Complainant

Respondent

Parties

Bridget  Clarke

Dublin South Mabs.

Complainant

Respondent

Representatives

O'Mara Geraghty McCourt. Ms. Rosalynn McVeigh, B.L.

 RSM Ireland. Mr Mark Curran, B. L.

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-00036939-001

16/06/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00036940-001

16/06/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00038338-001

23/06/2020

The complainant submits that she was discriminated against on age grounds when she was asked to retire. The complainant submitted a separate, additional complaint on 23 June alleging that she had been discriminatorily constructively dismissed contrary to Section 8 of the Employment Equality Acts 1998-2015 (The Acts.

She commenced employment with the respondent on 21 February 1994 as a coordinator of services. Her gross weekly salary in 2020 was €1128.

The last act of discrimination occurred on the 5 May. The last act of discrimination in respect of the discriminatory constructive dismissal occurred on 17 June 2020.

She submitted her complaints to the WRC on 16 and 23 June 2020.

CA-00036939-001. Complaint under section 77 of the Employment Equality Act, 1998.

The complainant submits that she was forcibly retired and harassed on age grounds contrary to the provisions of the Employment Equality Acts 1998-2015 (The Acts).

In 2018, the service was restructured, and the 52 Money Advice and Budgeting Service (MABS) were divided into eight regions. The local management committees were disbanded and replaced with regional management committees who became the complainant’s employer. The complainant transferred to her new employer, Dublin South MABS, under her existing terms and conditions of employment.

Witness 1; the complainant gave evidence under affirmation.

The complainant started with the respondent as a coordinator in 1994 offering money advice services to the public. Her work involved going to schools.

She did not have a contract of employment on appointment but received one in 1997, drawn up by the then management committee. It contained no retirement age.

After the restructuring, there was no change to contracts at that point. The staff were advised that TUPE rules and regulations would apply in relation to all conditions of employment. The only change would be the reporting arrangements; she would now report to a new management committee.

On 10 September 2018, the complainant had a meeting with the Regional Manager, who stated “you are retiring on the 17 November because you are 65” to which the complainant responded by acknowledging her age but advising that she would not be retiring. The Regional Manager asked the complainant how long she thought she would remain in employment to which the complainant, by this stage under pressure, said she would retire in November 2019. The Regional Manager stated that she would discuss this development with the HR committee. A few days later the complainant was told she would be given a new contract. The complainant advised that she did not require a new contract and that other staff members had remained on beyond 65 years of age. She told the Regional Manager that she felt that she was being pushed out. On 5 October the complainant emailed the Regional Manager to state that she planned to continue to work on and that she would provide her with notice as per her contract when the time arose. The complainant did not sign the new contract, containing inferior pension terms and benefits, when offered one in September 2018. The Regional Manager also sent her the circular letter dealing with public service retirement dates.

The complainant went on sick leave on 6 August 2019. She telephoned the Staff Liaison Officer, (SLO), in November 2019 to inform him that she would not be retiring in November 2019 and that she would discuss the matter when confirmed medically fit, which would probably be in February 2020. The SLO was a volunteer Board member who operated as a link between the staff and the Board.

In November 2019, the Regional Manager phoned the complainant to say that she could not get funding for a replacement for her. She informed the complainant that she had been surprised and shocked to learn from the SLO that she would not be retiring. The complainant states that she was shaken after that call.

Having been confirmed medically fit, the complainant returned to work on 11 February 2020. She had a back to work interview with the Regional Manager on 12 February 2020, where they identified outstanding leave entitlements. The Regional Manager told her that she was now employed on a new contract and that she “would have to go “. She told the complainant that her job was done when she gave her the new contract. The complainant was pressed to provide the date of her intended retirement. The complainant replied that she would remain until she was 70. She asked the Regional Manager if she planned to sack the complainant to which the regional manager stated that she had not made up her mind yet.

On 5 May 2020, the complainant noticed that her pension contributions had not been deducted from her salary. The complainant emailed the regional manager on the 11 May 2020 to try and get clarity about what needed to be done to bring her pension contributions up to date but got no response. She was told that this was because she had signed an agreement for a PRSA in June 2018, which contained a retirement date of November 2019. Again, the Regional Director emailed her asking when she was going to retire to which the complainant responded that she did not know.

From Sept 2018 until the complainant left in June 2020, the emails kept coming to get her to give notice. The emails between the respondent and the pension provider only came to light after she had resigned.

 CA-00038338-001. Complaint under section 77 of the Employment Equality Act, 1998

This was separate, additional complaint submitted on 23 June alleging that the complainant had been discriminatorily constructively dismissed on 17 June 2020 contrary to Section 8 of the Acts.

The complainant’s experience of discrimination and harassment left her with no choice but to resign. She had lost all confidence in the respondent’s willingness to address her concerns.

Cross examination of the complainant.

The complainant confirmed that she was aware of the existence of the staff handbook on the intranet but had never had to consult it. She viewed the retirement age of 65, contained in the Staff Handbook, as non- mandatory.

The complainant accepted that she had received her lump sum, normally associated with retirement, in 2017 to assist a family member.

The complainant accepted that she gave the retirement age of 66 on her PRSA application form, but that she did this in a hurry; it was permissible to retire at 70. She just chose an age.

She confirmed that she was aware that other employees had retired at 65.

The respondent asked her why she states she was surprised and shocked at being asked to retire at 65 in circumstances where other staff had retired at 65, a retirement age of 65 is contained in the handbook. She stated they may have been pressurised to retire at 65. The complainant states that while the meeting with the Regional Manager in September 2018 was relaxed, she was also pressurised about retiring.

The complainant explained that her email to the Regional Manager of 12/9/2018, stating  that she intends to retire at 66 (which accords with her PRSA application form), was because she would have done anything to stay on side with the Regional Manager.

The HR manager should have met her to discuss retirement after 26 years there.

The complainant accepted that when she told the Regional Manager that she was continuing, the Regional Manager had her pension deductions reinstated.

Referring to the complainant’s evidence that the SLO said to her that she could pick her date of retirement, the complainant stated that she was out on sick leave from August 2019- February 2020.

Harassment on grounds of age.

Concerning the complainant’s description of the emails as relentless, and her complaint of harassment, the respondent’s barrister stated that there was an email in July 2018, October 2018, and July 2019. The complainant stated that she could not confirm that there was no contact from the Regional Manager between October 2018- July 2019.

To the question as to whether she had made a complaint of harassment, the complainant stated that she had emailed the SLO about the regional manager and repeated this email in February 2020. She received no response. She had an informal arrangement to meet the SLO in February 2020. He did not show up. Despite the respondent having nothing on record, she did make a complaint to the SLO and to the chair.

The complainant made a complaint in January 2020 about data access; she accepts that she made no mention of harassment.

CA-00038338-001. Complaint under section 77 of the Employment Equality Act, 1998.

 Constructive discriminatory dismissal.

The complainant stated that when there was a no show by the SLO in February to deal with her complaint of harassment she felt that she had no option but to resign.

To the point that she chose to resign after enduring two years of alleged harassment, the complainant said the harassment was being asked to sign a new contract.  No one from the management committee contacted her to provide support.

In relation to her failure to use the grievance procedures, the complainant was told that SLO was the first port of call for a complaint about the Regional Manager. He did not show up to the February 2020 meeting, then Covid 19 intervened.  She tried to do it informally. The complainant confirmed that she emailed the regional manager on 12/9/2018 telling her that she intended to retire in November 2019, but it was an intention; an intention can change. It was not confirmation.

The complainant attended a retirement course in May 2019.

Legal Authorities.

Concerning the basis for the respondent’s use of guidelines governing retirements for public servants, the complainant relies upon a Labour Court Recommendation, LCR19283 in which the respondent argued that as MABS employees were not public servants, public service pension benefits should not apply to them.

The complainant relied upon a number of decisions:

Anne Roper -v- Raidió Teilifís Éireann, ADJ-00019084, where the refusal of a request made at 65 years of age to work for a further 18 months following an internal grievance procedure led to a finding of discrimination against the employer.  The adjudicator found that the means used to achieve a more balanced workforce, age- wise, must be appropriate and should go no further than is necessary.  That was lacking in that situation as it is in the instant case.

Connaught Airport Development Limited T/A Ireland West Airport- Knock v John Glavey, EDA1710, where Mr Glavey, whose contract did not specify a retirement date ‘s contract was found to have been subjected to discriminatory treatment on the age ground when his former employer dismissed him.

