Complainant

Respondent

Parties

Michael Bohan

Oak Central Recruitment Services Limited

Representatives

John J. Quinn & Company LLP

 Carley and Connellan Solicitors

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-00046464-001

30/09/2021

The respondent is a haulage and logistics company and the complainant, an articulated truck driver, commenced employment on May 23rd 2017.  He was 65 on March 22nd 2020 and, although the retirement age in the company is 65, he continued to work from the onset of the Covid-19 pandemic and into early 2021.  In April 2021, the complainant was offered a fixed-term contract for two years, bringing him to age 68.  He declined the offer because of two conditions; firstly, he was required to break his service and take two weeks’ unpaid leave before commencing on the fixed-term contract, and secondly, the new contract contained a provision for six months’ probation. 

In a written submission provided in advance of the hearing of this complaint, Mr Quinn said that the complainant’s contract makes no mention of a retirement age.  In an employee handbook issued to the complainant when he joined the company in May 2017, there is no reference to a retirement age.  In 2019, the complainant’s employment transferred to the respondent under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 and a new handbook was issued which stipulated that the retirement age was 65.  Mr Quinn submitted that there was no consultation with the complainant about this change and that he was entitled to continue to work in accordance with the terms and conditions that applied before the transfer.

Mr Quinn noted that, in early 2020, in advance of him reaching age 65 in March, the complainant had a conversation with the HR manager, Ms Garvey, about his and the company’s plans for his future employment.  The complainant will say that Ms Garvey said that he would continue working.  At a meeting a year later, around February 2021, Ms Garvey and the solutions manager, Mr Dunne, offered the complainant a fixed-term contract for two years, on condition that he broke his service for two weeks.  On April 8th 2021, Ms Garvey issued the complainant two weeks’ notice of the termination of this employment.  The complainant’s line manager gave him a copy of the notice and also a copy of a fixed-term contract from May 10th 2021 until May 9th 2023.  Apart from the requirement to break his service, the complainant was unhappy with the prospect of having to be on probation for six months.  He consulted a solicitor, who wrote to the respondent on April 21st 2021.  The solicitor asked the respondent to retain the complainant until he reached the age of 68, on the terms and conditions of his current contract, with no break in service and no requirement to complete a new probation period.  No one from the company replied to the solicitor’s letter and there were no further discussions with the complainant prior to the termination of his employment on April 23rd 2021. 

Evidence of the Complainant, Mr Michael Bohan

Having been employed through an agency to cover for an employee who was out sick, in May 2017, the complainant became a direct employee of the respondent.  He was given a contract, a copy of which was submitted in evidence.  He said that he didn’t sign the contract because he objected to the clause that said that he would have to provide his own personal protective equipment, and there was no provision for a pension or death in service benefit.  The complainant said that the contract had no reference to an age of retirement.

Describing his day to day work, the complainant said that the depot where he worked was engaged in the delivery of dried goods to a major grocery chain and he generally started work at 4.00am and he delivered all over Ireland.  He said that he was fit and capable of doing the work, and that he had to have a medical every five years to have his artic driver’s licence renewed.

Mr Quinn asked the complainant if he got a copy of the most recent company handbook, produced in 2019.  The complainant said that he was aware of the handbook, but he doesn’t remember getting a copy[1]. 

Based on the experience of two of his colleagues who he named, the complainant said that he thought he could work on until after the age of 66.  At the meeting in 2020, before he reached his 65th birthday, the complainant said that Ms Garvey told him that they might have a difficulty getting insurance for drivers over age 70.  He said that he was planning to work until he was 67 or 68. 

Around March 2021, the complainant said that he got a phone call from his line manager telling him that he was to meet Ms Garvey, the HR manager and the solutions manager, Mr Dunne.  He said he got no notice of the meeting and his manager appeared to be reluctant to tell him what the meeting was about.  He was advised to bring someone with him.  At the meeting, he was informed that, in line with company policy, as he was coming up to age 66, he had to retire.  He was also told that he could return to work on a fixed-term contract after taking two weeks’ unpaid leave.  He said that he asked Mr Dunne what his options were and that Mr Dunne replied that he had no options.

