Complainant

Respondent

Parties

Rom  Hyde

CPL Healthcare Limited

Representatives

  Self-Represented.

Sophie Crosbie IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Acts 1998-205

CA-00043093-001

15/03/2021

The Complainant is over 70 years of age and claims that he was discriminated against on the grounds of age regarding access to employment, when his application to become a contact tracer during the Covid-19 pandemic was rejected by the Respondent. The Respondent is an employment agency contracted by the Health Service Executive (HSE). Contact tracing is when health services identify who has been in close contact with someone who has an infection.  The Respondent denies discriminating against the Complainant and asserts that the Complainant has not set out a prima facie case. It further submits that the age restriction on recruiting the Complainant was objectively justified on the basis that it was following public health guidelines.

Preliminary Issue:

The Complainant submitted the case under the Equal Status Act 2000, as amended, which deals with the discrimination in the provision of goods and services, but his written submission was an argument based on access to employment which comes under section 8 of the Employment Equality Act 1998-2015. The Complainant submitted that it was always his intention to bring his case under the Employment Equality Acts and believed he had done so. He applied to have the complaint amended to be heard under the Employment Equality Acts. The Respondent objected and stated its opposition to any amendment of the complaint and stated its position that the Adjudication Officer had no power to do so and should not do so in this instance.

Findings and Conclusion – Preliminary Issue:

Jurisdiction:

Section 41(5)(a) of Workplace Relations Act 2015 imposes the following statutory duties on the Adjudication Officer, who shall:

‘(i) inquire into the complaint or dispute,

(ii) give the parties to the complaint or dispute an opportunity to—

be heard by the adjudication officer, and

present to the adjudication officer any evidence relevant to the complaint or dispute,

(iii) make a decision in relation to the complaint or dispute in accordance with the relevant redress provision, and

(iv) give the parties to the complaint or dispute a copy of that decision in writing.’

In Doyle v Private Residential Tenancies Board [2015] IEHC 724, Baker J held that the duty to inquire entailed ‘the power to characterise or formulate the dispute, to request documentation and information, and to transmit the relevant documentation and information to each party. In doing so it identifies the issues.’

The Superior Courts have held that quasi-judicial decision makers cannot be more ‘rigid’ than the courts In County Louth VEC v. Equality Tribunal &  Brannigan  (Unreported, High Court, 24th July, 2009)McGovern J. commented: ‘If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint… remains the same.’ It follows that a quasi-judicial decision maker cannot approach its jurisdiction in a rigid fashion and must, at the very least, allow as much flexibility as is provided for by the Courts.

The authorities cited above give clear direction on the scope of enquiry for quasi-judicial bodies. The Complainant in this case clearly set out his case in advance based on access to employment. The Respondent equally based its case in written submission on the law surrounding age discrimination in employment. It is long established that the Complaint Form, or any initiating documentation, is not statutory so there is latitude for amendment of complaints, provided that the Respondent is not ‘ambushed’ on the day of the hearing, or otherwise prejudiced.

The question then arises was the Respondent taken by surprise at this hearing, or otherwise prejudiced if there was an   amendment of the complaint to one under the Employment Equality Acts.  I find this was not so. The wording and the associated documentation from the Complainant, as copied to the Respondent, made copious references to his allegation of discrimination on age grounds regarding his application for the role of contact tracer. I conclude that the principles of natural justice are best served by amending the complaint to reflect the true intention of the Complainant; an intention which was made known in advance to the Respondent.  I find that the Respondent was not prejudiced by such an amendment of complaint. I deem this case to have been properly before me for adjudication under section 77 of the Employment Equality Acts 1998-2015 (the Acts).    

The Complainant sent an email to the HSE for a position with the track and trace team. The HSE did not reply but instead the Respondent contacted the Complainant by email on 7 October 2020 advising that “The HSE has an urgent requirement for contact tracers”. On October 2020 the Complainant completed the application form and returned it to the Respondent. The Complainant further complied with the request to complete the National Garda Vetting form.

On 5 November 2020 the Complainant received an email from the Respondent which noted that on his application he had indicated that he was over 70 years of age, but that public health advice at the time directs those in the 70+ age bracket to cocoon. The Respondent stated that he was in a category of high risk that classes him as highly vulnerable. The Respondent further stated that it was not progressing the Complainant’s application for the current recruitment initiative.

 The Complainant challenged the decision of the Respondent on this issue and corresponded by further email where he indicated he felt he was discriminated against because of his age when he considered himself to be healthy and more than capable of doing the job.