Quigley v Health Service Executive [2017] IEHC 654 where the High Court granted an interlocutory injunction to restrain the HSE from dismissing an employee who contended that he was not contractually required to retire at age 65.   

John O’Brien V PPI Adhesive Plastics, ADJ 00009914. This complainant had no retirement date, was retired at 66 against his will, while other employees remained on after 66. His complaint of discrimination was upheld.

The complainant contends that these decisions underscore the discriminatory nature of the treatment to which she was subjected.

CA-00036939-001. Complaint under section 77 of the Employment Equality Act, 1998.

The respondent denies that the complainant was discriminated against or harassed on the age grounds as contended in this complaint. The respondent has no record of any complaint of harassment or discrimination from the complainant before the submission of the complaint to the WRC.

Witness 2: Regional Manager gave evidence under affirmation.

She has held this role since 2018. She was the complainant’s line manager.

Prior to 2018, she never discussed retirement with the complainant.

The witness was tasked with the consolidation of the 52 different MABS centres into eight centres. As part of this, she compiled a staff list and noticed the complainant’s age. Other staff in Dublin South MABS had retired at 65. Her purpose in raising retirement with the complainant was succession planning and staffing needs.  The complainant told the witness at the meeting on 10 September that she did not intend to retire on her 65th birthday and emailed her on the 12 September to this effect. The witness understood from that email that she intended to retire at 66 and was seeking an extension. She cannot recall if she stated that she would retire at 66.

Before the restructuring, other committees had assumed a HR function. After the restructuring, the Board devolved the operational end of HR to the witness as the HR functions which had been previously assigned to these former committees and persons were not prescribed within the service agreement which they had with the funder.

The witness advised the complainant that she would send her a fixed term contract. She had gone to her HR subcommittee with this proposal; she had also gone to the HR Department in Citizens Information Board (CIB), their funder, who advised a fixed term contract for a year. She explained succession planning and the desirability of a balanced age structures to the complainant. The witness was very happy for the complainant to remain on for another year. She was great employee, very good with staff. On 12 Sept she confirmed that she would retire in November 2019.

On 20 Sept the witness wrote to the complainant on the direction of the respondent HR committee and CIB HR department, asking her to indicate her agreement to a fixed term contract which would take here up to 66 years of age, the state pension age. She did this in line with the recommendations which Minister O’Donoghue issued to the public service. She understood that the complainant was happy to retire on her 66th birthday.

The SLO contacted the witness on 18 or 19 November 2019 to state that he had discussed the matter of retirement with the witness, and she had told him that she had no intention of retiring and that she did not wish to discuss it until after her return from sick leave.

The witness was not in contact with the complainant after that until February 2020 when she had a return-to-work meeting with the complainant as is the norm. There was an Occupational Health report and they discussed attendance and the Doctor’s recommendations. She has no recollection of asking the complainant about retirement at that meeting

 As to why she formed the view that the complainant would retire, the complainant went on a retirement course in May2019. From Oct 2018 – July /August 2019 the complainant never raised any the issue of retirement with the witness.

The next contact was in May 2020 when the witness investigated the cessation of the complainant’s salary deductions into the PRSA pension for her. She had stated in the PRSA application form in June 2018 that she wanted to retire at 66. She facilitated the reinstatement of the deductions from the complainant’s salary and into the fund. The complainant incurred no loss in terms of accrued pension benefits and salary during the period September 2018 – June 2020.

The complainant resigned in June. She made no contact with the witness between February and June 2020 concerning retirement. She never raised age discrimination or harassment on the grounds of age with the witness.

Cross examination of the witness.

She does not recall asking the complainant about retirement at the meeting of 12 February 2020

The witness advised the salary department on 18 November 2019 to cease all contributions to the complainant’s PRSA fund as her chosen date of retirement, the 17 November 2019, had passed.

The witness accepted that this instruction was solely based on the complainant’s PRSA application form, completed in June 2018. She cannot recall if the SLO had told her of the complainant’s decision not to retire on the 19 November 2019 before she instructed the salary department to cease all deductions.

She does not recall making the remarks attributed to her at the 12 February 2020 meeting.

The witness declined to comment on the correspondence between board members, submitted in evidence, showing how they could deal with retirement for employees over 65 while avoiding liability for findings against them of discriminatory treatment. The authors of these statements did not attend the hearing. This information was not known to the complainant at the time at which she submitted her complaints to the WRC in June 2020.

Legal Authorities.

CA-00038338-001. Complaint under section 77 of the Employment Equality Act, 1998.

Concerning the complaints of discrimination and harassment on age, the respondent relies upon section 6(3)(c) of the Acts which states

“Offering a fixed term contract to a person over the compulsory retirement age for that employment or to a particular class or description of employees in that employment shall not be taken as constituting discrimination on the age ground if

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

(b)         (b) the means of achieving that aim are proportionate and necessary”

The accepted age of retirement in the respondent’s workplace was 65.

The respondent relies on  A Senior Staff Nurse v A Nursing Home, ADJ27325 and  to the three tier test set out in that case, and while acknowledging that the complainant comes within the protected ground of age, and age was the reason for the respondent’s engagement with her retirement, she cannot meet the second limb of the test which is that she was subject to less favourable treatment because of her age and therefore cannot satisfy the requirement to raise a prima facie case of discrimination. Also, with reference to ADJ27325, the respondent notices that the Adjudicator stated that the discrimination crystalised when her employment was terminated on 28 October 2019 unlike the complainant whose employment was not terminated by the respondent.

The respondent also relies on the WRC Code of Practice on Longer Working which was followed by the respondent.

The respondent also points to the applicability of Madarassy v Nomura International Plc (2007) IRLR 246. The Court of Appeal for England and Wales, dealing with the corresponding UK statutory provisions regarding the burden of proof held that it is necessary to examine the evidence to determine if the actions complained of would in the absence of an adequate explanation constitute unlawful discrimination. In the instant complaint, the actions complained of were brought about by the complaint’s declared intention to retire in November 2019 and could not be held to be discriminatory.

Complaint of harassment.

The alleged harassment of the complainant by the respondent is encapsulated in 3 telephone calls, in November 2019, , 12 February concerning a back to work meeting after sick leave and 5 May 2020. This pattern does not match the definition of harassment found in the Acts.  She has not made out her complaint. The complainant at no stage activated the Dignity at Work Policy. The first mention of harassment came in the complainant’s complaint form to the WRC.

Her complaint cannot succeed.

CA-00038338-001 Complaint under section 77 of the Employment Equality Act, 1998

Discriminatory constructive dismissal.

The respondent denies that the complainant was discriminatorily constructively dismissed. She resigned.

The respondent relies on A Worker (Mr O) v An Employer, (2005) ELR 13E2 where the Labour Court held that the authorities relating to complaints under the Unfair Dismissal Acts were applicable to complaints of discriminatory constructive dismissals under the Employment Equality Acts. The respondent therefore relies on Cederglade Limited V Tina Hliban, UDD 1843 which held that the complaint of c constructive dismissal has to be considered in the context of the “contract test” as set out in Western Excavating (ECC) Ltd v Sharp(1978 WLR) and which requires the complainant to demonstrate that the employer has repudiated the contract and she is thus entitled to treat herself  as discharged from any further performance of the contract. The retirement was never imposed on the complainant and therefore the contract was not repudiated. In addition, or in the alternative, the complainant must demonstrate that the conduct of the employer was so unreasonable as to leave her with no choice other than resignation. This is not the case. Furthermore, the complainant never used the grievance procedures, a requirement set out in Conway v Ulster Bank UDA 474/1981 and in multiple, later decisions.

She has failed to meet either test. Her complaint cannot succeed.

CA-00036939-001. Complaint under section 77 of the Employment Equality Act, 1998.

I am required to decide upon the following matters:

1.Whether the complainant was subjected to discriminatory treatment on the grounds of age in relation to her conditions of employment.

2.Whether the complainant was subjected to harassment pursuant to S.14A of the Acts

Discriminatory treatment on the grounds of age in relation to her conditions of employment.

The issue for decision under this heading is whether the Respondent in attempting to manage the complainant’s retirement at age 65 where her contract identified no retirement date, discriminated against her on grounds of age in terms of Section 6 and in contravention of Section 8 of the Acts?

