FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES: AER LINGUS SOCIAL ATHLETIC ASSOCIATION (ALSAA) - AND - MARY GAVIN (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00034443 CA-00045481-001 Ms. Gavin, ‘the Complainant’, was employed by ALSAA, ‘the Respondent’, from 1988 to 2021, at which time her employment was ended. It is the Respondent’s position that the Complainant was required to retire at age 65 but that she had been accommodated in her request to be kept on for two further years, by means of two fixed one year contracts. It is the Complainant’s contention that she was dismissed and that her dismissal was on grounds of age, contrary to the terms of the Employment Equality Acts 1998-2015, ‘the Acts’. The complaint of the Complainant was upheld by an Adjudication Officer, ‘AO’, who decided that she should receive compensation of €18400. The Respondent did not attend adjudication and appealed the outcome to this Court, having paid the appropriate fee. Summary of Respondent arguments. The Complainant reached the normal retirement age of 65 years on 22 March 2019.In an exchange of correspondence, she advised the Respondent that she did not wish to retire at that time. The Respondent acceded to the Complainant’s wish to remain in the employment by providing her with a one year fixed term contract. At her request, she was subsequently issued with a further one year contract. In January 2021, during Covid -19 lockdown, the Complainant’s request for a further extension was declined and she was advised that her employment would end when her fixed term contract expired on 22 March 2021. She was not dismissed, she was released from service upon the expiry of her contract. Prior to 2010, The Respondent had very loose HR policies and staff did not have contracts of employment. A collective agreement was entered into with SIPTU in 2010, basic terms and conditions were issued to employees and an Employee Handbook was introduced. This specified a retirement age of 65, the age at which members of the pension scheme could draw down their pension. The Respondent’s position of a mandatory retirement age meets the Workplace Relations Commission’s Code of Practice requirements to be set out in a staff handbook and custom and practice arising from the date in the pension scheme. In discussions with SIPTU, the issue of pension age was never raised. The Respondent has legitimate cause for a retirement age and its actions are appropriate and necessary. The Complainant was a Supervisor at the sports’ pavilion reception desk and if she was to continue working indefinitely, she would block an opportunity for Generation X. Despite it being demotivating for others, the Respondent granted two additional years in employment to the Complainant, in the hope that this would help to prepare her for the lifestyle change. The age demographic of the staff at the particular desk meant that a majority of those concerned reached the mandatory retirement age within an eighteen month period but this operational difficulty presented opportunity to move to a more balanced age structure and in doing so met two other objectives of the Code of Practice in achieving a more balanced age structure and better succession planning. InDonnellan v Minister for Justice, Equality and Law Reform and Ors., (20080 IEHC 4,it was found that, while mandatory retirement was discriminatory, it could be justified if the justifications were sufficient to overcome the rationality challenge. The Respondent is a good employer and facilitated the four reception staff who made requests to be kept on after their mandatory retirement age. The Complainant’s request for a third extension occurred during lockdown, a time which had serious implications for the Respondent’s finances, and she could not be accommodated. The Complainant’s case is similar to but not identical to that of a former colleague as their work roles, immediate team composition and the application of due process were very different. The Respondent’s actions were objectively justified. The continued employment of the Complainant would have been a real disincentive for the next generation. Succession planning was a key factor. The Complainant would have known that the rules applied to her. Summary of Complainant arguments. The Respondent issued a handbook in 2011 stating that normal retirement age was 65 years. However, the Complainant is one of only two employees forced into retirement on this basis. Her colleague has been successful in an appeal before the Court in establishing that she was discriminatorily dismissed. Employers are required to have objective justification for mandatory retirement ages and criteria are set out in the WRC Code of Practice. The Complainant was fit and eager to remain in her role and there is no evidence that any of the Code’s criteria were considered. No objective justifications were ever put to her. Despite the text of the handbook, the only other employee forced to retire at 65 has established to this Court that there was a breach of the Acts. A large number of colleagues continued to work beyond age 65. One colleague retired in 2015 at age 74 and the nature of her work could be argued to be more onerous physically than that of the Complainant. The CEO continues to work for the company at age 74. (Note; the Respondent clarified to the Court that the CEO is not a direct employee of the Respondent). The Complainant believed that she would be treated the same as other employees in being allowed to remain in employment. The Respondent failed to comply with the Code of Practice requirement to set out the grounds for the decision to refuse an extension. The Respondent has failed to justify objectively by reference to a legitimate aim, the decision taken. The conduct of the Respondent meets the definition of discrimination in the Acts and under s. 85A of the Acts, because there is prima facie evidence of discrimination, the burden of proof rests with the Respondent, see alsoMitchell v Southern Health