Complainant

Respondent

Anonymised Parties

A Bus Escort Worker

A National School

Representatives

John Hennessy Hennessy & Perrozzi Solicitors

Paul McDonald AJP McDonald 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-00046044-001

08/09/2021

CA-00046044-001 A claim pursuant to Section 77 of the Employment Equality Act 1998 (as amended).  

The matter was heard before me on the 1st December 2022 and 21st March 2023 at the offices of the W.R.C., Lansdowne House, Dublin. 

On the basis of the existence of special circumstances in this case, I make an order that this decision be anonymised pursuant to section 79(2) of the Employment Equality Act 1998 (as amended).  Those special circumstances are the avoidance of any prejudice to the continuing working relationship between the parties and the avoidance of unnecessary embarrassment to the Complainant by revealing her identity when her personal circumstances are discussed in the decision.

The Complainant claims that she was discriminated against by the Respondent in relation to her terms and conditions of employment, that she was harassed and victimised on the grounds of age within the meaning of those terms in the Employment Equality Acts 1998-2015.

The Complainant was represented by Cathy McGrady B.L. instructed by Hennessy & Perozzi Solicitors. The Complainant gave her own evidence and she also called evidence from one witness, who was a former principal of the Respondent for over 37 years and who retired in 2013 (“Former Principal 1”). Both witnesses gave evidence on affirmation and the detail of their respective testimonies is discussed where arising in the findings below.

It was alleged that the Complainant was subjected to discrimination on the grounds of age contrary to Section 6 of the Employment Equality Acts 1998-2015 (“the Acts”), in that repeated efforts were made to impose compulsory retirement on her despite her objections where the conditions for mandatory retirement contained in Section 34 subsection (4) of the Acts (as amended in 2015) were not complied with. The discrimination started in September 2020 and continued up to and including the date on which the proceedings were initiated in September 2021. Throughout this time the Complainant suffered distress, distress, illness upset and humiliation. Even though she was entitled to work until up to age 70, the Complainant was forced to beg and fight for the job which she had been doing for the previous 15 years. She was ignored for long periods of time and in October 2020 she was left completely in the dark as to whether she was to return to work after the school mid-term break. In addition to the foregoing alleged breaches, it was further alleged that the Respondent had failed to comply with the code of practice implemented by the Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017 S.I. Number 600 of 2017 hereafter referred to as “the Code on Longer Working”.

It was further alleged that the Complainant was harassed on the age ground within the meaning of and contrary to, the provisions of Section 14A of the Employment Equality Act 1998 as amended.

It was alleged that the Complainant was victimised within the meaning of and contrary to, the provisions of Section 74 of the Employment Equality Act 1998 as amended. 

A series of specific allegations was also relied upon arising from various issues cited as supporting all of the claims made.

The Complainant made a detailed submission in her WRC Complaint Form and further detailed submissions as to fact and law were made in writing and orally by counsel on her behalf at the hearing as discussed below.

The Complainant cited:

O’Brien v. Persian Properties trading as O’Callaghan Hotels DEC-E2012-01.

Clarke v. Dublin South MABS ADJ-00028562

Geraghty v. Revenue Commissioners ADJ-00000031

A Senior Staff Nurse v. A Nursing Home (In Liquidation) ADJ-00027325

McCarthy v. Cork City Council EDA0821

Portroe Stevedores v. Nevins [2005] E.L.R. 283

The Respondent was represented by Barra Faughnan B.L. instructed by AJP McDonald Solicitors. Two witnesses gave evidence on behalf of the Respondent. Both gave evidence by affirmation. The first witness was the Principal who served from 2013 to 2021 (“Former Principal 2”). She took over from when Former Principal 1 (The Complainant’s witness) retired in 2013 and she herself retired in October 2021. The second witness acted as a parent representative member of the Respondent Board throughout the events the subject matter of the present claim and she presently holds the position of Chairperson of the Respondent’s Board. Both witnesses gave evidence on affirmation and the detail of their respective testimonies is discussed where arising in the findings below. The Respondent provided a written submission and further submissions were made orally by counsel.

The Respondent’s submissions in summary, were as follows:

(1) The Complainant was not subject to discrimination – the retirement age in her contract of employment signed in 2010 was at that time wholly lawful and she was fully aware of it for the decade prior to the present dispute.

(2) The Respondent's obligations in law on foot of the amended legislation (specifically the enactment of Section 34 subsection (4) in 2015, were to consider the request to work beyond the contractual retirement age and review its retirement ages. The Respondent Board of Management considered the Complainant's position and made adjustments to her retirement age and in so doing it complied with its legal obligations. Specifically, the Respondent:

(a) Granted the Complainant an extension to the end of the school year while it considered her request for a later retirement date;

(b) During the currency of that extension, advised the Complainant that she could continue to work until the end of the years when she reached the age of old age pension (i.e. for at least the following academic year);

(c) Thereafter indicated that the Complainant could work until the age of 70. This development, it was contended, rendered the discrimination claim moot.

The obligations on an employer which had in place a lawful retirement age prior to the amendment the legislation are to reconsider that policy in the light of the amended legislation and to review same. It is also required to consider requests from employees to work for longer. All of this theRespondent did. Accordingly, it was denied that the Respondent breached either its legal obligations or its obligations under the Code on Longer Working.

At no stage was the Complainant in fact required to retire at 65 on foot of her age. The Respondent sought to distinguish the authorities relied upon by the Complainant on the basis that in the present case the proposed measures, i.e. the retirement dates, were never actually implemented.