On April 8th, the complainant received a letter confirming that his employment would terminate on April 23rd.  At the end of that week, he pointed out to his manager that he wasn’t on the roster for the following week.  He said that his manager asked him if he had signed the contract and when he replied that he hadn’t signed it, his manager said that he was told that he couldn’t give him work if he didn’t sign it.  Before he finished up on April 23rd, the complainant said that the general manager asked to see him and asked him what he planned to do.  He said that he told the general manager that he “couldn’t accept the contract as it is.”  He said that the general manager replied, “there’s nothing I can do.”  Before he finished up, the complainant said that he met Ms Garvey in the office and, again, referring to his retirement age, he said, “you’re sacking me because of my age.”  The complainant said that Ms Garvey replied, “no, we’re offering you an alternative.”

Cross-examining of the Complainant

Referring to the continuation of his employment after the age of 65, the complainant said that at the early stage of the Covid-19 pandemic, work was a bit easier, because there was less traffic on the roads.  He said that the Longford depot where he worked was busy, and that the Covid regulations were manageable. 

In response to questions from Mr Connellan, the complainant said that he had no problem with being offered a fixed-term contract after he was 66.  He said however, that he wanted to be treated like everyone else and, referring to the probation issue, he said that he was not a new starter.  By being asked to take two weeks’ unpaid leave, it was equivalent to “sacking myself” and he was losing his continuity of service.  These were the two issues of concern.  He said that, with such a big change, he thought there would be a conversation with him, “not just a shred of paper.”

The complainant agreed with Mr Connellan that the 2019 handbook was available to employees, 

Referring to other employees who worked after age 65 and even up to age 70, the complainant said that he is not aware that anyone who worked over the age of 65 was on a fixed-term contract. He thinks they just kept on working.

Mr Connellan addressed the problem that, in April 2021, the complainant had used up all his holidays and that he wasn’t able to leave and be paid outstanding holiday pay. 

Mr Connellan suggested to the complainant that he ended his own employment by not accepting the offer of a fixed-term contract.  The complainant didn’t agree, saying, “they didn’t have to give me that contract.”

Mr Connellan said that Mr Dunne will say that the issue of the two weeks without pay could have been discussed.  The complainant reiterated that Mr Dunne had informed him that he had no options.

Responding to a final question from Mr Quinn, the complainant said that, if he had been told at the meeting with Mr Dunne and Ms Garvey that he could continue on for two years on his current terms and conditions, he would have stayed on.

In a submission provided to the WRC in advance of the hearing of this complaint, Mr Connellan set out the background to the complainant’s termination of employment.  The company’s employee handbook provides that the retirement age is 65.  Due to Covid-19, the respondent adopted a flexible approach to the complainant’s retirement age in March 2020.  When he reached age 66 in March 2021, he was offered a fixed-term contract, provided that he took two weeks off to break his service.  It is the respondent’s case that pay is not influenced by length of service and the break in service would not have any effect on the complainant, apart from the loss of earnings.

The policy of having employees retire at age 66[2] is to allow new, younger staff to enter the workforce.  The jobs in the company are not highly skilled but are well-remunerated.  Mr Connellan submitted that the insistence on a mandatory retirement age should be seen “through the prism of social responsibility and employment progression.”  He said that there is “a social imperative that the workforce would change over time and that retirement would be a feature of that workforce.”  The offer of a fixed-term contract gave certainty to the employee and the employer and the policy was objectively justified because not all staff would be offered a fixed-term role if they were not suitable.

In his submission, Mr Connellan referred to guidelines produced by the Irish Human Rights and Equality Commission in 2018 on Retirement and Fixed-term Contracts.  He said that the application of a retirement age is universal in the company, as it applied to all employees, and is not discriminatory.

Referred to the decision of the Labour Court in O’Donnell v O’Keeffe, EDA2133, Mr Connellan submitted that this precedent shows that it is not discriminatory to have a mandatory retirement age for a legitimate business reason.  There are substantial business reasons for having a retirement age in the respondent’s business, as it employs around 700 staff across various depots.  Individual employees may be offered a fixed-term contract to work after age 65 or 66.  In this instance, the employee declined the offer of such a contract.

