FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES: MCLOUGHLIN & SONS HARDWARE LIMITED / MCLOUGHLINS TRADING COMPANY (REPRESENTED BY MR. JOLLEY B.L. INSTRUCTED BY BOWLER GERAGHTY & CO) - AND - MRS PAULINE BUTLER (REPRESENTED BY MR. DRUMM B.L. INSTRUCTED BY COLLIER LAW SOLICITORS) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s) ADJ-00030024, CA-00040392-009. This is an appeal by Ms Pauline Butler (‘the Complainant’) from two decisions of an Adjudication Officer (ADJ-00030024/CA-00040392-001 and CA-00040392-009, dated 25 July 2022) under the Employment Equality Act 1998 (‘the Act’). In her appeal from CA-00040392-001, the Complainant alleges she was discriminated against on the gender ground in circumstances where her former employer, McLoughlin & Sons Hardware Limited (‘the Respondent’), sought to compel her to retire from her employment on reaching her sixty-fifth birthday having neverless permitted a number of named male employees to continue in employment beyond the Respondent’s stated normal retirement age of sixty-five. In her appeal from CA-00040392-009, the Complainant alleges she was discriminated against on the age ground when she was compelled by the Respondent to retire at the employer’s stated normal retirement age of sixty-five. Neither claim succeeded at first instance, the Adjudication Officer having found that the Complainant had not made out aprima faciecase in respect of either claim. The Complainant’s Notice of Appeal was received by the Court on 26 August 2022. The Court heard the appeal in Dublin on 5 January 2023. The Complainant gave sworn evidence at the hearing as did Mr Kieran McLoughlin on behalf of the Respondent. The Factual Matrix The material facts relevant to the dispute can be summarised succinctly as follows. The Complainant was employed by the Respondent as a receptionist from 24 August 1998 until 29 September 2020. During the greater part of that period, the Complainant worked on a part-time basis and job-shared with another employee. From 2008 onwards, she worked twenty hours per week. In the period comprehended by the within appeal, the Complainant was remunerated at the rate of €16.15 per hour or €323.00 gross per week. The Respondent issued the Complainant with a written contract of employment. The contract does not specify a retirement age. The Complainant was a member of an occupational pension scheme under the rules of which she was entitled to receive her pension on reaching the age of sixty-five. Following the onset of the Covid Pandemic, the Complainant was placed on temporary lay-off with effect from 27 March 2020. The Complainant did not return to the workplace after that date. On 13 May 2020 the Complainant - having become aware that the Respondent had offered redundancy to a number of her colleagues who had also been laid off – emailed the Respondent’s Managing Director, Mr Kieran McLoughlin, to advise that she wished to put her named forward for redundancy Mr McLoughlin replied that Respondent would not be making the Complainant redundant as she was due to retire on reaching her sixty-fifth birthday on 29 September 2020 and that this was in line with the established custom and practice in the business. Mr McLoughlin also told the Complainant that the Respondent would be willing to pay her until the date of her retirement but not require her to attend for work. The Complainant then indicated that it was not her intention to retire at age sixty-five as she intended to continue working until April 2021. Mr McLoughlin reiterated that the established retirement age in the Respondent’s business was sixty-five and also initially told the Complainant that it would not be possible to extend her employment beyond her sixty-fifth birthday because of the detrimental impact of Covid-19 on the Respondent’s business. The Respondent’s position in this regard changed subsequently. By letter dated 26 June 2020, Mr McLoughlin informed the Complainant that the Respondent was then in a position to offer her a six-month fixed-term contract as a receptionist to commence on 1 October 2020 and if she wished to avail herself of this offer she would be required to return to the office on 6 July 2020. In the same latter, Mr McLoughlin advised that his original offer to continue to pay the Complainant up until the date of her sixty-fifth birthday, without requiring her to return to work, was still open to her should she decide to retire on that date. As the Complainant did not revert to Mr McLoughlin to confirm which option she wished to avail herself of, Mr McLoughlin wrote to her again by letter dated 13 July 2020. In that letter, Mr McLoughlin again set out the two options available to the Complainant. In this letter, he made no mention of issuing the Complainant with a fixed-term contract commencing after her sixty-fifth birthday. Instead, he described the second option as follows: “We will grant an extension as you requested to me of working on until April 20th2021 as previously outlined however if you opt to stay on I expect a return to work from 20/07/2020 until the 30thApril 2021”. The Complainant did not reply to Mr McLoughlin’s correspondence as she had by this time instructed her solicitors to deal with matters on her behalf. Mr McLoughlin wrote again to the Complainant by letter dated 22 July 2020 inviting the Complainant to attend a meeting at the Respondent’s offices on 28 July 2020 to “discuss all matters” and “to get clarity on which option [she wished] to exercise”. Mr McLoughlin told the Complainant she could be accompanied at the meeting by a work colleague or Trade Union Representative. He expressly stated in the letter that the meeting was “a routine meeting for clarification purposes and [was] not a disciplinary or grievance matter”. The Complainant instructed her solicitors to reply to Mr McLoughlin. They did so by letter dated 27 July 2020 in which they informed the Respondent that the Complainant would not be attending the meeting scheduled for the following day, that there was no retirement age specified in her contract of employment and the offer of a fixed-term contract was not acceptable to the