The board took its decision in relation to extending the retirement age to 70 having regard to prevailing conditions in relation to retirements as they had developed in recent years and the emerging complexities in the law in that regard. While the Respondent accepted that there were some delays finalising the Complainant’s retirement, the law and practice in this area is not straightforward and has been developing at a pace and the plethora of cases before this forum dealing with age discrimination and different retirement ages in this regard is evidence of that fact. It was contended that the issue of retirement was and is complex and gives rise to organisational concerns for an employer such that the Respondent in the present case was entitled to take time to consider how to deal with retirement ages in the changing practical, Employment and legal environment following the amendment to the Employment Equality Act. The situation was further complicated by the Complainant’s contention that she is a “Public Employee” for the purposes of the Public Service Superannuation (Miscellaneous Provisions) Act 2004 as amended by Section 3 (a) (i) of the Public Service Superannuation (Age of Retirement) Act 2018. In its written submission at the adjudication hearing, the Respondent contended that the status of the Complainant’s employment, that of a bus escort engaged in a non-pensionable job funded by the Department of Education was not that of a “relevant public servant” for the purposes of either the Public Service Superannuation (Miscellaneous Provisions) Act 2004 in its then form or as amended by Public Service Superannuation (Age of Retirement) Act 2018. The same submission discussed Boyle v. Minister for Education and Skills [2018] IESC and, Department of Education Circular 75 of 2019 and concluded that:

“In the premises, the reliance placed on the 2018 Act and an assertion that all public employees are entitled to a retirement age of and/or that the Complainant has a statutory retirement age of 70, is misconceived in law.”

In relation to the legal difficulties presented generally by the issue of compulsory retirement the submission stated:

“There have been a number of cases dealing with this situation in the WRC and Labour Court in the last number of years and in the vast majority of those the maintenance of different retirement ages for different employees and/or different retirement ages depending on when an employee came into work have been upheld (although not in the Geraghty case cited by the Complainant).

As matters stand there are conflicting decisions in the WRC and Labour Court as to justification of these differences.”

The Respondent accepted that the Complainant was distressed but it did not accept that its actions were unlawful and/or that it acted in bad faith. It was accepted that there was a delay in reaching the stage where the retirement was finally set at age 70. In the circumstances this claim is largely moot because the Complainant’s request was granted and her retirement age pushed out to 70.

(3) It was denied that the Complainant was subjected to the alleged or to any harassment.

(4) It was denied that the Complainant was subjected to the alleged or to any victimisation.

Summary of Relevant Facts and Events

The Complainant is a part-time bus-escort who has worked for the Respondent pursuant to a contract of service since October 2007. She works 27.5 hours per week and her remuneration is €368.50 per week which is paid directly by the Respondent Board of Management out of a grant provided by the Department of Education for ancillary school staff. The Respondent employs 12 ancillary staff including the Complainant.

The Complainant’s date of birth is the 6th of November 1955. Her original contract signed in October 2010 provided for a “normal retirement age” of 65 years at which time the contract was automatically to terminate.

The relevant contract provision was as follows:

“This agreement will automatically terminate without any right to notice of compensation when the Employee attains the normal retirement age of 65 (sixty five) years of age.”

In the Complainant’s case, her 65th birthday was anticipated in November 2020 during the academic year August 2020 to June 2021.

The Complainant did not want to retire at age 65. She discussed the issue with the then Principal of the School and with the encouragement and support of the latter, the Complainant wrote a formal letter dated the 15th of September 2020 to the Respondent (hereafter referred to as “the Formal Request”).

The full text of the Formal Request was as follows:

“I wish to apply to the Board of Management for an extension of my contract beyond my 65th birthday which I reach this year. I have been an escort on the bus bringing the children with Autism to the units in both schools since 2006. My contract is with the Junior School Board. At the time I started my job the retiring age generally was 65 years that has since changed and people are being encouraged to work for as long as they can.

I am a widow for a long number of years now and I really love my job. I am also very financially dependent on my income from it. I have over the 14 years of my work taken my

responsibilities very seriously and I have had the pleasure of working with many beautiful Children and their parents who have enriched my life greatly. Recently we have had to deal with the very difficult Covid virus and new restrictions have had to be implemented on the bus this has been very difficult for everyone but especially for the children I care for. We are all sorted now with everything working well. The children don't like change of any kind and a change now would impact greatly on them as well as me.

My job with the school has been the most important thing in my life since I lost my husband and would really appreciate being able to work for some more years. I had a underlying

health issue but have recently been discharged from the hospital and am looking forward to

enjoying good health going forward.”

The Respondent convened a board meeting in the course of which the Formal Request was discussed. A letter dated the 16th of September 2020 was sent to the Complainant on the day following the Formal Request, stating as follows:

“The Board of Management, at a meeting on l5th September,2020, considered your request for an extension to your contract as Bus Escort. The Board is obliged to adhere to the terms of your contract, which states that the agreement will terminate on you reaching the age of 65 years and therefore the Board is not in a position to grant an extension to this contract, as requested.”

This Decision is referred to below as “The Initial Retirement Date”

The Complainant sought advice and she challenged this response in a letter dated the 21st of September 2020 addressed to the Chairperson of the Respondent.  The Complainant contended that she was classified as a Public Servant under the FEMPI No2 Act 2009 and as such that her maximum retirement age should be 70 years. The point was also made that the law in relation to mandatory retirement had changed to the extent that an employee could not be forced to retire unless there were “very good objective reasons”. The Complainant also pointed out that other staff – cleaners – employed by the Respondent had been allowed to work to the end of the school year in the years when they had reached age 65.

The letter ended as follows:

“I am now informing you that I wish to continue in my job for the foreseeable future and look forward to hearing from you soon. This particular issue has caused me great personal hurt and distress and I wish to have it resolved as soon as possible”

The Complainant sent a further letter addressed to the Chairperson of the Respondent seeking a response on the 19th of October 2020. She noted that exactly one month had elapsed since her previous letter and she expressed surprise that this letter had not even been acknowledged. She pointed out that her 65th birthday was (by then) only three weeks away. She sought at the very least to be allowed to work on until the end of the school year whilst maintaining her right to work until age 70. The Complainant also intimated that she was prepared to make a claim to the W.R.C. if necessary.

This letter received a response from the Respondent’s Chairperson on the same date, the 19th of October 2020 stating as follows:

“We acknowledge receipt of your letter dated 15/09/20 and your most recent letter

dated 19/10/20.