Scope of the complaint: admissibility of all instances of alleged discrimination.

The complaint of discrimination and harassment was lodged with the WRC on the 16/6/2020. Section 77(5)(a) of the Acts dictates that the only admissible incidents grounding the complaint of discrimination are those that occurred in the six months prior to the submission of the complaint, that period being the 17 December 2019 to 16 June 2020. However, in Hurley v County Cork VEC (EDA 1124), the Labour Court noted that Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation and held that

 “Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum.”

 I find that the approaches to the complainant which extended from September 2018 to May 2020 all concerned the respondent’s eagerness for her to retire. But while the respondent’s engagements with the complainant which she found to be discriminatory are connected, the complainant must, in addition, satisfy a further requirement as  set out in Hurley and in County Dublin VEC v. Dodo EDA1327/2013, and which held that a discriminatory act must have occurred within the limitation period in order for those acts occurring outside of the statutory period to be admissible. Therefore, I must decide if the acts of alleged discrimination occurring between 17 December 2019 and 16 May 2020 constitute discrimination on the grounds of age.

Relevant Law.

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where

 “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) ...”.

 Section 6(2)(f) of the Acts defines the discriminatory ground of age as

” That they are of different ages but subject to section (3) as the age ground.”

 The first obligation which the complainant must meet is compliance with section 85A of the Acts 1998-2015 which lays the onus of proof with the complainant to establish a prima face case of discriminatory treatment contrary to the Acts. Section 85A (1) of the Acts states that

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

In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12 E.L.R. 201, the Labour Court concluded that

“a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”

The complainant must discharge this evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her age. If she does not, her case cannot succeed.

In order to achieve compliance with section 85(A)- the first step- she must satisfy three elements of a test laid out in In Minaguchi v Mr. Ray Byrne, T/A Wineport Lakeshore Restaurant DEC-E/2002/20. The 3 requirements necessary to establish that a prima facie case exists are:

- That s/he is covered by the relevant discriminatory ground(s);

- That s/he has been subjected to specific treatments; and

- That this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.

Applying the above test, the complainant is covered by the age ground in that she is asserting a difference in treatment relative to persons below the age of 65.

Specific treatment complained of within the statutory time limits.

The back to work meeting on the 12 February 2020, after the complainant’s return from sick leave took place in the context of the respondent Regional Manager’s knowledge of the complainant’s revised position not to retire in November 2019, to work into the future and to provide requisite notice. In November 2019, the complainant had informed a volunteer board member of her revised position not to retire in November 2019. It is accepted that this volunteer member, the SLO, did convey that information to the respondent Regional Manager. There is nothing to indicate that this board member advised the regional manager to desist from further enquiries about the complainant’s intended retirement date, even though it was not contested that said member, not in attendance at the hearing, told her she could pick her own date. There was no clarity as to what that person’s responsibilities or the board’s responsibility were when supplied with the complainant’s revised retirement date. The channels of communication within the respondent’s organisation were unclear.

At this meeting on the 12 February 2020, the respondent asked her when she was going to retire and stated that she was out of contract as her contract had expired the previous November. This clearly implies that the respondent expected the complainant to retire at 66.

The statement attributed to the Regional Director that the complainant “would have to go” is contested. The complainant told the Regional Manager that she intended to work until 70. The complainant states that she asked the Regional Manager at the meeting of the 12 February if she was going to be sacked to which she replied that she “did not know”. This is contested evidence.

The second instance of the specific treatment occurred on the 5 May 2020, when the respondent, informed in February 2020 of the complainant’s intention to continue working until 70, asked the complainant, then 66 years of age for her date of retirement. Again, the complainant told her that she would retire on her 70th birthday.

Given that the complainant is covered by the protected ground of age, coupled with the fact that the treatment described raises an inference of discrimination, the complainant had raised a prima facie case of discrimination and the burden of proof must shift to the respondent to demonstrate that the treatment is unconnected with her age.

Rebuttal of discrimination.

The respondent’s defence is that they were engaged in succession planning, prompted by the complainant’s statement which she states was given under pressure in October 2018 of her intended retirement at age 66. But the premise that she was obliged to retire at 66, a premise which informed the respondent’s approaches to the complainant over the period September 2018  - May 2020 was tenuous; in November 2018 she had chosen not to sign the one year fixed term contract, its end date, of  November 2019, having been decided by the respondent: the respondent’s reliance on public sector provisions concerning a compulsory retirement age of 65 was unconvincing in view of the fact that in LCR19283,in an unconnected matter, the respondent had stated that their employees were not public service employees; in November 2019 the  complainant advised  that she would not be retiring at 66 and planned to continue with her own contract and provide the required notice. While it is the case that she provided a retirement date of 66 on a PRSA application form in 2018, any room for doubt about her plan to remain with the respondent until 70 years of age had been dispelled by February 2020.

The essence of the respondent’s case is that the specific treatment complained of was not discriminatory and while she can satisfy the first and third limb of the test set out in A Senior Staff Nurse v A Nursing Home, ADJ27325, she cannot claim that the specific treatment was discriminatory. In making this argument the respondent points to the fact that the authorities cited in support of the complainant all entail the termination of employment by the employer or a refusal to permit the employee to work for a further year until they had reached the age of 66. This did not occur in the instant case. But the statutory provision prohibits less favourable treatment on the protected grounds and while the scale or degree of discrimination may differ, the inescapable conclusion is that the pressure exerted on the complainant to submit a date of retirement short of her stated aim of 70 was less favourable treatment than that afforded to colleagues below the age of 65

So, succession planning, the stated reason for seeking her retirement date in February and May 2020, 3.5 years out from the retirement date identified by the complainant is unconvincing. Employees of a younger age were not required to provide a retirement age 3.5 years in advance of retirement. The age of younger colleagues would not be used to challenge their right to remain on in employment as happened to the complainant. Their right to continue on in employment would be respected; they were not subject to suggestions that “their time was up.” The complainant was capable and wanted to remain in her role.  There was no evidence that any of these matters had been considered in discussions with the complainant and the objective justification of succession planning was unsupported by details as to how this would benefit the workforce, provide a more balanced age structure and why the complainant’s retirement was necessary and/or an appropriate means to achieve this goal. No reason other than her age was offered by the respondent for the decision to treat her differently to other employees.

For the above reasons, I find the respondent has failed to rebut the inference. Accordingly. I find that the respondent did discriminate against the complainant on grounds of age in terms of section 6 (2)(f) and contrary to section 8 of the Acts.

Incidents of alleged discrimination outside of the statutory period.

The first instance cited was the statement to the complainant that she would have to retire, the representation that 65 was the age of retirement and the offer of a fixed term contract in September 2018. S.I.600 /2017 Industrial Relations Act, 1990 (Code of Practice on Longer Working) states

“Where no contractual retirement date exists, it is reasonable as part of workforce planning for an employer to raise and discuss with the employee, their retirement intentions” .

Hence, the absence of a retirement age in a contract does not bar the respondent from discussing retirement. The regional manager was the person tasked with staff planning.

The offer of a one- year fixed term contract was made in the context of the complainant having stated that she would retire one year on in November 2019. It contained objective grounds within the contract. Section 6(3) goes on to state that

“(c) Offering a fixed term contract to a person over the compulsory retirement age for that employment or to a particular class or description of employees in that employment shall not be taken as constituting discrimination on the age ground if—

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

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

In the specific circumstances obtaining, where there was no mandatory retirement age, where the complainant wished to and could have continued on her existing contract in accordance with her  declared intention to retire a year later at 66 without the need for her to be corralled into retirement one year on the expiration of the fixed term contract, and in the absence of any detail as to how this would have enabled the respondent to meet their goals  by means that were appropriate and necessary, I find this to be less favourable treatment than  that dispensed to colleagues below 65 years of age and younger.   No evidence was provided of fixed term contracts being offered to younger employees nearing their retirement. No such controls were deemed necessary.

 I accept that the evidence submitted of behind-the-scenes manoeuvres between board members, devoid of any consideration of how the complainant’s desire to remain on in employment might be facilitated, and designed to absolve them of any culpability for potential discriminatory practices, demonstrated a lack of transparency. These emails only surfaced after the complainant had resigned.