Complainant. In response, Mr McLoughlin wrote directly to the Complainant by letter dated 28 July 2020, acknowledging receipt of correspondence from her solicitors and again setting out the options available to her at that point in time i.e. retire on 29 September 2020 and be paid up until that date without any requirement to attend in the workplace or accept an extension of her employment up until 20 April 2021, subject to her returning to work “as soon as possible”. Mr McLoughlin also invited the Complainant to attend a meeting with him on 4 August 2022. The Complainant did not attend the meeting nor did she inform the Respondent which option of those offered to her she wished to avail herself of. In a letter to the Complainant, dated 28 September 2020, Mr McLoughlin extended a further invitation to the Complainant to attend a meeting on 30 September 2020 to discuss the situation that had developed. The Complainant did not attend the meeting nor did she formally communicate her chosen option to the Respondent. She was subsequently paid her outstanding annual leave and public holiday payments. Complaint of Gender Discrimination The Complainant submits that three named male comparators were permitted to remain in employment beyond their sixty-fifth birthdays: SOM, DC and LR. Mr McLoughlin told the Court that SOM had been a senior Sales Manager with the Respondent for over thirty years. The witness’s evidence was that SOM was fully aware of the Respondent’s established retirement age and was due to retire on reaching sixty-five but agreed to stay on until a suitably experienced replacement could be found. The witness said that this process took almost twelve months. Mr McLoughlin told the Court that DC had voluntarily left the Respondent’s employment in his mid-fifties and went to work elsewhere for a number of years before returning to work for a brief period with Mr Padraig McLoughlin’s (his brother) company. The witness was unsure as to how long DC remained in that employment. The witness’s evidence was that LR had been the Respondent’s Financial Controller and was fully aware that he was due to retire on reaching his sixty-fifth birthday. However, LR had been absent from work for a number of months due to illness in the period leading up to his sixty-fifth birthday and, therefore, entered into an agreement with the Respondent to continue in his role for a period thereafter to allow him to ensure an orderly handover to his successor. His extension lasted until December 2020 i.e. some five months after he had reached his sixty-fifth birthday. Finally, the witness referred to Mr JD – his brother-in-law – who retired from his employment with the Respondent in March 2020 on reaching the age of sixty-five. Discussion and Decision The Respondent’s position, as articulated to the Court by Mr Kieran McLoughlin, is that the Respondent has operated a policy of mandatory retirement for all employees, regardless of gender, on reaching age sixty-five. (This will be considered in detail below in the context of the Complainant’s claim of age discrimination.) Mr McLoughlin accepted that two of the three male comparators named by the Complainant worked beyond the mandatory retirement age. However, he gave a clear and cogent explanation as to why this came about in both cases. In circumstances where the Complainant requested an extension of her employment for a period of six months beyond her sixty-fifth birthday and the Respondent indicated it would accede to that request, the Court finds that the claim of less favourable treatment on grounds of gender is not well-founded. The Claim of Discrimination on the Age Ground It appears to the Court that there are two elements to this aspect of the Complainant’s case. Firstly, it is submitted on the Complainant’s behalf that the Respondent’s claimed policy of mandatory retirement at age sixty-five is manifestly in breach of the Act in circumstances where there is no reference to a mandatory retirement age in either her contract of employment or the Respondent’s Employee Handbook. It is also submitted that the Respondent’s alleged policy is not supported by objective justification. Mr McLoughlin - when asked by the Court to explain the objective justification relied on by the Respondent to support its retirement policy - was unable to do so. His only explanation for the policy was that it was ‘the norm in the company’. Section 34(4) of the Act provides:
The second aspect of the Complainant’s claim that she was discriminated on the age ground was articulated by her Counsel in the following terms: in the absence of an objectively justified retirement policy, the Complainant should not have been put in a position of having to choose between the two options afforded to her by Mr Kieran McLoughlin (i.e. retiring on her sixty-fifth birthday or accepting a six-month extension of her employment beyond that date). According to Counsel, the latter option was merely an attempt by the Respondent to mend its hand in circumstances where the Complainant was entitled to remain in employment for as long as she needed to stay on. Counsel for the Respondent submits that the request for an additional six months of employment was initiated by the Complainant herself and yet when it was offered to her, she didn’t take it up. Notwithstanding the Respondent’s manifest failure to consider whether or not reasonable justification exists to support a policy of mandatory retirement at age sixty-five, the clear evidence before the Court is that it was the Respondent’s practice to retire employees at that age. Furthermore, there was evidence before the Court of the Respondent exercising a degree of flexibility in the manner in which it applied that practice such as in the circumstances that applied to SOM and LR. Likewise, in the Complainant’s case – the Company acceded to her request to extend her period of work for six months beyond her normal retirement age. In all the circumstances, therefore, the Court finds that this aspect of the Complainant’s claim of discrimination on the age ground is not well-founded. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary. |