The Board of Management has been proactive in dealing with the issues raised in your

initial letter and is awaiting correspondence.

There is a Board of Management meeting scheduled for Tuesday, 20th October, 2020

at which your concerns will be discussed.”

The Respondent wrote again to the Complainant on the 21st of October 2020 which letter included the following:

The Board of Management at a meeting on 20th October, discussed the issues raised in your letters to date. We would like to let you know that we are awaiting legal advice from… They are aware of November 6th being the retirement date on your current contract.

We will contact you as soon as the advice being sought has been received and considered by the Board of Management. All future correspondence should be submitted to the Chairperson of [the Respondent] at [School Address provided]

Please note that it is important for the Board to clarify its legal responsibilities as an employer.

The School closed for mid-term break on the 26th of October 2020 and was due to re-open on the 2nd of November 2020 with the Complainant’s 65th birthday falling on Friday of that same week, the 6th of November 2020.

A firm of solicitors (other than those presently on record for the Complainant) wrote a letter to the Respondent dated the 30th of October 2020. 

The letter noted that the Complainant intended to remain in her role “as is customary within the school, until the end of the school year” and following this it was stated that the Complainant “seeks and extension of her employment contract with the Board of Management for a period of five years as she is not in a position financially to retire at sixty-five”. It was noted that the Complainant had written on three separate occasions since the 15th of September 2020 seeking confirmation of her lawful request and it was alleged that the “inexcusable delay in dealing with this matter has caused great distress and upset“ to the Complainant. The letter further contended that no reasonable and objective justification nor any legitimate aim to be achieved had been provided to justify the compulsory retirement contrary to the Acts and there was also a lack of consultation, guidance or support and the Respondent, it was alleged, had neglected to respond to the Complainant’s correspondence in a reasonable time period.

A reference was made to the retirement at age 70 of Bus Eireann bus drivers employed by the latter to provide services as part of the School Transport Scheme for children with special needs on behalf of the Department of Education and it was alleged that the Respondent had not provided an adequate reason why this criterion could not equally be applied to the Complainant.

Given the “time sensitivity” of the matter the letter required the Respondent to provide an undertaking by Monday the 2nd of November 2020 that the Complainant would not be dismissed on the 6th of November 2020 and that her terms and conditions of employment would be preserved pending a resolution of the matter between the Respondent and the Complainant. 

The Complainant personally delivered this letter to the Chairperson of the Respondent at his home. In doing so she said that she had been legally advised to deliver the letter in person. The School was closed at this time.

The Respondent’s solicitors replied to the Complainant’s solicitors by letter dated the 2nd of November 2020. The Respondent’s solicitors stated that they understood that the Complainant was recently advised that the Respondent was “re-considering her request and will revert to her as soon as possible”. Noting that the Complainant would turn 65 “at the end of this week” the letter stated that it was not feasible that the Respondent would complete its consideration of the issue before then. However, an offer was made “on a strictly without prejudice basis, a temporary extension to {the Complainant’s] contract of employment until the end of the current school year, being the 30th of June 2021 and the Board will consider [the Complainant’s] application for a further extension beyond that date”. The letter also stated that all future correspondence should be sent to the School address rather than delivered to the Chairperson’s home. This decision will be referred to as “the Second Retirement Date”.

[It should be noted that the parties agreed at the hearing that the foregoing letter could be opened and considered notwithstanding the use of the phrase “without prejudice” in the text of this otherwise open letter.]

The next letter opened to me at the hearing was from the Respondent directly to the Complainant. The letter is dated the 20th of April 2021. It stated that the Respondent was satisfied that:

“in the interests of health and safety of employees, and in order to promote intergenerational opportunities, it is appropriate to have a retirement age…however the Board is of the view that it is reasonable that the retirement age should be linked to the qualifying age for State Pensions…”

The letter puts forward an amended contract providing for the automatic termination of the Complainant’s contract on the 30th of June following the date on which the Complainant attained “the age that is the normal qualifying age for State Pensions (non-contributory) prevailing at the material time”.  This decision is referred to below as “the Third Retirement Date”.

The Complainant replied on the 20th of May 2021. She said that her solicitor’s advice was to accept the offer made in the Respondent’s letter of the 20th of April 2021 but subject to the insertion of a caveat to the re-drafted contract whereby she reserved her right to remain in employment notwithstanding her age. She raised some other issues which it was agreed were not pertinent to the present case. She also wished to record how badly treated she felt having waited 9 months for a reply to her initial request and that the issue had caused her a significant amount of stress.

The contract was signed by the Complainant in the form in which it was proffered in the Respondent letter of the 20th of April 2021 and without the clause suggested by the Complainant in her letter of the 20th of May 2021. This issue was dealt with in a particular manner by agreement at the hearing as detailed below.

The Complainant initiated the present claim by way of WRC Complaint Form which was delivered on the 8th September 2021. As of that date the Complainant’s was due to reach age 66 by November of 2021 but her employment was not due to terminate until the end of that academic year at the end of June of 2022.

The Respondent wrote to the Complainant directly on the 1st of June 2022 (prior to the end of the academic year) stating that the respondent had agreed to amend the Complainant’s retirement age to the end of the school year following her 70th birthday. The letter concluded as follows:

“The Board looks forward to your continued valuable service. While the Board was acting in good faith in this matter, we regret any distress caused”.

This decision is referred to below as “the Fourth Retirement Date”.

Relevant Law in Relation to Discrimination Generally on the Age Ground

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) sets out the grounds in respect of which discrimination, as defined above is prohibited. Of relevance to the present case is ground (f) the “Disability Ground” which is set out as follows:

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

” That they are of different ages but subject to subsection (3) [subsection not relevant to present claim] in this Act referred to as “the age ground”).”

Section 8 (1) (c) of the Acts prohibits discrimination against an employee in relation to conditions of employment.