 The second incident was the instruction on the 18 November 2019 to the salary department to cease making any deductions from the complainant’s salary towards the complainant’s PRSA. The complainant had indicated on her PRSA application form that she intended to retire on the 17 November 2019 and had not advised the respondent of a change. The respondent Regional Manager could not recall the date on which the SLO notified her of the complainant’s decision to remain in employment and could not recall if she was aware of this fact before she instructed the respondent’s salary department to cease the PRSA deductions from the complainant’s salary. When the complainant discovered this in May 2020 and raised the matter, the respondent ensured that the contributions to the PRSA were restored.

On the basis of the evidence, I uphold the complaint of discrimination on grounds of age based on the offer of a one-year fixed term contract in September 2018 and the incidents of the 5 February and the 5 May 2020. I decide that the respondent should pay the complainant the sum of €20,000 which represents a little over 4 months’ salary for the effects of the discrimination. In making this award, I am mindful of the decisions to which I have been referred but which involved a greater financial loss for those complainants owing to the decisions of their employers.

Complaint of harassment on age grounds.

The next issue for consideration is whether the complainant was subjected to harassment pursuant to Section 14A of the Acts. In this regard, I am required to consider if the incidents which the complainant submits as evidence of harassment, are of sufficient significance to establish a prima facie case of harassment.

Section 14(A) of the Acts broadly provide that harassment is any

 “Unwanted conduct related to any of the discriminatory grounds”.

This unwanted conduct must have the

 “Purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person” and may “consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”

Instances of alleged harassment on grounds of age.

 The request for a retirement date in September 2018. I find it is an overstatement for the complainant to maintain that she was shocked at this question given that it was commonplace for employees to retire at 65, even those who did not have a contractual retirement date.

The telephone call from the respondent in late November 2019 telling the complainant that she was shocked that the complainant was not going to retire. But up until November 2019, the complainant had not reversed her decision to retire in November 2019, so the expression of shock, if melodramatic, on the Regional, Manager’s part, can be attributed to this new information.

The next instance of alleged harassment occurred in the back to work meeting in February 2020 when the complainant asked the Regional Manager if she would be sacked to which the response was “ I don’t know”. The Regional Manager denies that she made this statement.

Aside from the contested nature of these statements of the 12 February 2020, the fact is that the respondent has a Dignity at Work Policy which incorporates the procedure to be followed when a complaint of harassment is to be made. This offers the employee the option of putting the complaint to the line manager or the Staff Liaison Officer. If the complainant does not wish to use the informal procedure or the complaint is not resolved by that procedure or the outcome is unsatisfactory, a formal complaint may be made. The procedure that will be adopted is as follows:

1. The complainant should make the formal complaint in the first instance to the HR subcommittee of the Board of Directors.

The complainant ‘s evidence is that she did take the initial steps, prescribed in the policy, and made an initial contact with the SLO on 14 November 2019. But her evidence also was that she postponed any discussion of retirement or any other matter until after her scheduled return from sick leave in February 2020. She had a meeting scheduled with him for February 2020 and he failed to show up. The complainant failed to provide evidence that the respondent was on notice of a complaint of harassment as opposed to a sense of unhappiness about the conduct of her line manager. She did not contest the respondent’s evidence that she made no mention of harassment or discrimination in any representation oral or written to the respondent. Aside from this point, the complainant’s contacts with the SLO in November preceded the remarks of the 12 February which she attributes to the Manager.

The telephone conversation with the respondent on the 5 may

 The Labour Court stated in A school v A Worker, EDA122 that

“It seems to the Court that as a matter of principle the complainant cannot rely on the same facts to obtain redress under more than one head of liability under the Acts”

The court went on to state that they would treat the complaint of harassment as if pleaded in the alternative.  The conversation of the 5 May has been addressed and adjudicated upon in then complaint of discrimination.

Apart from the shortage of evidence illustrating that the complainant used the procedures to make a complaint, and which constitutes a defence for the respondent under section 14A (2) of the Acts, I do not find that these approaches to the complainant were of sufficient significance to establish a prima facie case of harassment. I consider that the conduct complained of by the complainant falls short of violating her “...dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment…”.

I do not uphold the complaint that she was harassed on the grounds of her age contrary to section 14A of the Acts.

CA-00038338-001. Complaint under section 77 of the Employment Equality Act, 1998.

The complainant submits that she was discriminatorily constructively dismissed contrary to Section 8 of the Acts on the 17 June 2020.

The compliant submitted her letter of resignation to on the 17 June 2020 after a period of 21 months during which she was pressed for her date of retirement on five occasions.

Section 2 of the Acts defines dismissal as follows:

“dismissal” includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “dismissed” shall be construed accordingly”.

An Employer -v- A Worker (Mr. O No. 2) , the Labour Court addressed the issue of constructive dismissal under Employment Equality Acts. It noted that the definition was practically the same as the definition of "dismissal" contained in the Unfair Dismissals Acts and held that the tests for constructive dismissal developed under that legislation i.e., the "contract" test and the "reasonableness" test were also the applicable tests under the Employment Equality legislation.

In justifying her decision to terminate her employment the complainant will have to demonstrate that the circumstances of her dismissal met the tests as set out by Lord denning, MR in Western Excavating (ECC) v Sharp (1978) ICR 221 and described thus:

 “conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract then the employee is entitled to treat himself discharged from any further performance”.

and the reasonable test which was expressed as

“an employer who conducts himself or his affairs so unreasonably that the employee cannot be fairly be expected to put up with it any longer, the employee is justified in leaving”

The complainant did not make out a case that there had been a breach of contract.

The complainant’s case was based on the discriminatory treatment and the harassment of the employer on age grounds.

The question which I must decide upon is whether, because of the conduct of the respondent, the complainant was entitled to terminate her contract of employment.

I have found that she was subject to discriminatory treatment on age grounds. Whether that validates her resignation is subject to another set of rules; a different threshold or burden of proof applies in the case of a constructive dismissal complaint. I have not upheld the complainant’s complaint of harassment on age grounds. The reasonableness of the employee’s conduct requires to be examined in a complaint of constructive dismissal. The bar in determining constructive dismissal is set very high as stated in McCormack v Dunnes Stores, UD1421/2008, where the EAT stated:

“The notion places a high burden of proof on an employee to demonstrate that he or she had acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve his/her grievance with his/her employer”

The requirement to use the agreed procedures in cases of constructive was followed in Terminal Four Solutions v Rahman, UD 898/2011 and has been followed in many other decisions.

Was the behaviour of the respondent so intolerable that the complaint could not be expected to put up with it one minute longer. The complainant did put up with the respondent’s behaviour from February to June 2020. She raised no grievance during that period. The fact that she was discriminated against on age grounds does not exempt her from the obligation to use internal procedures, a requirement which is absent in making a complaint of discrimination to the WRC.

 It is telling that the complainant kept notes of meetings, copies of emails and a data access request, but omitted to keep a copy of the email which she states that she sent to the SLO about a meeting. Neither does her submission refer to her having exercised the grievance procedure. In these circumstances, I must conclude that the complainant did not activate the grievance procedure.  The complainant’s experience during the period February to June 2020 evidenced little conflict, little in the way of what could be described as intimidating or hostile attitudes towards her which might have inhibited her from activating the grievance procedure in attempt to remedy her concerns. The complainant felt sufficiently comfortable to raise the issue of her pension contributions during this period.

I do not find that the respondent’s behaviour reached a level which was so intolerable that the complainant’s resignation was justified.

I find that the complainant has failed to meet the two tests, namely the “contract test” and the “reasonableness test”, set out in Western Excavating (ECC) v Sharp (1978) ICR 221, and which a complainant must meet in order to succeed in a complaint of discriminatory constructive dismissal.

Based on the oral and written evidence and for the reasons cited, I find that the complainant has failed to discharge the onus of proof required in a case of discriminatory constructive dismissal.

I do not find this complaint to be well founded.

CA-00036939-001. Complaint under section 77 of the Employment Equality Act, 1998.

I decide that the respondent did discriminate against the complainant on grounds of age in terms of Section 6(2)(f) and in contravention of Section 8 of the Acts.  I decide that the respondent should pay the complainant the sum of €20,000 which represents a little over 4 months’ salary for the effects of the discrimination.

I find that the complainant was not harassed by the Respondent contrary to Section 14A of the Acts.

CA-00038338-001. Complaint under section 77 of the Employment Equality Act, 1998.

I find that the complainant was not discriminatorily constructively dismissed contrary to Section 8 of the Acts.

