, Health and Welfare at Work Act 2005 where it provides that employers are responsible for the safety and health of their employees. Furthermore, I agree with the assertion of the Adjudication Officer in ADJ-00033891 where he stated that “it would have been an absurdity if an agency employed by the HSE in the front-line battle against Covid-19 should themselves, in their employment practice, disregard the medical advice relied upon to combat the infection.

I also agree with the finding in the aforementioned case that the decision by the Respondent to adhere to the expert medical advice and not to recruit the Complainant “was a measure that was necessary to achieve the aim of protection of the health of the Complainant and others, thus it was consonant with the principle of proportionality.”

In light of all of the foregoing, I am satisfied that the Respondent has successfully discharged the

burden of proof required of it to avail of the exclusions provided by section 37(2) of the Employment Equality Acts 1998-2015 and find that the Complainant was therefore not discriminated against by the Respondent.

Although the Complainant established a prima facie case of discrimination on grounds of age in terms of section 6(2) of the Employment Equality Acts 1998-2015 and contrary to section 8 of those Acts, I find that the Respondent successfully discharged the burden of proof required to avail of the exclusions provided by section 37(2) of the Employment Equality Acts 1998-2015 as outlined above.

I therefore find that the Complainant was not discriminated against by the Respondent.