Complainant

Respondent

Parties

Patrick  O' Rafferty

National University Of Ireland, Galway

Representatives

Robin Hyde Alastair Purdy and Co

Kevin Feighery Ibec

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-00041305-001

30/11/2020

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

CA-00041305-002

30/11/2020

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant gave his evidence under affirmation while three witnesses for the respondent gave their evidence under affirmation.  The representatives were provided with the opportunity to cross examine each witness.  Two observers were facilitated with attendance at the hearing.

At the start of the overview of the complainant’s case, his representative indicated that the Employment Equality complaint on the disability ground, CA-00041305-002, was withdrawn.

CA-00041305-001 - Employment Equality complaint on the Age ground

The complainant started work with the respondent in January of 1981. The complainant was out of work while awaiting surgery and initially indicated his intention to return to work upon the successful completion of the surgery. In September 2020 the complainant emailed the respondent to indicate that he was considering retirement from his role. This e-mail was sent to the pensions and investments manager who in turn referred the correspondence on to the HR department. The respondent inquired as to what the complainants intended last date of employment was to be and the complainant indicated mid November 2020.

On 15 October 2020 the complainant wrote to his line manager withdrawing his intention to retire he indicated that perhaps the decision had been made in haste and indicated that he would be fit to return to work for a further four years. He also indicated that he expected to make a full return to duties.

On 19 October 2020 the complainant received an e-mail from the pension and investment manager indicating that they were not in a position to accept the request to withdraw the notice of retirement and indicated that his retirement date remained 15 November 2020.  The complainant replied indicating his intention to challenge the decision to retire him. This was responded to and the response stated that his decision to retire was made by himself and was sent to two persons in HR and copied to his union representative. It was also indicated that HR had acted upon his direction as advised in his e-mail.

The complainant wrote to the HR section that two weeks had elapsed since the e-mail from the pension and investment manager and that their delay was unacceptable. The complainant noted that he had never sent a formal intention to retire to the respondent.

The complainant submitted that he was unlawfully discriminated against by the fact that he was involuntarily retired at 65 despite his retirement age being 70. The complainant submitted that this case is not concerned with the refusal to withdraw the retirement request was in itself discriminatory but rather the case being made is whether the refusal to withdraw the request, in the absence of a genuine reason, converts a once voluntary retirement, to that of an involuntary retirement. The respondent then subsequently retired the complainant on that basis this has the effect of a mandatory retirement which has not been objectively justified by a legitimate aim and any such retirement should be deemed unlawful and discriminatory.

The complainant submitted that it is not in dispute that he inquired and outlined his intention to retire, and that the respondents position appears to be that they were unable to reverse the decision with no visible evidence to prove this. The complainant submitted that it was entirely open to the respondent to reconsider his retirement however they refused to do so for a number of reasons including and primarily that the complainant's pay scale was at a higher level than that of new entrants and it was cheaper to enforce his retirement. 

The complainant submitted that he withdrew his intention to retire six weeks before his notice elapsed and that the fixed term worker who was in place to cover the complainants role was still operating in that position. It was noted that although the position had been advertised, no interviews or formal appointments had been made by the respondent at that time.

The complainant submitted that the unjustifiable refusal to withdraw the complainant’s retirement request means that his retirement was done involuntarily despite other workers being permitted to work on 70.

The complainant is seeking reinstatement to his former role, or where such is not feasible reengagement on terms no less favourable than those previously held by him. He is also seeking backpay from the date he was forced to retire and furthermore he is seeking compensation for stress and suffering caused to him by the respondent.

The complainant submitted that the compensation awarded must be effective proportionate and dissuasive following the principles enunciated by the ECJ. The complainant further noted that the Labour Court decision in Calor Teoranta v Michael McCarthy (EDA089) Is relevant where the court took into account both past and future pecuniary loss and the effects of discrimination and awarded the maximum amount of compensation where age discrimination was deemed to have occurred by reason of forced retirement.

CA-00041305-001 - Employment Equality complaint on the Age ground

The respondent agreed that the complainant was in its employment from January 1981 and ceased employment on the 15th of November 2020 by reason of retirement. The complainant was absent uncertified sick leave from September 2018 in February 2020 the respondent wrote to the complainant advising him of his contractual retirement date which was due to occur in May 2020. Correspondence ensued regarding employees right to work until 70 years of age and the complainant indicated that he wished to stay on after the age of 65. This was confirmed in writing to him in April 2020 in correspondence where the respondent noted that he wished to continue working.

As the complainant remained out on sick leave, he was informed that the income continuance plan would cease on his 65th birthday in accordance with the nature of the policy. This information was provided to him in July 2020. 

The respondent submitted that in September 2020 the complainant notified his line manager that he wished to retire. His line manager then contacted him to ascertain his current health situation and to ask him whether he wanted to proceed with his retirement. The complainant assured his line manager that this is the course of action he wished to take. Two days later the HR unit acknowledged receipt of his intention to retire and some days after contacted the complainant to seek confirmation regarding his last day of service. At this time, he was also advised that once he  firms up his date of retirement the HR section will begin to process his request.

The respondent submitted that the complainant emailed the respondent on the 24th of September indicating that he was looking at a retirement date of mid-November and also stating that he would therefore be giving about two months’ notice from his original e-mail.

The respondent submitted that the fixed term employee who was covering the complainant’s role was advised that their contract would end mid-November as the complainant was retiring and the role was being advertised for permanent filling. the respondent began filling they're now vacant position.

In mid-October the complainant emailed the respondent indicating that he was reconsidering his intention to retire as proposed. The response to the complainant indicated that as he had submitted his notice of retirement of his own accord and as he had received communication from the pension section in regards his decision to retire, they were not in a position to accept his request to withdraw notice.