Complainant

Respondent

Parties

Bridget  Clarke

Dublin South Mabs

Complainant

Respondent

Representatives

O'Mara Geraghty McCourt. Ms. Katherine McVeigh, B.L.

 RSM Ireland. Mr Mark Curran, B. L.

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-00036939-001

16/06/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00036940-001

16/06/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00038338-001

23/06/2020

The complainant submits that she was discriminated against on age grounds when she was asked to retire. The complainant submitted a separate, additional complaint on 23 June alleging that she had been discriminatorily constructively dismissed contrary to Section 8 of the Employment Equality Acts 1998-2015 (The Acts.

She commenced employment with the respondent on 21 February 1994 as a coordinator of services. Her gross weekly salary in 2020 was €1128.

The last act of discrimination occurred on the 5 May. The last act of discrimination in respect of the discriminatory constructive dismissal occurred on 17 June 2020.

She submitted her complaints to the WRC on 16 and 23 June 2020.

CA-00036939-001. Complaint under section 77 of the Employment Equality Act, 1998.

The complainant submits that she was forcibly retired and harassed on age grounds contrary to the provisions of the Employment Equality Acts 1998-2015 (The Acts).

In 2018, the service was restructured, and the 52 Money Advice and Budgeting Service (MABS) were divided into eight regions. The local management committees were disbanded and replaced with regional management committees who became the complainant’s employer. The complainant transferred to her new employer, Dublin South MABS, under her existing terms and conditions of employment.

Witness 1; the complainant gave evidence under affirmation.

The complainant started with the respondent as a coordinator in 1994 offering money advice services to the public. Her work involved going to schools.

She did not have a contract of employment on appointment but received one in 1997, drawn up by the then management committee. It contained no retirement age.

After the restructuring, there was no change to contracts at that point. The staff were advised that TUPE rules and regulations would apply in relation to all conditions of employment. The only change would be the reporting arrangements; she would now report to a new management committee.

On 10 September 2018, the complainant had a meeting with the Regional Manager, who stated “you are retiring on the 17 November because you are 65” to which the complainant responded by acknowledging her age but advising that she would not be retiring. The Regional Manager asked the complainant how long she thought she would remain in employment to which the complainant, by this stage under pressure, said she would retire in November 2019. The Regional Manager stated that she would discuss this development with the HR committee. A few days later the complainant was told she would be given a new contract. The complainant advised that she did not require a new contract and that other staff members had remained on beyond 65 years of age. She told the Regional Manager that she felt that she was being pushed out. On 5 October the complainant emailed the Regional Manager to state that she planned to continue to work on and that she would provide her with notice as per her contract when the time arose. The complainant did not sign the new contract, containing inferior pension terms and benefits, when offered one in September 2018. The Regional Manager also sent her the circular letter dealing with public service retirement dates.

The complainant went on sick leave on 6 August 2019. She telephoned the Staff Liaison Officer, (SLO), in November 2019 to inform him that she would not be retiring in November 2019 and that she would discuss the matter when confirmed medically fit, which would probably be in February 2020. The SLO was a volunteer Board member who operated as a link between the staff and the Board.

In November 2019, the Regional Manager phoned the complainant to say that she could not get funding for a replacement for her. She informed the complainant that she had been surprised and shocked to learn from the SLO that she would not be retiring. The complainant states that she was shaken after that call.

Having been confirmed medically fit, the complainant returned to work on 11 February 2020. She had a back to work interview with the Regional Manager on 12 February 2020, where they identified outstanding leave entitlements. The Regional Manager told her that she was now employed on a new contract and that she “would have to go “. She told the complainant that her job was done when she gave her the new contract. The complainant was pressed to provide the date of her intended retirement. The complainant replied that she would remain until she was 70. She asked the Regional Manager if she planned to sack the complainant to which the regional manager stated that she had not made up her mind yet.

On 5 May 2020, the complainant noticed that her pension contributions had not been deducted from her salary. The complainant emailed the regional manager on the 11 May 2020 to try and get clarity about what needed to be done to bring her pension contributions up to date but got no response. She was told that this was because she had signed an agreement for a PRSA in June 2018, which contained a retirement date of November 2019. Again, the Regional Director emailed her asking when she was going to retire to which the complainant responded that she did not know.

From Sept 2018 until the complainant left in June 2020, the emails kept coming to get her to give notice. The emails between the respondent and the pension provider only came to light after she had resigned.

 CA-00038338-001. Complaint under section 77 of the Employment Equality Act, 1998

This was separate, additional complaint submitted on 23 June alleging that the complainant had been discriminatorily constructively dismissed on 17 June 2020 contrary to Section 8 of the Acts.

The complainant’s experience of discrimination and harassment left her with no choice but to resign. She had lost all confidence in the respondent’s willingness to address her concerns.

Cross examination of the complainant.

The complainant confirmed that she was aware of the existence of the staff handbook on the intranet but had never had to consult it. She viewed the retirement age of 65, contained in the Staff Handbook, as non- mandatory.

The complainant accepted that she had received her lump sum, normally associated with retirement, in 2017 to assist a family member.

The complainant accepted that she gave the retirement age of 66 on her PRSA application form, but that she did this in a hurry; it was permissible to retire at 70. She just chose an age.

She confirmed that she was aware that other employees had retired at 65.

The respondent asked her why she states she was surprised and shocked at being asked to retire at 65 in circumstances where other staff had retired at 65, a retirement age of 65 is contained in the handbook. She stated they may have been pressurised to retire at 65. The complainant states that while the meeting with the Regional Manager in September 2018 was relaxed, she was also pressurised about retiring.

The complainant explained that her email to the Regional Manager of 12/9/2018, stating  that she intends to retire at 66 (which accords with her PRSA application form), was because she would have done anything to stay on side with the Regional Manager.

The HR manager should have met her to discuss retirement after 26 years there.

The complainant accepted that when she told the Regional Manager that she was continuing, the Regional Manager had her pension deductions reinstated.

Referring to the complainant’s evidence that the SLO said to her that she could pick her date of retirement, the complainant stated that she was out on sick leave from August 2019- February 2020.

Harassment on grounds of age.

Concerning the complainant’s description of the emails as relentless, and her complaint of harassment, the respondent’s barrister stated that there was an email in July 2018, October 2018, and July 2019. The complainant stated that she could not confirm that there was no contact from the Regional Manager between October 2018- July 2019.

To the question as to whether she had made a complaint of harassment, the complainant stated that she had emailed the SLO about the regional manager and repeated this email in February 2020. She received no response. She had an informal arrangement to meet the SLO in February 2020. He did not show up. Despite the respondent having nothing on record, she did make a complaint to the SLO and to the chair.

The complainant made a complaint in January 2020 about data access; she accepts that she made no mention of harassment.

CA-00038338-001. Complaint under section 77 of the Employment Equality Act, 1998.

 Constructive discriminatory dismissal.

The complainant stated that when there was a no show by the SLO in February to deal with her complaint of harassment she felt that she had no option but to resign.

To the point that she chose to resign after enduring two years of alleged harassment, the complainant said the harassment was being asked to sign a new contract.  No one from the management committee contacted her to provide support.

In relation to her failure to use the grievance procedures, the complainant was told that SLO was the first port of call for a complaint about the Regional Manager. He did not show up to the February 2020 meeting, then Covid 19 intervened.  She tried to do it informally. The complainant confirmed that she emailed the regional manager on 12/9/2018 telling her that she intended to retire in November 2019, but it was an intention; an intention can change. It was not confirmation.

The complainant attended a retirement course in May 2019.

Legal Authorities.

Concerning the basis for the respondent’s use of guidelines governing retirements for public servants, the complainant relies upon a Labour Court Recommendation, LCR19283 in which the respondent argued that as MABS employees were not public servants, public service pension benefits should not apply to them.

The complainant relied upon a number of decisions:

Anne Roper -v- Raidió Teilifís Éireann, ADJ-00019084, where the refusal of a request made at 65 years of age to work for a further 18 months following an internal grievance procedure led to a finding of discrimination against the employer.  The adjudicator found that the means used to achieve a more balanced workforce, age- wise, must be appropriate and should go no further than is necessary.  That was lacking in that situation as it is in the instant case.

Connaught Airport Development Limited T/A Ireland West Airport- Knock v John Glavey, EDA1710, where Mr Glavey, whose contract did not specify a retirement date ‘s contract was found to have been subjected to discriminatory treatment on the age ground when his former employer dismissed him.