Board 92001) ELR 201.Further, it is not sufficient for the Respondent to merely assert that there were objective reasons for its decision as ‘mere assertions cannot be elevated to a factual basis’, as the Court noted inMelbury v Valpeters EDA/0917. As noted in ‘Donnellan’, see above, ‘mandatory retirement is discriminatory per se’ and requires objective justification if it is not to be deemed to breach the Acts. There is no evidence that the objective justifications on which the Respondent seeks to rely have ever been considered and they cannot be applied retrospectively. Despite the compulsory retirement of the Complainant’s colleague, management never indicated a change in policy on compulsory retirement and subsequently reverted to the policy of allowing people to be retained. In the entire history of the Respondent, no worker was required to retire compulsorily prior to 2020, despite the existence of the handbook. No rationale was provided to show that the compulsory retirement of the Complainant was objectively and reasonably justified by a legitimate aim that was appropriate and necessary to achieve. The Complainant suffered stress, indignity and significant financial loss. The applicable law. Employment Equality Acts 1998-2015 Discrimination for the purposes of this Act. 6.—(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where— (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which— (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned, (b) a person who is associated with another person— (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination. (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are— (f) that they are of different ages, but subject tosubsection (3)(in this Act referred to as “the age ground”), Redress which may be ordered 82.—(1) Subject to this section, the types of redress for which a decision of the Director General of the Workplace Relations Commission undersection 79may provide are such one or more of the following as may be appropriate in the circumstances of the particular case: (a) an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 3 years before the date of the referral undersection 77(1)which led to the decision; (b) an order for equal remuneration from the date referred to inparagraph (a); (c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case undersection 77; (d) an order for equal treatment in whatever respect is relevant to the case; (e) an order that a person or persons specified in the order take a course of action which is so specified; (f) an order for re-instatement or re-engagement, with or without an order for compensation. Burden of proof. 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. Extract from S.I. 600/2017 Code of Practice on Longer Working Objective Justification There is no statutory retirement age in the private sector. Retirement ages in the private sector are generally set out by means of: (a) an express term in the employee’s contract of employment; (b) an implied term in the employee’s contract of employment; (c) relevant policies, for example a staff handbook; and (d) custom and practice generally arising from the pension date set out in the relevant occupational pension scheme. The rules governing the compulsory retirement ages for public servants are, in the main, set down in primary legislation. [600] 5 The Employment Equality Acts 1998 to 2015 prohibit discrimination on nine grounds including age. Therefore, the termination of an employee because of age could be construed as discrimination under the legislation. The Equality (Miscellaneous Provisions Act) 2015, which came into effect on 1 January 2016 made a number of amendments to the 1998 Act. Section 34 (4) of the Act now states as follows: “(4) Without prejudice to subsection (3) it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntary or compulsorily) of employees or any class or description of employees if— (i) it is objectively and reasonably justified by a legitimate aim, and (ii) the means of achieving that aim are appropriate and necessary.” Essentially the law is now that compulsory retirement ages set by employers must be capable of objective justification both by the existence of a legitimate aim and evidence that the means of achieving that aim is appropriate and necessary. Examples of what constitutes a legitimate aim by an employer may include: • Intergenerational fairness (allowing younger workers to progress); • Motivation and dynamism through the increased prospect of promotion; • Health and Safety (generally in more safety critical occupations); • Creation of a balanced age structure in the workforce; • Personal and professional dignity (avoiding capability issues with older employees); or • Succession planning Deliberation. Many of the facts in this case are similar to those in respect of claimed discrimination on age grounds in the case ofALSAA v. Ms. Doreen Nolan, EDA 2231.In the view of the Court, the legal considerations are identical, a point which was accepted by the Respondent’s representative in the course of the hearing. It follows, therefore, that both the determination on whether or not the Complainant’s rights were breached and the logic used in reaching that determination should be similar. In ‘Nolan’, the crucial finding was set out as follows; ‘…the Complainant was not issued with a contract of employment upon the commencement of her employment. The Court was told that implementing a retirement policy of 65 years came about as part of an effort to standardise matters and to issue everyone with a statement of their individual terms and conditions of employment. The Court is satisfied in those circumstances that the Complainant had no contractual retirement age at the time of her employment by the Respondent….’ The Court is satisfied that this is also true in the instant case. The Court in ‘Nolan’ went on to observe; ‘The Respondent relies solely on the staff handbook to assert that the Complainant’s normal retirement age was set at 65 years of age.