Section 85A of the Acts makes specific provision in relation to the burden of proof in Discrimination Claims

Section 85A (1) of the Acts states that:

“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.”

In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12E.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 presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”

The Labour Court has held in Hallinan v. Moy Valley ResourcesDEC-S2008-025 that to establish the relevant facts the Complainant must:

(a)    establish that he or she is covered by the protected ground;

(b)   Establish the specific treatment has allegedly taken place;

(c)    The treatment was less favourable than was or would be afforded to a person not covered by the relevant discriminatory ground.

See also Minaguchi v Mr. Ray Byrne, T/A Wineport Lakeshore Restaurant DEC-E/2002/20

Specific Provision Regarding Retirement

Where a retirement age is set, this constitutes evidence from which it may be presumed that discrimination has occurred and thus section 85 A directs that, it is for the respondent to prove the contrary, by which is meant that that a presumption  arises which must be rebutted by a respondent to avoid liability for discrimination. In the case of retirement any such rebuttal relating to retirement must comply with Section 34 subsection (4) which provides as follows:

“Without prejudice to subsection (3), [Not relevant to the present claim] 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.”

The requirements can be broken down as follows:

A. There must be an aim

B. That aim must be legitimate

C. Assuming that aim to be legitimate, reliance upon it must be

(i)           objectively and

(ii)          reasonably

justified

D. The means of achieving that aim must be

(i)           appropriate and

(ii)           necessary.

All of the above elements must be present before the benefit of the provision can apply such that the retirement age concerned can be deemed not to constitute discrimination.

Application of Relevant Law to Facts and Findings from Evidence and Submissions

The Effects of the Retirement Dates Decisions

Applying the above test in Hallinan v. Moy Valley Resources, DEC-S2008-025, 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. This formulation was not challenged by the Respondent. The difference in treatment in this case is the setting of a retirement date which process will be presumed to be discriminatory unless objective grounds are established. Where, as in the present case,  the setting of a retirement date is concerned, those objective grounds are specified in Section 34 subsection (4). If all of the requirements of that section are established the setting of the retirement date will not constitute discrimination. It follows that if any of the requirements are not established, the setting of the retirement date will constitute discrimination on the age ground.

In the present case the Respondent fixed several progressively later dates of retirement in relation the Complainant’s employment by way of a series of decisions which were communicated to the Complainant in writing. The first decision made on the 16th of September 2020 relied on the retirement date at age 65 in the contract of employment (“the Initial Retirement Date”). This decision was then superseded on the 2nd of November 2020 where the retirement was extended to the end of the school year in June 2021 (“the Second Retirement Date”). On the 20th of April 2021, just under six months later and before the end of the same academic or school year, the retirement date was extended again (“the Third Retirement Date”). This time it was to be to linked to the qualifying age for State Pensions such that the employment was to terminate on the year when the qualifying age was attained but not until the end of the school year in which that occurred. It was agreed at the hearing that in practical terms, that date would have been the 30th of June 2022. Just under five months after the decision regarding the Third Retirement Date was communicated, the present proceedings were instituted on the 8th September 2021.  As of that date, the Complainant was due to reach age 66 by November of 2021 but her employment was not due to terminate until the end of that academic year at the end of June of 2022. However on the 1st of June 2022, i.e. a month before the end of the academic year, the Respondent communicated its agreement to amend the Complainant’s retirement age to the end of the school year following her 70th birthday (“the Fourth Retirement Date”).

The Fourth Retirement date, i.e. compulsory retirement at the end of the academic year when age 70 is reached, was in place as at the date of the adjudication hearing and it was confirmed that the present claim does not extend to a challenge to the lawfulness or otherwise of that retirement date. Accordingly, nothing in this decision should be construed as a ruling on the legal status of that retirement date. However the Respondent did argue on the strength of the Fourth Retirement Date that the present claim is largely moot because the Complainant’s request was granted, and her retirement age pushed out to 70.

In the present case I consider it necessary to examine whether the Initial, Second and Third Retirement Dates satisfy all of the requirements (as set out and broken down above) provided for in  Section 34 subsection (4).  

In the present case, no justifications sufficient to meet the requirements of Section 34 subsection (4) of the Act (as amended) were put forward in relation to the Initial Retirement Date. In addition to being in breach of Section 8, the Decision regarding the First Retirement Date was also in breach of existing custom and practice in the School since the Complainant was to retire on attaining age 65 rather than finishing out the year, as was the existing practice.

The decision in relation to the Second Retirement Date was again, for the same reasons as above, in breach of Section 8 and constituted continuing discrimination albeit that it did (belatedly) address the breach of custom and practice as the Complainant was to be permitted to finish out the School Year. The fact that the offer was made without prejudice and as an interim measure does not affect the character of the situation from the Complainant’s perspective, as from her point of view she was still facing a retirement date which would, had it been implemented have been discriminatory and which she continued to resist. My conclusion therefore is that both the Initial and the Second Retirement Dates would have been discriminatory and unlawful had they in fact been implemented or acted upon.

The next question that arises is whether,  even though the decisions in relation to those dates were not enforced or acted upon, in that they did not bring about a termination of the Complainant’s employment, did the manner in which they were effectively left hanging over the Complainant and left her in a state of uncertainty and anxiety as to whether her position would be terminated, constitute  discrimination such as to entitle the Complainant to compensation for the effects of such discriminatory treatment. I answer this question in the affirmative as it is clear from the evidence that the Complainant suffered stress as a result of the uncertainty, and I find that this stress was at its most acute when those decisions were communicated and in the manner and timing of those communications. On this issue I have had regard to the evidence given on the Complainant’s behalf by Former Principal 1 who, in uncontroverted testimony, gave an account of the stressed state that the Complainant was in when she visited her after her Formal Request was refused and her general state of stress thereafter.