Quigley v Health Service Executive [2017] IEHC 654 where the High Court granted an interlocutory injunction to restrain the HSE from dismissing an employee who contended that he was not contractually required to retire at age 65.   

John O’Brien V PPI Adhesive Plastics, ADJ 00009914. This complainant had no retirement date, was retired at 66 against his will, while other employees remained on after 66. His complaint of discrimination was upheld.

The complainant contends that these decisions underscore the discriminatory nature of the treatment to which she was subjected.

CA-00036939-001. Complaint under section 77 of the Employment Equality Act, 1998.

The respondent denies that the complainant was discriminated against or harassed on the age grounds as contended in this complaint. The respondent has no record of any complaint of harassment or discrimination from the complainant before the submission of the complaint to the WRC.

Witness 2: Regional Manager gave evidence under affirmation.

She has held this role since 2018. She was the complainant’s line manager.

Prior to 2018, she never discussed retirement with the complainant.

The witness was tasked with the consolidation of the 52 different MABS centres into eight centres. As part of this, she compiled a staff list and noticed the complainant’s age. Other staff in Dublin South MABS had retired at 65. Her purpose in raising retirement with the complainant was succession planning and staffing needs.  The complainant told the witness at the meeting on 10 September that she did not intend to retire on her 65th birthday and emailed her on the 12 September to this effect. The witness understood from that email that she intended to retire at 66 and was seeking an extension. She cannot recall if she stated that she would retire at 66.

Before the restructuring, other committees had assumed a HR function. After the restructuring, the Board devolved the operational end of HR to the witness as the HR functions which had been previously assigned to these former committees and persons were not prescribed within the service agreement which they had with the funder.

The witness advised the complainant that she would send her a fixed term contract. She had gone to her HR subcommittee with this proposal; she had also gone to the HR Department in Citizens Information Board (CIB), their funder, who advised a fixed term contract for a year. She explained succession planning and the desirability of a balanced age structures to the complainant. The witness was very happy for the complainant to remain on for another year. She was great employee, very good with staff. On 12 Sept she confirmed that she would retire in November 2019.

On 20 Sept the witness wrote to the complainant on the direction of the respondent HR committee and CIB HR department, asking her to indicate her agreement to a fixed term contract which would take here up to 66 years of age, the state pension age. She did this in line with the recommendations which Minister O’Donoghue issued to the public service. She understood that the complainant was happy to retire on her 66th birthday.

The SLO contacted the witness on 18 or 19 November 2019 to state that he had discussed the matter of retirement with the witness, and she had told him that she had no intention of retiring and that she did not wish to discuss it until after her return from sick leave.

The witness was not in contact with the complainant after that until February 2020 when she had a return-to-work meeting with the complainant as is the norm. There was an Occupational Health report and they discussed attendance and the Doctor’s recommendations. She has no recollection of asking the complainant about retirement at that meeting

 As to why she formed the view that the complainant would retire, the complainant went on a retirement course in May2019. From Oct 2018 – July /August 2019 the complainant never raised any the issue of retirement with the witness.

The next contact was in May 2020 when the witness investigated the cessation of the complainant’s salary deductions into the PRSA pension for her. She had stated in the PRSA application form in June 2018 that she wanted to retire at 66. She facilitated the reinstatement of the deductions from the complainant’s salary and into the fund. The complainant incurred no loss in terms of accrued pension benefits and salary during the period September 2018 – June 2020.

The complainant resigned in June. She made no contact with the witness between February and June 2020 concerning retirement. She never raised age discrimination or harassment on the grounds of age with the witness.

Cross examination of the witness.

She does not recall asking the complainant about retirement at the meeting of 12 February 2020

The witness advised the salary department on 18 November 2019 to cease all contributions to the complainant’s PRSA fund as her chosen date of retirement, the 17 November 2019, had passed.

The witness accepted that this instruction was solely based on the complainant’s PRSA application form, completed in June 2018. She cannot recall if the SLO had told her of the complainant’s decision not to retire on the 19 November 2019 before she instructed the salary department to cease all deductions.

She does not recall making the remarks attributed to her at the 12 February 2020 meeting.

The witness declined to comment on the correspondence between board members, submitted in evidence, showing how they could deal with retirement for employees over 65 while avoiding liability for findings against them of discriminatory treatment. The authors of these statements did not attend the hearing. This information was not known to the complainant at the time at which she submitted her complaints to the WRC in June 2020.

Legal Authorities.

CA-00038338-001. Complaint under section 77 of the Employment Equality Act, 1998.

Concerning the complaints of discrimination and harassment on age, the respondent relies upon section 6(3)(c) of the Acts which states

“Offering a fixed term contract to a person over the compulsory retirement age for that employment or to a particular class or description of employees in that employment shall not be taken as constituting discrimination on the age ground if

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

(b)         (b) the means of achieving that aim are proportionate and necessary”

The accepted age of retirement in the respondent’s workplace was 65.

The respondent relies on  A Senior Staff Nurse v A Nursing Home, ADJ27325 and  to the three tier test set out in that case, and while acknowledging that the complainant comes within the protected ground of age, and age was the reason for the respondent’s engagement with her retirement, she cannot meet the second limb of the test which is that she was subject to less favourable treatment because of her age and therefore cannot satisfy the requirement to raise a prima facie case of discrimination. Also, with reference to ADJ27325, the respondent notices that the Adjudicator stated that the discrimination crystalised when her employment was terminated on 28 October 2019 unlike the complainant whose employment was not terminated by the respondent.

The respondent also relies on the WRC Code of Practice on Longer Working which was followed by the respondent.

The respondent also points to the applicability of Madarassy v Nomura International Plc (2007) IRLR 246. The Court of Appeal for England and Wales, dealing with the corresponding UK statutory provisions regarding the burden of proof held that it is necessary to examine the evidence to determine if the actions complained of would in the absence of an adequate explanation constitute unlawful discrimination. In the instant complaint, the actions complained of were brought about by the complaint’s declared intention to retire in November 2019 and could not be held to be discriminatory.

Complaint of harassment.

The alleged harassment of the complainant by the respondent is encapsulated in 3 telephone calls, in November 2019, , 12 February concerning a back to work meeting after sick leave and 5 May 2020. This pattern does not match the definition of harassment found in the Acts.  She has not made out her complaint. The complainant at no stage activated the Dignity at Work Policy. The first mention of harassment came in the complainant’s complaint form to the WRC.

Her complaint cannot succeed.

CA-00038338-001 Complaint under section 77 of the Employment Equality Act, 1998

Discriminatory constructive dismissal.

The respondent denies that the complainant was discriminatorily constructively dismissed. She resigned.

The respondent relies on A Worker (Mr O) v An Employer, (2005) ELR 13E2 where the Labour Court held that the authorities relating to complaints under the Unfair Dismissal Acts were applicable to complaints of discriminatory constructive dismissals under the Employment Equality Acts. The respondent therefore relies on Cederglade Limited V Tina Hliban, UDD 1843 which held that the complaint of c constructive dismissal has to be considered in the context of the “contract test” as set out in Western Excavating (ECC) Ltd v Sharp(1978 WLR) and which requires the complainant to demonstrate that the employer has repudiated the contract and she is thus entitled to treat herself  as discharged from any further performance of the contract. The retirement was never imposed on the complainant and therefore the contract was not repudiated. In addition, or in the alternative, the complainant must demonstrate that the conduct of the employer was so unreasonable as to leave her with no choice other than resignation. This is not the case. Furthermore, the complainant never used the grievance procedures, a requirement set out in Conway v Ulster Bank UDA 474/1981 and in multiple, later decisions.

She has failed to meet either test. Her complaint cannot succeed.

CA-00036939-001. Complaint under section 77 of the Employment Equality Act, 1998.

I am required to decide upon the following matters:

1.Whether the complainant was subjected to discriminatory treatment on the grounds of age in relation to her conditions of employment.

2.Whether the complainant was subjected to harassment pursuant to S.14A of the Acts

Discriminatory treatment on the grounds of age in relation to her conditions of employment.

The issue for decision under this heading is whether the Respondent in attempting to manage the complainant’s retirement at age 65 where her contract identified no retirement date, discriminated against her on grounds of age in terms of Section 6 and in contravention of Section 8 of the Acts?

Scope of the complaint: admissibility of all instances of alleged discrimination.