As in that previous case, no evidence was provided to the Court to show how the handbook could be said to have incorporated a compulsory retirement age into the Complainant’s contract of employment. Likewise, the Court agrees with the view expressed in ‘Nolan’ that the retirement age set out in the handbook is not expressed as a mandatory requirement and that the terms of the handbook cannot be relied upon to incorporate a compulsory retirement age into the Complainant’s contract. In ‘Nolan’, the Court considered if the Complainant ought to have known that a compulsory retirement age had been incorporated into her contract. As in that case, in the instant case the Court cannot find any document from which any such requirement could be discerned. It is not denied by the Respondent that the Complainant was dismissed because of her age. Any claim that such an action was objectively justified by a legitimate aim is, in the view of the Court, undermined by evidence of inconsistent application in that at least one other employee has been retained in employment by the Respondent beyond the age of the Complainant and by the absence of any evidence that the means of achieving any such aim is appropriate and necessary. In short, therefore, the Court finds that the Complainant was dismissed unfairly because of her age. In doing so, the Court notes that, as in the case ofDonnellan v The Minister for Justice, Equality and Law Reform and Ors., (2008) IEHC 4, while a mandatory retirement age is discriminatoryper se, an employer can enforce such a requirement lawfully if to do so is to pursue a legitimate aim and if the means of doing so can be shown to be appropriate and necessary. However, in the instant case, the so called requirement was not part of the Complainant’s contract, no clear and legitimate aim was identified and/or laid out clearly and unambiguously to the Complainant either in advance or at the time when she was dismissed and no substantive argument of any objective value was made to illustrate that the imposition of a mandatory retirement age was appropriate and, in particular, necessary. In the view of the Court, such arguments as were made amounted toex post factojustification for an arbitrary decision to refuse to extend the Complainant in employment beyond two years after the ‘normal’ retirement age set out in the Respondent’s handbook. It is not for the Court to speculate as to the reasons for that decision except to note the absence of any clear, stated, aim in advance of the decision being taken. The Court notes that, unlike most cases of dismissal, there is no evidence of a rancorous prelude to the severing of the relationship between the Complainant and the Respondent in this case. The dismissal did not arise from a falling out between the parties. In such situations, it is useful for the Court to explore the feasibility of restoring that employment relationship as a possible remedy for unfair dismissal. The Court heard from the Complainant that she would be prepared to return to work but the Court was advised that the preferred remedy was that of compensation. The Complainant described to the Court her bewilderment at being told that her employment was ceasing, in circumstances where she had every reason to believe that she would be retained, given that colleagues had been retained consistently over many years after reaching age 65. She described her feelings of isolation and depression as a consequence of this unexpected turn of events and told how she had struggled to adapt to her change in circumstances. The Court was very struck by this description of the effects on her and gave serious consideration to the possibility of determining that re-instatement might be the best remedy for her. However, having considered the effects on the Complainant of the discriminatory dismissal and having taken account of what both she and her representative shared with the Court on the question of remedy, the Court determines that the preferred remedy of compensation at an appropriately significant level is warranted, having regard to s.82,(1) (c) of the Acts, which requires the Court to consider the ‘effects’ of the discrimination. The Court sets that amount at €30,000 and directs the Respondent to pay that amount to the Complainant. Determination. The Decision of the Adjudication Officer is varied.
NOTE Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary. |