In relation to the Third Retirement Date, it is the case that Counsel for the Respondent has provided some basis in his submissions for the rationale backing a retirement date which tracked the age for the normal qualifying age for State Pensions and indeed extended the retirement date to the end of the school year regardless of when that age was reached. Moreover, counsel also made the point in his closing oral submissions, that when the decision regarding the Third Retirement Date was made in April of 2021, the decision in Geraghty v. The Revenue Commissioners ADJ-00000031 had not issued. The same can also be said for the decisions (cited by the Complainant) in A Senior Staff Nurse v. A Nursing Home (In Liquidation) ADJ-00027325 and Clarke v. Dublin South MABS ADJ-00028562. Additionally in relation to all three of those decisions, Counsel for the Respondent correctly identified that in those cases, the impugned compulsory retirement measures were in fact implemented whereas in the present case the impugned measures were not actually implemented. 

Thus, the import of the submission was that the alignment with the qualifying age for state pension had yet to be the subject matter of a definitive ruling when it was set in April 2021. Accepting this point as I do, I take the view that it would, in the present case, be unfair to consider the substantive findings in those cases (all of which held that compulsory retirement ages of 65 were unlawful) as they were not decided when the Respondent’s decision in relation to the Third Retirement Date was made. 

Whatever about the alignment of the retirement date with the qualifying age for the state pension, no detailed submissions were offered for the rationale or thinking behind the other justifications put forward in April 2021 by the Respondent in the contract proffered regarding the “the interests of health and safety of employees” or the goal of promoting “intergenerational opportunities”.  There were no minutes of the board meeting where the decision was discussed and taken. The Respondent did not provide in evidence, any detail as to how, if at all, these particular issues were considered by the Respondent such as to find their way into the document which set them out as justifications. In such circumstances I find that the Third Retirement Date would not have been lawful had it been implemented or enforced as there is insufficient evidence that all of the requirements of Section 34 subsection (4) were or could have been met. 

In the light of this finding, as with the Initial and Second Retirement dates discussed above, I must determine whether, as the Complainant contended, the failure to reverse this decision was itself discriminatory conduct on the part of the Respondent such as to entitle her to compensation for the effects on her of that discrimination. I find that this question too must be answered in the affirmative as the Complainant did not accept the lawfulness of this retirement date either and she continued to experience stress as she anticipated being retired against her wishes in June 2022. As at the date of the initiation of the present claim in September 2021 the Third Retirement Date decision had yet to be reversed and thus it was still hanging over the Complainant when the present claim was initiated.

Accordingly I find that the Complainant was discriminated on the age ground as provided for Sections 6(1) and 6 (2) contrary to Section 8 of the Employment Equality Act 1998 As Amended in the manner described and for the reasons set out above.

Other Allegations

The Complainant made a series of allegations in her Complainant Form and in her evidence which, it was contended, provided evidence of discrimination and/or harassment and/or victimisation. I will make findings in relation to each of these allegations separately by reference to the evidence, and the above summary of correspondence and agreed facts.

Admonishment

The Complainant said that she was admonished for hand delivering the solicitor’s letter to the then Chairperson’s house and that the “the attitude towards her changed after this”. The only mention of this issue in the correspondence is a request in the Respondent’s letter dated the 2nd of November 2020 “that all future correspondence should be sent to the School address rather than delivered to the Chairperson’s home”, which cannot be construed as an admonishment. In her evidence the then Principal said that she that she always treated the Complainant with courtesy and the Complainant accepted this fact also. In such circumstances I do not uphold this allegation.  

Allegation That the Complainant Would Have to Apply for Her Own Job

The Complainant alleged that she was told by the then Principal (Former Principal 2) that she would have to apply for her own job.  Having heard the sworn evidence (including cross-examination) of both parties to this conversation, I find that this was a throw-away or facetious remark by the then Principal and was not intended in any way to be taken seriously nor was it intended to be discriminatory, intimidating or threatening to the Complainant,  albeit that if it had not been uttered there would have been no misunderstanding as to what, if anything, was meant by the comment. I find that this comment does not constitute evidence of discrimination or harassment or victimisation.

The Complainant alleged that she was forced to sign the contract proffered by the Respondent in April 2021.

It was common case as indicated at the adjudication hearing that the contract was signed by the Complainant in the form in which it was proffered in the Respondent letter of the 20th of April 2021 and without the clause suggested by the Complainant in her letter of the 20th of May 2021. However the Complainant’s case was that she felt pressurised to sign the contract for fear of dismissal, which allegation was denied by the Respondent. No evidence was adduced that any threat of dismissal or indication of any other consequences was made by the Respondent if the contract were not signed.  At the hearing it was agreed that the issue would be dealt with on the basis that the Respondent would not rely on the signature of the Contract by the Complainant as an abandonment or waiver by her of her previously asserted right to remain in employment notwithstanding her age. For this reason I do not propose to make a finding in relation to the allegation of pressure or duress in relation to the contract and I do not uphold this allegation as a ground for discrimination, harassment or victimisation.

Alleged Exclusion from School Emails.

In her evidence the Complainant alleged that she had not received emails which were sent to other members of staff and this situation arose as a result of her request for longer working.

In her evidence the Respondent’s then Principal explained that there was no email address on file for the Complainant and she was asked to provide one and when she did so she did receive emails in the same way as other staff. The Complainant accepted this explanation and accordingly the allegation is not well founded.

Alleged Exclusion from Social Events

The Complainant contended that following her Formal Request she was excluded from social events involving the School. The Complainant accepted in cross-examination and the Respondent gave evidence to the effect, that no social events took place at all around the time alleged due to the Pandemic Restrictions. The Complainant accepted this explanation and accordingly the allegation is not well founded.

Pandemic Unemployment Payment

The Complainant contended that she was told by the then Principal that she would have to apply for Pandemic Unemployment Payment and she raised this issue in her evidence as an instance of unfair treatment whether by way of discrimination, harassment or victimisation. The Complainant accepted in cross-examination and the Respondent gave evidence to the effect, that the Complainant was told by the then Principal that if she was at high risk from COVID 19 due to an underlying medical issue, that she would need to apply for Special COVID19 leave so as not to use up her sick-pay entitlement. I find that this allegation is unfounded and arose from the Complainant’s poor recollection and misunderstandings surrounding the relevant events.

