Complainant

Respondent

Parties

Patrick McInerney

Irish Wheelchair Association

Representatives

Self-represented 

Anne Nagle, Doyle Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00042740-001

27/02/2021

The complainant’s employment ended on the 12th January 2021, and he claims age discrimination. The respondent denies the claim, asserting that the complainant retired.

The complainant gave evidence on affirmation of his years working for the respondent until it ended on the 12th January 2021. He had been on pandemic-related lay-off and was told in August 2020 that the service was closing. He was not made redundant as a colleague was. The complainant worked until he turned 66. The retirement age had been 65 but was raised to 66. He said that some staff had worked into their 70s. He started working for the respondent in 1999 and he accepted that he had been made redundant in 2004 but returned to work for the respondent. He was paid €2,652.52 per month. The complainant turned 66 on the 13th January 2021.

The respondent submitted that the complaint was lodged with the Workplace Relations Commission later than six months of the ‘last date of discrimination’ as stated on the complaint form. It was submitted that the complainant could not show reasonable cause to allow the complaint to be heard. It was further submitted that the complainant had not cited a comparator.

The respondent outlined that the pandemic had a big impact on the service the complainant worked in. The respondent decided to close the service; one employee transferred, and another was made redundant. The complainant was to continue until he turned 66 and attended a retirement seminar in September 2020. The complainant had never asked about his redundancy.

This part of the complainant’s employment with the respondent commenced on the 1st May 2004. It ended on the 12th January 2021, the eve of the complainant’s 66th birthday. The service the complainant had been working in was phased out over the course of 2020, albeit the complainant was not made redundant.

The respondent relies on the retirement age set out in the contract of employment, as amended over the years. The retirement age was extended from 65 to 66.

The complaint form cites the 22nd August 2020 as the most recent date of discrimination; the complainant said that this was an erroneous reference to the 27th August 2020. This was when he and a colleague were told that the service would close, with the colleague being made redundant but the complainant would work until reaching age 66.

It is well-established that the complaint form is not a statutory form (see Co Louth VEC v the Equality Tribunal jurisprudence). The reference to August 2020 was the meeting at which the complainant learnt he was not being made redundant but was to continue working. It is clear that this case is about the ending of the complainant’s employment, which took place on the 12th January 2021. The complaint was lodged in February 2021, so well within the six-month period. It follows that the complaint was submitted in time.

Legal background – EU Directive

The Employment Equality Act transposed Directive 2000/78, which, via Article 2(2), prohibits discrimination on four grounds (including age). The Directive, however, permits direct discrimination on the age ground, where justified. Addressing the justification of differences of treatment on grounds of age, article 6(1) provides “Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.”

As set out by Professor Colm O’Cinneide in his article ‘Age Discrimination in EU law’ “the requirement that age distinctions be ‘appropriate’ in the sense of being rationally linked to the achievement of the relevant legitimate aims, and the requirement that they be ‘necessary’, i.e. that they are suitably tailored and do not impose a disproportionate penalty on the disadvantaged age group.”

Employment Equality Act – age discrimination

Section 6 of the Employment Equality Act provides that discrimination shall be taken to occur where a person is treated less favourably than another person on one of the discriminatory grounds which ‘exists, existed but no longer exists, may exist in the future, or is imputed to the person concerned.’ Section 6(2) sets out the age ground as ‘between any 2 persons … that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”)’.

Employment Equality Act – prohibition of discrimination

Section 8(1) of the Employment Equality Act provides the general prohibition of discrimination in relation to conditions of employment. Section 8(6) provides:

“Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.”

Employment Equality Act – retirement age

Section 34 of the Employment Equality Act provides for savings and exceptions. The provisions relevant to age discrimination are contained in subsections (4) and (5). Section 34(4) addresses retirement age:

“(4) Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees if — (a) it is objectively and reasonably justified by a legitimate aim, and (b) the means of achieving that aim are appropriate and necessary.”

It falls on the employer to show that there was objective justification to rely on a retirement age, i.e. to show that the dismissal was objectively and reasonably justified by a legitimate aim and that the means of achieving this aim were appropriate and necessary.

Application of the law to the facts

The respondent relied on the complainant reaching age 66 as justification for his dismissal. This is clearly a dismissal related to age. I find that it is discriminatory as the respondent has not shown objective justification for the dismissal.

This is not an equal pay claim, and the complainant is not, therefore, required to cite a comparator. He must show less favourable treatment on grounds of age, i.e. that he was dismissed because of his age. He has done this, as these are the grounds relied on by the respondent. Furthermore, the evidence referred to a colleague who was made redundant and another who was transferred; neither course was offered to the complainant because of his age.

It follows that the complainant was discriminated against in the manner of his employment ending on the 12th January 2021. In respect of redress, I note that redress is assessed per the effects of discrimination and should be effective, dissuasive and proportionate. The complainant gave evidence of delays and difficulties in obtaining his pension and he, of course, lost his source of income. Most importantly, the ending of the complainant’s employment ought to have been objectively justified. The protections offered by the Act require that such dismissals on grounds of age be objectively justified. The respondent did not do so in this case. It also did not make the complainant redundant, although it made his colleague redundant. Taking account of all the circumstances, I award redress of €31,830 for the effects of discrimination.

CA-00042740-001

I decide that the complainant was discriminated against in the manner of his dismissal and the respondent shall pay to the complainant redress of €31,830 for the effects of discrimination.

Employment Equality Act / retirement / age discrimination / complaint form