Mr Connellan submitted that this former employee’s claim is “precipitous,” because he was offered ongoing employment.  He then complained about the probation clause and the break in service.  Mr Connellan argued that, if an adverse event had occurred under either of these headings, then the complainant may have had a complaint.  As he declined the offer of employment, the employer cannot be considered to have acted in a discriminatory manner.

Evidence of the Solutions Manager, Mr Gareth Dunne

Mr Dunne was the manager of the Longford depot in 2021 and he described the circumstances in which he and Ms Garvey met the complainant, during the Covid-19 restrictions.  Mr Dunne said that he checked with the complainant’s manager to see if he would be available in the depot for a meeting.  At the meeting, Mr Dunne said that he told the complainant that the good news was that he was being offered a fixed-term contract, if he was in good health.  He said that they should have had this discussion in 2020, and that Covid had delayed things.  He said that the complainant seemed pleased.  Mr Dunne said that he told the complainant that he could select a retirement age, and that he was to take a break from work for two weeks before starting on his new contract.  Mr Dunne said that the complainant was concerned about breaking his service.  He said that wages are not aligned with years of service, and no disadvantage arose from the break in service, apart from the loss of earnings for two weeks.  The complainant had no holidays left and therefore, had no entitlement to holiday pay.  Mr Dunne said that he told the complainant that they would work something out, such as paying holidays in advance.

Asked about others in the same circumstances as the complainant, Mr Dunne said that two employees remained on and one man retired at age 65.  The two men that remained on had holidays not taken and received holiday pay during their break in service.

Cross-examining of Mr Dunne

In response to Mr Quinn, Mr Dunne recalled that he didn’t give the complainant any notice of the meeting in February 2021.  He knew that he was out driving and that he would be back in the depot late in the afternoon.  He agreed that the complainant may not have known precisely what the meeting was about, but he said that he might have had some idea.  He wasn’t given an opportunity to bring a colleague. 

Mr Quinn asked Mr Dunne how the complainant could have been aware of the age of retirement in the company.  Mr Dunne replied that the complainant was friendly with another employee who was older than him and he had a copy of the company handbook. 

Referring to the terms and conditions of employees before they transferred to the respondent company in 2019, Mr Quinn asked if employees were not entitled to the terms they enjoyed before they transferred.  Mr Dunne replied that the company is entitled to introduce new policies.

Mr Quinn asked Mr Dunne why the company decided that it was appropriate to have a retirement age of 65.  Mr Dunne said that the company’s view is that it met the requirements of the market.  Driving is a physical job, and if a pallet collapses inside a truck, the driver has to re-assemble it and this requires lifting and placing goods back on a pallet at a height.  He also referred to the length of the working week.  The retirement age of 65 was decided on to open opportunities for new employees and to ensure that staff are capable of working. 

Mr Quinn asked Mr Dunne about the reference in the respondent’s submission to an assessment, which determined that a fixed-term contract was to be offered to the complainant.  Mr Dunne said that this was an assessment of what was required for the role.  He said that the company doesn’t send employees for medical assessments.  This is done as part of the renewal of licences.  If the company had concerns about the health of a driver, they would be sent for an examination.  Mr Dunne said that it was their view that the complainant was able-bodied and competent.

Following the complainant’s departure, Mr Dunne said that they temporarily outsourced some work to cover his routes.  A driver from the night shift then applied for a day job.  This driver is aged 24.

Mr Dunne said that the company wanted the complainant to remain working with them.  He said that he told him that nothing would change.  He said that the complainant knew that the company was committed to sorting out the issue of the two-week break in service.  He said that they didn’t want the complainant to leave, and that they currently have two drivers over age 66.

Questions from the Adjudicator

Before he finished giving evidence, I asked Mr Dunne why the company had a policy of asking an employee aged 65 or over to take a break for two-weeks before starting on a fixed-term contract.  Mr Dunne said that the company wanted to “have a clear line” between contracts and that they took advice on this.