Exclusion from the Distribution of Personal Protective Equipment

The Complainant alleged that as a result of her Formal Request, she was excluded from the distribution of Personal Protective Equipment. The evidence (both direct and in cross examination) clarified that this issue arose in or about August of 2020 which was prior to the Formal Request for an extension of time in September 2020. Accordingly, this allegation even if it occurred as alleged,  cannot be associated with any retirement issues since none had been raised at that time and thus no finding in relation to this issue is required. However given the fact that the parties still work together and to avoid any residual issues raised by this allegation, I find that this allegation is unfounded and arose from the Complainant’s poor recollection and misunderstandings surrounding the relevant events. I accept the evidence of the then Principal who explained that she herself delivered the PPE to the Complainant’s house. In summary I do not find that the then Principal acted in any way unfairly or improperly in relation to the supply to the Complainant of PPE and this allegation does not establish discrimination, harassment or victimisation.

Unfair Refusal to Pay Christmas Holiday Pay in Advance.

The Complainant received payment in advance of Christmas at her request in 2019. However, when that occurred the Complainant accepted that she was told that the arrangement would be a “once-off”. The Complainant was refused advance Christmas pay in December 2020 but the evidence clearly establishes that no such facility was afforded to any staff member. Principal 2 testified that the arrangement could not be continued due to Revenue objections and this evidence was not challenged. I find that the refusal to pay the Complainant in advance for Christmas 2020 had no connection whatsoever with the retirement issue. 

I find that none of these allegations constitute a basis for a claim for discrimination, harassment or victimisation.

The Harassment Claim

Harassment is provided for in Section 14A which was inserted into the Acts by the Equality Act 2004. Section 14A  provides (where relevant) as follows:

“(1) For the purposes of this Act, where—

(a) an employee (in this section referred to as ‘the victim’) is harassed …either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is—

…(ii) the victim’s employer…

or

(b) without prejudice to the generality of paragraph (a)—

(i) such harassment has occurred, and

(ii) either—

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II) it could reasonably be anticipated that he or she would be so treated,

the harassment …constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment….

(7) (a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds…

being conduct which … has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”

In order to establish liability for harassment pursuant to Section 14A, more specific grounds must be established than those required to establish discrimination pursuant to Section 8.

In the present case, to establish liability for harassment the Complainant must establish that the Respondent engaged in “unwanted conduct” which for the purposes of the present case might have  included “acts, requests or spoken words”. One established, the unwanted conduct must be such as to have the purpose or effect of violating the Complainant’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment.

To support this allegation, the Complainant relied on the fact that uncertainty was created by the various decisions in relation to her retirement date which were not addressed in a timely manner and that the delay and uncertainty which followed caused her stress. Separately she relied on the “Other Allegations” as discussed above. Whilst allegations arising from alleged ”spoken words” were advanced by the Complainant as amounting to victimisation, I have already found above (under the heading “Other Allegations”), that these allegations are incapable of grounding any claim for harassment.

In the present case what the Respondent did was to react to the issues raised by the Complainant and thus it is questionable whether such constitutes acts or actions as distinct from reactions. Similarly the status of the proposal to set the retirement ag at 66 could be construed as a reaction and not a “request” as such. 

Leaving aside the foregoing issues and turning to the other limbs of the definition, i.e. the purpose or effect of the alleged conduct, I have already found above under the heading “Other Allegations” that the specific factual allegations relating to alleged exclusion and unjust criticism cannot ground any claim for harassment. Whilst it is possible that the continuing uncertainty surrounding her position, had an effect on the Complainant’s dignity, I find that it cannot reasonably be said that this was done on purpose by the Respondent. I am also mindful of the fact that the Complainant continued to work for the Respondent throughout the events under review and that she continues to do so and that in her evidence she acknowledged that she was always treated well by the then Principal and has no issues with the present principal or with any other (non-retirement related) aspects of her continuing employment. In such circumstances I do not find that the working environment from the Complainant’s point of view was at any time intimidating, hostile, degrading, humiliating or offensive as is required to establish liability under Section (7) (a)

Taking all of the above factors into account, I find that the Complainant has not adduced sufficient evidence to ground her claim of Harassment and accordingly I find that the Respondent did not harass the Complainant.

The Victimisation Claim

Applicable Statutory Provision and Findings

Section 74 subsection (2) of the Acts defines victimisation as follows:

“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

Victimisation is a stand-alone cause of action which requires specific proofs in that there must be evidence that the dismissal or (as in the present case) the alleged adverse treatment occurred as a reaction to any of the situations listed at (a) to (g) of Section 74 (2). 

The term ‘adverse treatment’ is not defined in the Employment Equality Acts. Although there is no express mention of motivation or intention in the section, the Labour Court in the case of ESB International v Mumtaz  EDA1935,has indicated that the process of assessing liability under this provision “involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent”. As to what has been held to constitute adverse treatment, a review of the decisions made where adverse treatment has been found to have taken place reveals a common theme where the impugned conduct involved the taking of a positive detrimental act by the employer.  Such conduct has included the unilateral alteration of terms of employment, an alteration to the location of employment, the withdrawal or curtailment of benefits, the making of detrimental remarks or comments about the employee or unfairly questioning his/her qualifications or, in extreme cases, dismissing the employee. None of these occurred in the present case. 