The complaint of discrimination and harassment was lodged with the WRC on the 16/6/2020. Section 77(5)(a) of the Acts dictates that the only admissible incidents grounding the complaint of discrimination are those that occurred in the six months prior to the submission of the complaint, that period being the 17 December 2019 to 16 June 2020. However, in Hurley v County Cork VEC (EDA 1124), the Labour Court noted that Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation and held that

 “Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum.”

 I find that the approaches to the complainant which extended from September 2018 to May 2020 all concerned the respondent’s eagerness for her to retire. But while the respondent’s engagements with the complainant which she found to be discriminatory are connected, the complainant must, in addition, satisfy a further requirement as  set out in Hurley and in County Dublin VEC v. Dodo EDA1327/2013, and which held that a discriminatory act must have occurred within the limitation period in order for those acts occurring outside of the statutory period to be admissible. Therefore, I must decide if the acts of alleged discrimination occurring between 17 December 2019 and 16 May 2020 constitute discrimination on the grounds of age.

Relevant Law.

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where

 “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) ...”.

 Section 6(2)(f) of the Acts defines the discriminatory ground of age as

” That they are of different ages but subject to section (3) as the age ground.”

 The first obligation which the complainant must meet is compliance with section 85A of the Acts 1998-2015 which lays the onus of proof with the complainant to establish a prima face case of discriminatory treatment contrary to the Acts. Section 85A (1) of the Acts states that

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

In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12 E.L.R. 201, the Labour Court concluded that

“a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”

The complainant must discharge this evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her age. If she does not, her case cannot succeed.

In order to achieve compliance with section 85(A)- the first step- she must satisfy three elements of a test laid out in In Minaguchi v Mr. Ray Byrne, T/A Wineport Lakeshore Restaurant DEC-E/2002/20. The 3 requirements necessary to establish that a prima facie case exists are:

- That s/he is covered by the relevant discriminatory ground(s);

- That s/he has been subjected to specific treatments; and

- That this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.

Applying the above test, the complainant is covered by the age ground in that she is asserting a difference in treatment relative to persons below the age of 65.

Specific treatment complained of within the statutory time limits.

The back to work meeting on the 12 February 2020, after the complainant’s return from sick leave took place in the context of the respondent Regional Manager’s knowledge of the complainant’s revised position not to retire in November 2019, to work into the future and to provide requisite notice. In November 2019, the complainant had informed a volunteer board member of her revised position not to retire in November 2019. It is accepted that this volunteer member, the SLO, did convey that information to the respondent Regional Manager. There is nothing to indicate that this board member advised the regional manager to desist from further enquiries about the complainant’s intended retirement date, even though it was not contested that said member, not in attendance at the hearing, told her she could pick her own date. There was no clarity as to what that person’s responsibilities or the board’s responsibility were when supplied with the complainant’s revised retirement date. The channels of communication within the respondent’s organisation were unclear.

At this meeting on the 12 February 2020, the respondent asked her when she was going to retire and stated that she was out of contract as her contract had expired the previous November. This clearly implies that the respondent expected the complainant to retire at 66.

The statement attributed to the Regional Director that the complainant “would have to go” is contested. The complainant told the Regional Manager that she intended to work until 70. The complainant states that she asked the Regional Manager at the meeting of the 12 February if she was going to be sacked to which she replied that she “did not know”. This is contested evidence.

The second instance of the specific treatment occurred on the 5 May 2020, when the respondent, informed in February 2020 of the complainant’s intention to continue working until 70, asked the complainant, then 66 years of age for her date of retirement. Again, the complainant told her that she would retire on her 70th birthday.

Given that the complainant is covered by the protected ground of age, coupled with the fact that the treatment described raises an inference of discrimination, the complainant had raised a prima facie case of discrimination and the burden of proof must shift to the respondent to demonstrate that the treatment is unconnected with her age.

Rebuttal of discrimination.

The respondent’s defence is that they were engaged in succession planning, prompted by the complainant’s statement which she states was given under pressure in October 2018 of her intended retirement at age 66. But the premise that she was obliged to retire at 66, a premise which informed the respondent’s approaches to the complainant over the period September 2018  - May 2020 was tenuous; in November 2018 she had chosen not to sign the one year fixed term contract, its end date, of  November 2019, having been decided by the respondent: the respondent’s reliance on public sector provisions concerning a compulsory retirement age of 65 was unconvincing in view of the fact that in LCR19283,in an unconnected matter, the respondent had stated that their employees were not public service employees; in November 2019 the  complainant advised  that she would not be retiring at 66 and planned to continue with her own contract and provide the required notice. While it is the case that she provided a retirement date of 66 on a PRSA application form in 2018, any room for doubt about her plan to remain with the respondent until 70 years of age had been dispelled by February 2020.

The essence of the respondent’s case is that the specific treatment complained of was not discriminatory and while she can satisfy the first and third limb of the test set out in A Senior Staff Nurse v A Nursing Home, ADJ27325, she cannot claim that the specific treatment was discriminatory. In making this argument the respondent points to the fact that the authorities cited in support of the complainant all entail the termination of employment by the employer or a refusal to permit the employee to work for a further year until they had reached the age of 66. This did not occur in the instant case. But the statutory provision prohibits less favourable treatment on the protected grounds and while the scale or degree of discrimination may differ, the inescapable conclusion is that the pressure exerted on the complainant to submit a date of retirement short of her stated aim of 70 was less favourable treatment than that afforded to colleagues below the age of 65

So, succession planning, the stated reason for seeking her retirement date in February and May 2020, 3.5 years out from the retirement date identified by the complainant is unconvincing. Employees of a younger age were not required to provide a retirement age 3.5 years in advance of retirement. The age of younger colleagues would not be used to challenge their right to remain on in employment as happened to the complainant. Their right to continue on in employment would be respected; they were not subject to suggestions that “their time was up.” The complainant was capable and wanted to remain in her role.  There was no evidence that any of these matters had been considered in discussions with the complainant and the objective justification of succession planning was unsupported by details as to how this would benefit the workforce, provide a more balanced age structure and why the complainant’s retirement was necessary and/or an appropriate means to achieve this goal. No reason other than her age was offered by the respondent for the decision to treat her differently to other employees.

For the above reasons, I find the respondent has failed to rebut the inference. Accordingly. I find that the respondent did discriminate against the complainant on grounds of age in terms of section 6 (2)(f) and contrary to section 8 of the Acts.

Incidents of alleged discrimination outside of the statutory period.

The first instance cited was the statement to the complainant that she would have to retire, the representation that 65 was the age of retirement and the offer of a fixed term contract in September 2018. S.I.600 /2017 Industrial Relations Act, 1990 (Code of Practice on Longer Working) states

“Where no contractual retirement date exists, it is reasonable as part of workforce planning for an employer to raise and discuss with the employee, their retirement intentions” .

Hence, the absence of a retirement age in a contract does not bar the respondent from discussing retirement. The regional manager was the person tasked with staff planning.

The offer of a one- year fixed term contract was made in the context of the complainant having stated that she would retire one year on in November 2019. It contained objective grounds within the contract. Section 6(3) goes on to state that

“(c) Offering a fixed term contract to a person over the compulsory retirement age for that employment or to a particular class or description of employees in that employment shall not be taken as constituting discrimination on the age ground if—

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

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

In the specific circumstances obtaining, where there was no mandatory retirement age, where the complainant wished to and could have continued on her existing contract in accordance with her  declared intention to retire a year later at 66 without the need for her to be corralled into retirement one year on the expiration of the fixed term contract, and in the absence of any detail as to how this would have enabled the respondent to meet their goals  by means that were appropriate and necessary, I find this to be less favourable treatment than  that dispensed to colleagues below 65 years of age and younger.   No evidence was provided of fixed term contracts being offered to younger employees nearing their retirement. No such controls were deemed necessary.

 I accept that the evidence submitted of behind-the-scenes manoeuvres between board members, devoid of any consideration of how the complainant’s desire to remain on in employment might be facilitated, and designed to absolve them of any culpability for potential discriminatory practices, demonstrated a lack of transparency. These emails only surfaced after the complainant had resigned.