On 28 January 2021 the Complainant sent a letter to the Respondent stating that the Respondent had discriminated against him on the grounds of age by not considering his application for a track and trace position and that he would seek redress under the Equality legislation.  The Respondent replied in a letter of 8 February 2021 reiterating its position regarding public health guidelines and further stating that in conjunction with its Occupational Health guidelines it had carefully evaluated the specific risks presented by Covid-19 and that it was unable to sufficiently reduce the level of risk to “very high risk” category workers in accordance with its obligation to provide them with a safe place  to work and therefore could not process his application at this time.

The Complainant submits that discrimination against over 70’s during Covid-19 reached widespread proportions and contends that medical professionals who spent all their lives administering medical services to patients were excluded from giving Covid-19 vaccines to the general public because they had crossed the 70-year threshold.

The Complainant contends that while age is calculated on a chronological basis, studies have shown that it is more important to judge a person on their biological age. He contends that he has the fitness, health and capability to carry out the task of Contact Tracer.

The Complainant submits that he has established a prima facie case of age discrimination based on European Directives and the Employment Equality Acts which the Respondent does not satisfactorily rebut.

 On 5 November 2020 the Respondent advised the Complainant, via email, that his application for the position of Contact Tracer 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. The track and trace team did not operate remotely at that time but were in on-site units.  The Respondent submits that progressing the Complainant’s application at that time would be contrary to public health advice. 

On 8 February 2021, in response to the Complainant’s letter alleging discrimination, the Respondent advised the Complainant by letter that in line with public health guidance and its own occupational health advice, it could not expose anyone in a “very high risk”, including those over 70 years of age, to the risk of exposure to Covid-19. The Respondent also clarified in the letter that they had investigated whether the role could be undertaken from home but concluded that due to the occupational requirements of the role this option was not possible at the time.

The author of the letter of 8 February 2021, a senior manager with the Respondent, gave evidence on behalf of the Respondent. The Witness also gave evidence that the age threshold applied by the Respondent was selected by Government appointed experts in dealing with infectious disease. She gave further evidence that vulnerable employees as identified in the advice were taken off-site, this included pregnant employees, those with lower immune deficiencies, as well as employees who were over 70 years of age.   

Respondent’s Legal Arguments

The Respondent submits that in accordance with section 85A of the Acts there is a requirement on the Complainant to establish a prima facie case in that he must present, in the first instance, facts from which it can be inferred that he was treated less favourably than another person is, has been, or would be treated based on the age ground cited. The Respondent cites the Labour Court cases of  Melbury v Valpeters EDA/0917  ,Southern Health Board v Teresa Mitchell DEE011, [2001] ELR 201 and Margetts v Graham Anthony & Company Limited EDA 038 which deal with the extent of the evidential burden required. The Respondent argues that the Complainant has failed to establish a prima facie case based on the Labour Court’s interpretation of the law and has merely speculated upon the possibility of its occurrence which is vastly removed from the onus the legislation places upon a complainant.

The Respondent contended that the fundamental reason for not progressing the Complainant’s application was not his age, but a condition attaching to his age i.e.  a person of this age is more vulnerable to infection from the virus and if he/she was to get infected the consequences are potentially significantly more serious compared to someone under this age. The Respondent submits that this is evidenced in the fact that other categories of employees (pregnant employees, employees suffering from a reduce immune system) also had their applications halted.  

The Respondent cites section 37(2) of the Acts where it states that:

 For the purposes of this Part a difference of treatment which is based on a characteristic related to any of the discriminatory grounds (except the gender ground) shall not constitute discrimination where, by reason of the particular occupational activities concerned or of the context in which they are carried out —

(a) the characteristic constitutes a genuine and determining occupational requirement, and

(b) the objective is legitimate and the requirement proportionate.

The Respondent also quoted Article2(5) of the Employment Framework Directive 2000/78 where measures to protect health are without prejudice to the Directive. The Respondent cited two ECJ cases, Peterson (C-341/08) where an age limit was not objectively justified, and Colin Wolf v Stadt Frankfurt am Main (C-229/08) where age limits may be justified on the basis they constitute “genuine occupational requirements”. The Respondent submits that the restriction on over 70s was a temporary measure put in place by the Respondent in response to the state public health restrictions. The Respondent argues that the measures put in place were objectively justified to comply with public health guidelines and to protect the health and safety of both employees and potential employees.  