In the present claim the Complainant relied on several instances of alleged adverse treatment which allegedly arose as a reaction to her complaint of discrimination. I have already found (under the heading ‘Other Allegations’) that these allegations cannot support a claim of victimisation. This leaves the sole issue of the delay and uncertainty created by the decisions in relation the retirement dates, which I have already found would have been unlawful had they been enforced. I have already found that this conduct of the part of the Respondent falls within the category of “unfavourable treatment” of the Complainant within the meaning of Section 6 (1) but I find that it does not meet the higher threshold of adverse treatment required by Section 74 subsection (2).  The delays arose form a lack of preparedness on the part of the Respondent, failure to follow best practice as per the Code of Practice on Longer Working and poor communications with the Complainant. Even though the communications were belated, and at times insensitive, I find that they cannot reasonably be construed as adverse treatment in the sense that they were deliberate or vindictive or made in bad faith.  Moreover, the Complainant did not suffer a financial detriment, a withdrawal of benefits or other facilities. No unjust or unfair criticism was made of her nor was she subjected to any collateral attack of any sort nor was she dismissed or actually threatened with dismissal.

In such circumstances I find that the Complainant was not victimised.

Redress for Discrimination Arising from the Breach of Section 8

Arising from the discrimination as so found I must now consider the Complainant’s claim for compensation arising from the effects upon her of the discrimination. In the present case the Complainant alleged that she experienced significant stress and upset initially when her Formal Request was refused outright in the Respondent’s letter of the 16th of September 2020. The then Principal was a party to the board meeting on the 15th of September 2020 from which this letter emanated. Her evidence was that the decision was taken to turn down the request so as not disappoint the Complainant by giving false optimism. There was a discussion about the request. It was rejected based on the information given but it was clear that the Board wanted more information and that the Board needed to take advice. However, in the letter of the 16th of September 2020 no information was requested, no indication was given that the Respondent needed time to take advice and most importantly no reassurance was given regarding the possible termination of the Complainant’s employment whilst information was being gathered and advice being sought. The letter was, as it was described by the Complainant’s counsel, an “outright refusal”.

The Complainant also gave evidence as to the stress she experienced as she faced into the mid-term break without knowing whether she would be forced to retire within a few days after school re-commenced following that mid-term break. As the school was closed the Complainant felt it necessary to retain a solicitor whose letter to the Respondent, she was advised to hand deliver. There can be no doubt that this was a stressful experience for the Complainant.

The Respondent was at all material times aware that the Complainant was concerned about losing her employment for financial reasons and this was the case even before her Formal Request as she had discussed the issue with the then Principal before then. The Complainant repeatedly complained of stress in her correspondence in September and October of 2020, in May of 2021 and in September 2021 in the endorsement to the WRC Complaint form initiating the present claim. I find that the Complainant suffered significant stress when her Formal Request was refused outright and that this stress was at a similarly high level when she found herself, as she put it, “in limbo”, during the mid-term break in October 2020 with her 65th birthday rapidly approaching on the very week when school was due to resume.  This stress was avoidable and would have been avoided had the Respondent taken a more considered and pro-active approach to the Complainant’s retirement.

The Respondent accepted that there had been a delay in addressing the issues raised by the Complainant. However, the Respondent did not accept or fully accept responsibility for this delay.

One of the reasons put forward for the delay in relation to the decision leading to the Second Retirement Date was the complexity of the legal situation and the fact that advice was required regarding the issues raised as to the Complainant’s status under the FEMPI legislation and other references to comparable employments in the public sector. The implication of the latter argument is that the delay was contributed to by the Complainant in that she raised issues which unnecessarily complicated and elongated the process undertaken by the Respondent of obtaining legal advice and getting to grips with managing the issue of the Complainant’s retirement. Whilst it is plausible that some of the issues raised by the Complainant complicated and perhaps elongated the process of obtaining advice, I find that it would be unfair to attribute any fault in relation to the delay to the Complainant who appears to have done her best in difficult circumstances to take such advice as she could and to resist as best she could, the outright refusal of her Formal Request by the Respondent and the imminent approach of the mid-term break and of her 65th birthday. As against this I must examine the conduct of the Respondent whose initial reaction to the Formal Request was an outright refusal and only when the decision was challenged does it appear that advice was sought.

It is clear that the issue which was presented to the Board was not only legally complicated but also involved the gathering of information, including importantly, the existence of any custom or practice followed previously in the school, and in particular the fact that other ancillary staff, who had reached retirement age during an academic year, had been permitted to work until the end of that school year before retiring. This issue was not considered by the Board in its meeting on the 15th of September 2020 before the refusal of the Formal Request was issued. In fact, it was the Complainant who raised the issue and as it transpired, correctly. 

I find that the Respondent fell into error when it turned down the Complainant’s Formal Request. The Respondent should have been aware that the Complainant’s retirement was approaching but did engaged with the Complainant well in advance of her 65th birthday or at all. Before refusing her Formal Request the Respondent did not appraised itself of any customs and practices and did appraised itself (by means of advice if necessary) of the relevant law, policy and best practice applicable to mandatory retirement. The latter is of great significance since this area of law is dynamic in nature and is moving at a considerable pace in line with judgements of the European Union Court of Justice, European Union Legislation, Domestic Legislation (including the Employment Equality (Miscellaneous Provisions) Act 2015, increased human longevity and societal changes towards retirement generally. There was no evidence that the Respondent did any of the foregoing and the issue of her retirement was first raised by the Complainant who took the initiative and pursued the issue throughout the relevant time-period, with the Respondent taking a re-active rather than pro-active approach.

Even if the Respondent was been unaware that the Complainant’s contract might require amendment to reflect the changes wrought by the 2015 Act and specifically the amendment to Section 34 subsection (4), the Respondent had recourse to the Code of Practice on Longer Working which was issued in  2017. The purpose of this code is to focus minds on the issue of retirement, and it has at its core the principle of consultation with a view to reaching agreement with each individual employee.

The following quotation from the Code under the heading “The Retirement Process” encapsulates this purpose:

“It is good practice for an employer to notify an employee of the intention to retire him/her on the contractual retirement date within 6 — 12 months of that date. This allows for reasonable time for planning, arranging advice regarding people succession, etc. While the initial notification should be in writing, it should be followed up with a face-to-face meeting…”

Further on in the code, under the heading “Request to Work Longer Procedure” the following process is recommended:

“The employee should make such a request in writing no less than three months from the intended retirement date to be followed up with a meeting between the employer and employee. This meeting gives both the employee an opportunity to advance the case and allowing the employer to consider it. It is important that the employee is listened to and that any decision made is on fair and objective grounds.”