 The second incident was the instruction on the 18 November 2019 to the salary department to cease making any deductions from the complainant’s salary towards the complainant’s PRSA. The complainant had indicated on her PRSA application form that she intended to retire on the 17 November 2019 and had not advised the respondent of a change. The respondent Regional Manager could not recall the date on which the SLO notified her of the complainant’s decision to remain in employment and could not recall if she was aware of this fact before she instructed the respondent’s salary department to cease the PRSA deductions from the complainant’s salary. When the complainant discovered this in May 2020 and raised the matter, the respondent ensured that the contributions to the PRSA were restored.

On the basis of the evidence, I uphold the complaint of discrimination on grounds of age based on the offer of a one-year fixed term contract in September 2018 and the incidents of the 5 February and the 5 May 2020. I decide that the respondent should pay the complainant the sum of €20,000 which represents a little over 4 months’ salary for the effects of the discrimination. In making this award, I am mindful of the decisions to which I have been referred but which involved a greater financial loss for those complainants owing to the decisions of their employers.

Complaint of harassment on age grounds.

The next issue for consideration is whether the complainant was subjected to harassment pursuant to Section 14A of the Acts. In this regard, I am required to consider if the incidents which the complainant submits as evidence of harassment, are of sufficient significance to establish a prima facie case of harassment.

Section 14(A) of the Acts broadly provide that harassment is any

 “Unwanted conduct related to any of the discriminatory grounds”.

This unwanted conduct must have the

 “Purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person” and may “consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”

Instances of alleged harassment on grounds of age.

 The request for a retirement date in September 2018. I find it is an overstatement for the complainant to maintain that she was shocked at this question given that it was commonplace for employees to retire at 65, even those who did not have a contractual retirement date.

The telephone call from the respondent in late November 2019 telling the complainant that she was shocked that the complainant was not going to retire. But up until November 2019, the complainant had not reversed her decision to retire in November 2019, so the expression of shock, if melodramatic, on the Regional, Manager’s part, can be attributed to this new information.

The next instance of alleged harassment occurred in the back to work meeting in February 2020 when the complainant asked the Regional Manager if she would be sacked to which the response was “ I don’t know”. The Regional Manager denies that she made this statement.

Aside from the contested nature of these statements of the 12 February 2020, the fact is that the respondent has a Dignity at Work Policy which incorporates the procedure to be followed when a complaint of harassment is to be made. This offers the employee the option of putting the complaint to the line manager or the Staff Liaison Officer. If the complainant does not wish to use the informal procedure or the complaint is not resolved by that procedure or the outcome is unsatisfactory, a formal complaint may be made. The procedure that will be adopted is as follows:

1. The complainant should make the formal complaint in the first instance to the HR subcommittee of the Board of Directors.

The complainant ‘s evidence is that she did take the initial steps, prescribed in the policy, and made an initial contact with the SLO on 14 November 2019. But her evidence also was that she postponed any discussion of retirement or any other matter until after her scheduled return from sick leave in February 2020. She had a meeting scheduled with him for February 2020 and he failed to show up. The complainant failed to provide evidence that the respondent was on notice of a complaint of harassment as opposed to a sense of unhappiness about the conduct of her line manager. She did not contest the respondent’s evidence that she made no mention of harassment or discrimination in any representation oral or written to the respondent. Aside from this point, the complainant’s contacts with the SLO in November preceded the remarks of the 12 February which she attributes to the Manager.

The telephone conversation with the respondent on the 5 may

 The Labour Court stated in A school v A Worker, EDA122 that

“It seems to the Court that as a matter of principle the complainant cannot rely on the same facts to obtain redress under more than one head of liability under the Acts”

The court went on to state that they would treat the complaint of harassment as if pleaded in the alternative.  The conversation of the 5 May has been addressed and adjudicated upon in then complaint of discrimination.

Apart from the shortage of evidence illustrating that the complainant used the procedures to make a complaint, and which constitutes a defence for the respondent under section 14A (2) of the Acts, I do not find that these approaches to the complainant were of sufficient significance to establish a prima facie case of harassment. I consider that the conduct complained of by the complainant falls short of violating her “...dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment…”.

I do not uphold the complaint that she was harassed on the grounds of her age contrary to section 14A of the Acts.

CA-00038338-001. Complaint under section 77 of the Employment Equality Act, 1998.

The complainant submits that she was discriminatorily constructively dismissed contrary to Section 8 of the Acts on the 17 June 2020.

The compliant submitted her letter of resignation to on the 17 June 2020 after a period of 21 months during which she was pressed for her date of retirement on five occasions.

Section 2 of the Acts defines dismissal as follows:

“dismissal” includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “dismissed” shall be construed accordingly”.

An Employer -v- A Worker (Mr. O No. 2) , the Labour Court addressed the issue of constructive dismissal under Employment Equality Acts. It noted that the definition was practically the same as the definition of "dismissal" contained in the Unfair Dismissals Acts and held that the tests for constructive dismissal developed under that legislation i.e., the "contract" test and the "reasonableness" test were also the applicable tests under the Employment Equality legislation.

In justifying her decision to terminate her employment the complainant will have to demonstrate that the circumstances of her dismissal met the tests as set out by Lord denning, MR in Western Excavating (ECC) v Sharp (1978) ICR 221 and described thus:

 “conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract then the employee is entitled to treat himself discharged from any further performance”.

and the reasonable test which was expressed as

“an employer who conducts himself or his affairs so unreasonably that the employee cannot be fairly be expected to put up with it any longer, the employee is justified in leaving”

The complainant did not make out a case that there had been a breach of contract.

The complainant’s case was based on the discriminatory treatment and the harassment of the employer on age grounds.

The question which I must decide upon is whether, because of the conduct of the respondent, the complainant was entitled to terminate her contract of employment.

I have found that she was subject to discriminatory treatment on age grounds. Whether that validates her resignation is subject to another set of rules; a different threshold or burden of proof applies in the case of a constructive dismissal complaint. I have not upheld the complainant’s complaint of harassment on age grounds. The reasonableness of the employee’s conduct requires to be examined in a complaint of constructive dismissal. The bar in determining constructive dismissal is set very high as stated in McCormack v Dunnes Stores, UD1421/2008, where the EAT stated:

“The notion places a high burden of proof on an employee to demonstrate that he or she had acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve his/her grievance with his/her employer”

The requirement to use the agreed procedures in cases of constructive was followed in Terminal Four Solutions v Rahman, UD 898/2011 and has been followed in many other decisions.

Was the behaviour of the respondent so intolerable that the complaint could not be expected to put up with it one minute longer. The complainant did put up with the respondent’s behaviour from February to June 2020. She raised no grievance during that period. The fact that she was discriminated against on age grounds does not exempt her from the obligation to use internal procedures, a requirement which is absent in making a complaint of discrimination to the WRC.

 It is telling that the complainant kept notes of meetings, copies of emails and a data access request, but omitted to keep a copy of the email which she states that she sent to the SLO about a meeting. Neither does her submission refer to her having exercised the grievance procedure. In these circumstances, I must conclude that the complainant did not activate the grievance procedure.  The complainant’s experience during the period February to June 2020 evidenced little conflict, little in the way of what could be described as intimidating or hostile attitudes towards her which might have inhibited her from activating the grievance procedure in attempt to remedy her concerns. The complainant felt sufficiently comfortable to raise the issue of her pension contributions during this period.

I do not find that the respondent’s behaviour reached a level which was so intolerable that the complainant’s resignation was justified.

I find that the complainant has failed to meet the two tests, namely the “contract test” and the “reasonableness test”, set out in Western Excavating (ECC) v Sharp (1978) ICR 221, and which a complainant must meet in order to succeed in a complaint of discriminatory constructive dismissal.

Based on the oral and written evidence and for the reasons cited, I find that the complainant has failed to discharge the onus of proof required in a case of discriminatory constructive dismissal.

I do not find this complaint to be well founded.

CA-00036939-001. Complaint under section 77 of the Employment Equality Act, 1998.

I decide that the respondent did discriminate against the complainant on grounds of age in terms of Section 6(2)(f) and in contravention of Section 8 of the Acts.  I decide that the respondent should pay the complainant the sum of €20,000 which represents a little over 4 months’ salary for the effects of the discrimination.

I find that the complainant was not harassed by the Respondent contrary to Section 14A of the Acts.

CA-00038338-001. Complaint under section 77 of the Employment Equality Act, 1998.

I find that the complainant was not discriminatorily constructively dismissed contrary to Section 8 of the Acts.

Contract silent on retirement date; offer of one-year fixed term contract; discrimination on age grounds; harassment; discriminatory constructive dismissal.