Asked when he came to know that the complainant wasn’t going to take up the new contract, Mr Dunne said that he heard from the HR manager or the general manager that he wasn’t going to sign the contract.  He understood that the main problem was the break in service.  He said that he didn’t speak to the complainant and he left it to the general manager and the HR manager to deal with the issue.  He said that he didn’t feel there was any value in having a conversation and he felt that they had talked to the complainant at the meeting in February.  Mr Dunne said that he understood that the problem for the complainant was the fact that he was expected to break his service before starting again on the fixed-term contract.  He said that they wanted to have continuity regarding this across all their businesses.

Evidence of the HR Manager, Ms Thelma Garvey

Ms Garvey was asked about a meeting she had with the complainant in early 2020, before he turned 65 on March 22nd.  She said that he called up to her office and mentioned that he was coming up to age 65.  She said that the told the complainant that they would discuss it with him and that she didn’t think there would be any major changes. 

Ms Garvey then referred to the meeting which she said took place in February 2021, when the complainant arrived back to the depot from a delivery.  She and Mr Dunne spoke to the complainant about the fact that he was nearly 66.  She explained that they should have had a meeting with him in 2020, but, with the pandemic, that didn’t happen.  Ms Garvey said that they told the complainant they would offer him a fixed-term contract.  She said that he replied that he wasn’t going to work for much longer and that he would consider two more years.  She said that he didn’t seem concerned about the fixed-term contract, but, when it was explained to him that he would have to take an unpaid break for two weeks, he was concerned about having no pay.  The complainant said that he had no holidays left.  Ms Garvey said that she told the complainant that he could decide when he wanted to break his service.

On April 8th 2021, Ms Garvey said that she gave the complainant’s line manager a letter for him, with a copy of the fixed-term contract.  The line manager reported back that he wasn’t going to sign the contract.  She said that neither she or Mr Dunne approached him about this.  She knew that the general manager spoke to him.

Ms Garvey said that two people over aged 66 signed fixed-term contracts and remained with the company.

Cross-examining of Ms Garvey

In response to questions from Mr Quinn, Ms Garvey said that she didn’t give the complainant a copy of the fixed-term contract at the meeting in February 2021.  She said that she waited until April 8th.  Asked why it was necessary to break the complainant’s service for two weeks, Ms Garvey said that it was “just to have a break.”  Ms Garvey recalled that, at the meeting, the complainant said that he was going to get advice about it.  Asked why the company didn’t reply to the letter from the complainant’s solicitor in April 2021, Ms Garvey said that she didn’t see the letter.  She said when the line manager told her that the complainant wouldn’t sign the contract, she felt he had made a decision.  She said that the company wanted to keep the complainant on.

Before the transfer to the new company in May 2019, Ms Garvey said that employees who reached age 65 “just stayed on.”  At the meeting in February, she said that she and Mr Dunne thought that the complainant could work for longer.  Asked why he wasn’t simply allowed to continue working, in the same way as the employees who stayed on before the transfer, Ms Garvey said that the company introduced a new handbook with a retirement age.  She disagreed that he was offered less favourable terms compared to others.  She said that the new policy was to break the service of those who reached age 65 and to bring them back on a fixed-term contract.

Regarding the issue of probation, Ms Garvey said that she didn’t think it would be an issue.  Even though the probation clause provided that the full scope of the disciplinary procedure did not apply to employees on probation, she said that “we would always go through the process,” regardless of the probation clause.

The Legal Framework

The legal framework prohibiting discrimination on nine specific grounds is set out at section 6(1) of the Employment Equality Act 1998 – 2015 (“the Act”). 

“…discrimination shall be taken to occur where –

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in sub-section (2), in this Act, referred to as the ‘discriminatory grounds’…”

At sub-section (2)(f), the “the age ground” islisted as one of the nine discriminatory grounds.  The complainant’s case is that he was discriminated against when, on being offered a fixed-term contract after he reached the age of 66, he was required to break his service and to be on probation for the first six months.  He argues that, when he refused to accept these conditions, he was dismissed because of his age.