The issue for decision is whether the Respondent discriminated against the Complainant on grounds of age, in terms of section 6(2) of the Employment Equality Acts, 1998-2015 (the Acts) and contrary to section 8 of those Acts when the Respondent declined to progress his application to become a Contact Tracer during the Covid-19 pandemic. In reaching my decision on this matter I have considered the oral and written arguments made by both parties. There was no conflict in evidence between the parties on the primary facts in this case.

The initial burden of proof is on the Complainant to present facts from which it can be inferred that he was treated less favourably on the age ground cited. Section 85A of the Act states as follows:

(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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Commission to the [Director General] under section 85(1), facts are established by or on behalf of the Commission from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section “discrimination” includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

It provides, in effect, that where facts are established by, or on behalf of, a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The Complainant submits that he has established a prima facie case of discrimination on grounds of age contrary to Acts. In Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how the above section is to be interpreted.:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant 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 of no exceptions to that evidential rule.”

The Respondent submits that the Complainant has not discharged the initial probative burden required of him. The Complainant furnished an email from the Respondent dated 5 November 2020 which states that his application cannot progress because he was over 70 years of age and that the refusal at this stage was due to public health advice.   I am satisfied that the Complainant was excluded from proceeding to the next stage of the process solely based on his age, albeit for reasons of the Respondent which will be considered in detail below.  I therefore find that the Complainant has established a prima facie case of discrimination on grounds of age regarding access to employment and the burden shifts to the respondent to rebut the inference raised.

The Respondents case is that the restrictive temporary measures for the over 70s put in place at that point in time, served a legitimate and proportionate objective based on public health guidelines to protect staff and potential employees.

Article 4(1) of the Council Directive 2000/78/EC of 20 November 2000 (the Framework Directive) establishing a general framework for equal treatment in employment is transposed into Irish law by section 37(2) of the Acts which provides as follows –

 “For the purposes of this Part a difference of treatment which is based on a characteristic related to any of the discriminatory grounds (except the gender ground) shall not constitute discrimination where, by reason of the particular occupational activities concerned or of the context in which they are carried out —

 (a) the characteristic constitutes a genuine and determining occupational requirement, and

 (b)   the objective is legitimate and the requirement proportionate.

 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  Wolf  C-229/08, as opened to me by the Respondent.  I propose to examine the matter against that test. The test set out by the CJEU is as follows –

the objective pursued must be a legitimate aim,

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

 thee characteristic must be age related,

 the requirement must be proportionate.

1. Legitimate Aim:

The Respondent submits that the restriction on age grounds in the instant case was a temporary measure put in place in response to the state public health restrictions at that point in time. The Respondent argued that the measures served a legitimate objective of   protecting the health and safety of 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 occupation activities in question. The characteristic in this case is that the job applicant is not within a grouping which is categorised as high risk of becoming hospitalised and seriously ill if infection occurred.

 A senior manager gave evidence that the restriction came in at a time when Contract Tracers were located on-site. She related how current employees were taken offsite if they fell into this category i.e. pregnant employees, employees who low immunity defences and those who were over 70 years of age. The Respondent submitted that the age threshold applied was selected by experts dealing with infectious diseases. 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 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 of 70-85 years are categorised as high risk of becoming hospitalised and seriously ill if infection occurs.  I find that the measure of temporarily restricting those in the 70-85 age range was a genuine and determining occupational requirement at the time.

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. It is a corollary that the relevant temporary exclusion of those in the 70-85 age bracket, based on verifiable medical advice, was age related.

4. Proportionality:  

The final limb of the test is that the measure adopted is proportionate. It is well established that this 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. The legitimate aim pursued by the Respondent was to ensure the health and safety of current and prospective employees. The measure was temporary, and the evidence given by the Respondent was that the restriction was eventually lifted when it when vaccines became available.

 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. The Complainant, in cross examination, accepted that the health and safety of fellow employees may trump any perceived discrimination in such an eventuality. Furthermore, I opine 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. The Complainant gave evidence that though he was over 70 in age, the medical advice from his practitioner was that he was fit and healthy. The Complainant in this case can be lauded for his enthusiasm and willingness in pursuing work in the public interest at a very precarious time for society, however, the incontrovertible and widely accepted expert medical advice at the time of his job application was that those over 70 and in other groups were deemed medically vulnerable and were advised to stay at home, with minimal social contact. I am satisfied that the adherence to such advice by the Respondent, in not recruiting the Complainant based on his age, 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.

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

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 when his application for selection as a Contact Tracer with the Respondent was rejected on the grounds of age. However, the Respondent 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 therefore I find that the Complainant was not discriminated against by the Respondent.   

The Employment Equality Acts 1998-2015, Covid-19, Age Ground, Amendment of Complaint.