Whilst it was not contended nor is it the case that a departure or “breach” (if so formulated) of the Code of Practice can by itself constitute discrimination, I take the view that the issue of compliance or non-compliance with the Code is a factor which can be taken into account in an overall assessment of whether an employer’s handling of an impending retirement of an employee (such as the Complainant in the present case) constituted discrimination on the age ground. 

Whilst it would be unfair to say that there was no consultation between the parties at any stage (whether as recommended by the Code of Practice or otherwise) it is my finding that there was no consultation whatsoever prior to the initial refusal of the Complainant’s formal request. For her part the Complainant made her Formal Request for an extension of her work just under three months before her 65th birthday and the Respondent’s then Principal (Principal 2) accepted that the Complainant had raised the issue with her verbally before that time and thus the Complainant cannot be faulted for any delay in initiating the consultation process.

Against this backdrop it is apparent that the Respondent was totally unprepared for the Complainant’s retirement. The decisions taken, particularly in relation to the Initial and Second Retirement Dates would have been discriminatory had they been implemented and even though they were not, I find that the Complainant was placed under stress by the uncertainty which they created and this stress was exacerbated by the ‘eleventh hour’ nature of the decisions and the lack of consultation or information which preceded them.

I find that the bulk of the stress was experienced at the earlier stages of the events, the subject matter of the claim but that is not to say that the Complainant did not experience continuing stress thereafter due to the continuing uncertainty created by the delay in regularising her retirement. However, given the fact that the Complainant remained fit for and did in fact continue to work during that period, I conclude that the stress was not of sufficient severity to affect her general health and was probably of a lesser degree than the acute stress experienced in September and October of 2020.

The Respondent did not dispute that the Complainant experienced stress. Moreover, the Respondent did express regret for any stress caused albeit for the first time in the letter dated the 1st of June 2022 (which set the present retirement age). At the hearing the Respondent also expressed regret. I also accept the Respondent’s contention that it acted in good faith in the sense that it did not set out to or deliberately cause the stress suffered by the Complainant. Finally, I fully accept the submissions made by the Respondent’s counsel to the effect that the Respondent encountered significant challenges when attempting to fix the Complainant’s retirement age in compliance with the law when that law was both complex and dynamic.

In this particular case there are no economic losses and thus the award made is not expressed as representing any specific number of weeks or months of salary but rather is based on an assessment of the effects of the discrimination on the Complainant, which effects are not necessarily dependent on the level of remuneration earned in this or any job.  However, the annual salary is of relevance as it sets the maximum jurisdiction applicable which, (being two years’ salary pursuant to Section 84 (4) (a) (i)) in the present case, comes to a figure of €38,324. In measuring the compensation to be awarded I am mindful that the Complainant suffered a significant amount of stress in September, October and November of 2020.  I find that as matter of probability, this stress lessened as the process unfolded but nonetheless I also find that the issue of the uncertainty of the Complainant’s retirement remained a concern and was on the Complainant’s mind up until the 1ST of June 2022 when Retirement at age 70 (and to the end of that school year) was eventually clarified, a period of 1 year and some 9 months or so in total. It is also the case that the Complainant actively resisted all but the last of the decisions made regarding her retirement date - and with justification. Clearly the Complainant would have been spared any of this stress if the issue had been handled pro-actively, advisedly and in accordance with best practice by the Respondent well in advance of the Complainant’s 65th birthday.

Taking all of the above factors into account and doing the best that I can to measure a sum of compensation that is just and equitable having regard to all of the circumstances I assess compensation for the effects of the discrimination in the sum of €12,500 and the Respondent is directed to pay that sum to the Complainant pursuant to Section 84 (1) (c) of the Employment Equality Act 1998 as amended. 

In arriving at the above figure, I have had regard to the requirement set out in Article 17 of the Framework Directive that an award for a breach of the legislation should be “effective, dissuasive and proportionate”. I have awarded a sum in excess of a nominal sum to reflect the compensatory intent of the relevant statutory provisions where discrimination has been established which has caused stress. At the same time the award is designed to be dissuasive in its effect albeit that the necessity for the latter is lessened proportionately by the circumstances whereby the issue was legally complex, the delay was not intentional or deliberate and the measures themselves (which would have been unlawful had they been implemented or enforced) were not in fact implemented or enforced and no economic loss was sustained.

I further make an Order that the said sum is awarded for infringement of the Complainant’s statutory rights and shall not be liable to tax pursuant to the provisions of Section 182A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).

I am satisfied that the complainant was not harassed.

I am satisfied that the Complainant was not victimised.

The Complainant was discriminated against. The Respondent is ordered to pay the Complainant the sum of €12,500 by way of compensation for breach of her statutory rights.

Employment Equality Act, Sections 6, 8, 14A, 34 (4), 74, 85A, 77, 79, 84 - Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12E.L.R. 201 - Hallinan v. Moy Valley ResourcesDEC-S2008-025 - Minaguchi v Mr. Ray Byrne, T/A Wineport Lakeshore Restaurant - Discrimination on Age Ground – Several Retirement Dates set and altered – Boyle v. Minister for Education and Skills [2018] IESC - Retirement Dates not implemented – uncertainty created by setting different retirement dates – Uncertainty of Law relating to fixing retirement dates - Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017 (S.I. 600/2017) - Geraghty v. Revenue Commissioners ADJ-00000031 - Clarke v. Dublin South MABS ADJ-00028562 - A Senior Staff Nurse v. A Nursing Home (In Liquidation) ADJ-00027325 - Harassment on Age Ground – Victimisation – ESB International v Mumtaz  EDA1935 - Redress for Discrimination –– Compensation for Effects of Stress arising from discrimination - Framework Directive Article 17