The Burden of Proof

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

“85A – (1) Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the responsibility is on the complainant to show that, based on the primary facts, he has been treated less favourably than a younger person.

The nature of the primary facts is clearly set out in the decision of the Labour Court in Arturs Valpeters v Melbury Developments[3], which addresses the onerous nature of the burden of proof:

“This requires that the complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Primary Facts

At the hearing of this complaint, there was no dispute regarding the following primary facts:

The complainant was 66 when he was offered a fixed-term contract from May 2021 until May 2023.  The contract contained a probation clause which provided that his employment could be terminated on one week’s notice, or “without notice should the circumstances warrant it.”  Apart from this clause, the complainant had no concerns about any other provision in the proposed contract.

The fixed-term contract was offered to the complainant on condition that his employment was terminated and that he commenced two weeks later, on a date of his choosing.

As set out by the Labour Court in the Valpeters decision, to establish that discrimination has occurred, I must find that, in respect of one or both of these two issues, “there was evidence of some weight from which it could be concluded” that the complainant was discriminated against because of his age.

Findings

Having examined the evidence, it is my view that it is sufficient for me to assume that discrimination occurred when the complainant was offered a fixed-term contract with a probation clause and with a requirement to break his service.  I must now consider the employer’s rationale for these actions and their position that these requirements did not give rise to discriminatory treatment.

At the hearing, Mr Connellan argued that the complainant’s claim was made “on a contingency basis,” meaning that he had no claim until the employer exercised some rights arising from the break in service or the probation.  For example, if a redundancy situation arose at some time in the future and the complainant’s service was considered not to be continuous from 2017 until the expiry of the fixed-term contract in 2023, then he could, in the respondent’s view, make a complaint of discrimination.  Similarly, if the respondent sought to dismiss the complainant in the first six months of his fixed-term contract, on the basis that he was on probation, then he could complain that this clause could only be exercised because he was on a new contract with a new probation period.  At the hearing, Mr Connellan submitted that, “had an adverse event occurred under either of those headings, the claimant may have had a claim at that point.”  I disagree with this argument; if an employer recognises that there is a possibility that a clause in a contract, or a condition of offer, such as a break in service, might lead to discrimination, then it is incumbent on the employer to address the issue and to remove the risk.

To the respondent’s credit, despite the physical aspects of the work, they have kept on employees over the age of 65 as drivers, as long as each driver is fit for the job.  On the one hand, the employer is saying to older workers, “you’re welcome to remain working with us for another few years,” and on the other hand, they are saying, “you can only do this on two conditions.”  No evidence was submitted that these two conditions would apply to a younger employee moving from one fixed-term contract to another, or to an employee moving from one job to another on new terms and conditions. 

At the hearing, I failed to get an explanation for requiring employees over age 65 to break their service before starting on a fixed-term contract.  I cannot see what benefit this gives to the employer, apart from a misunderstood aspiration that it breaks continuity of service in a redundancy scenario.  If that is the intention, then the requirement is entirely discriminatory, because it would lead to the continued service of older workers being reduced due to their age.  Regarding the probation clause, I am certain that an employer’s proposal to exercise this clause to dismiss an older employee on a fixed-term contract, following on from a permanent contract, would not stand up to challenge.

I find that, by insisting that an employee who wishes to work after the normal age of retirement accepts that his service is broken, and by including a probation clause, the respondent has attached specific conditions to the employment of older workers.  These specific conditions provide only disadvantage and no benefit.  I have concluded therefore, that, by requiring him to accept a break in service, and by including a probation clause in this new contract, the complainant was discriminated against on the ground of his age.

I have concluded that, as a result of the requirement to accept certain conditions attaching to a fixed-term contract to work after the age of 66, the complainant was discriminated against on the ground of his age.  I decide therefore that, in accordance with section 79 of the Employment Equality Act, this complaint is well founded, and I direct the respondent to pay the complainant compensation of €10,000, equivalent to approximately three months’ pay.

Discrimination, age, retirement, fixed-term contract, probation, break in service