The respondent submitted that the complainant then informed it of his intention to challenge this decision. In response the respondent reiterated that the decision to retire was made by the complainant. The respondent confirmed to the complainant that he had emailed his line manager about his retirement on the 15th of September, he also had a lengthy discussion with his line manager regarding his intention to retire. At the end of October, the complainant submitted his pension declaration to the respondent and at the end of November the complainant through his solicitors submitted his complaints to the Workplace Relations Commission.

The respondent submitted that the complainant has not established a prima facie case of discrimination and accordingly has failed in taking this complaint.  The respondent noted Section 85A of the Employment Equality Acts in relation to the burden of proof and cited Southern Health Board v Theresa Mitchell DEE011 [2001] ELR 201 and Melbury Developments v Arters Valpeters EDA/0917 supporting its contention that the claimant must first establish facts from which it may be presumed that discrimination may be inferred. The respondent’s contention is that it the complainant failed to do so.

The respondent submitted that the complainant submitted that this case is not concerned with the refusal to withdraw the retirement request rather whether the refusal to withdraw the request in the absence of a genuine reason converts a once voluntary retirement to that of an involuntary retirement. 

The respondent submitted that the complainant contract of employment was terminated voluntary by his retirement from the position, he was not pressurised or coerced in any way by the respondent to retire. The respondents submitted that the fact that the complainant was over the age of 65 was irrelevant to the respondent. The respondent accepts that the complainant sought to retract his notice of retirement however it notes that there is no obligation in contract to compel the respondent to acquiesce to this request.

The respondent submitted that in the Labour Court case of Charles Shinkwin v Donna Millet ED/03/33 the court stated that 

“a resignation is a unilateral act which if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation. Where adequate notice is given the contract is generally terminated in accordance with its terms and since there is no repudiation the acceptance of the resignation by the employer is not required in order to determine the contract. … On the basis of these authorities it seems clear that an employee may withdraw a notice of resignation where special circumstances exist relating to the context in which the decision to resign was taken. The resignation must be withdrawn within a reasonable time which will probably be quite short the test of reasonableness is an objective one decided in the circumstances of the case (Kwik-Fit (GB) v Linehan). It is also clear from the authorities that where an employee freely and deliberately decides to resign and subsequently changes his or her mind the employer is under no obligation to accede to an offer to withdraw the resignation or to even consider such an offer.”

The respondent submitted that in the present case the complainant served his notice of intention to retire on 15 September 2020. The respondent noting the complainant’s previous intention to work until the age of 70 contacted the complainant to discuss his decision to retire and also sought confirmation in writing a second time in relation to his retirement date. In such circumstances there were no special circumstances prevalent as in the case of Shinkwin V Millet or any indication that the decision to retire was taken in the heat of the moment.

CA-00041305-001 - Employment Equality complaint on the Age ground

Oral testimony

The first witness for the respondent was the complainants line manager.  He confirmed that the complainant expressed a wish to work beyond 65 and confirmed that he dealt with him regarding any outstanding sick certificates.  He confirmed that he was managing him in accordance with the sick leave policy and was very taken aback by his request to retire. He forwarded the request to HR but called the complainant to try to meet with him to check if he was OK. He confirmed that he was still waiting for his procedure and seemed disappointed to be retiring.  He confirmed the outstanding annual leave with him and confirmed his date of retirement.  He stated that there was never an indication of a change of mind only frustration with the number of forms and sick certs et cetera. He also indicated that in terms of the replacement there was some urgency to it as the fixed purpose contract of the person covering the role was coming to an end.

Under cross examination he confirmed that usually notice to retire can be up to three months but it can be as little as one month. He accepted that everyone has a right to withdraw a resignation but noted that this was not within his gift as a line manager.

The second witness was the director of human resources. She confirmed that employees can remain up until their 70th birthday and it was usually as a result of her request or a notification from an individual or a manager that the date of retirement was given. She confirmed that the income continuance plan stops at age 65. 

The witness indicated that once the respondent had been notified of the complainant’s desire to retire, the paperwork was completed quite quickly. She noted that when the issue was brought up the line regarding a replacement, the post was immediately deemed replaceable, it was considered a front-line post and was signed off on almost immediately.  The complainant’s paperwork processing the retirement was completed by about September 25 and HR were hopeful of an internal filing of the post. 

The witness noted that there were no concerns raised by the complainant prior to his intention to retire and that the decision to withdraw the intention to retire was made some four weeks later.  She offered to meet with the complainant, but the offer was not taken up.

Under cross examination the witness confirmed that a pension statement is automatically generated when an intention to retire is received but it does not act as a barrier to staying on. She confirmed that contracts generally say one month's notice needs to be given however three months’ notice is usually required for academic posts. The witness confirmed that the post replacement was signed off by finance on the 9th of October and approved around the 12th. She confirmed that the complainant signed the pensions statement but signed it under protest.

The witness also noted that his union representative was in copy on the original retirement notice and that once the complainant agreed the date of his retirement by email the following week this started the process and not the issuing of the pensions statement.  She indicated that a number of things were taken into account when not accepting the withdrawal of the intention to retire including that the complainant waited for four weeks before indicating any doubts, and that that the post was backfilled or at least the notice to do so was issued.

Consideration:

Having considered the matters before me I note that it is common case that the complainant indicated that he wished to stay on beyond the age of 65 he did so early in the year. When he sought to retire, he was contacted by his line manager who had a lengthy conversation with him regarding his decision. He outlined his reasoning to his line manager who then sent his request up the line. A number of days later the complainant reiterated his intention to retire on a given date. The responded acted on the complainants request and according to the witness from HR, the paperwork was completed which gave effect to the complainant’s retirement within a short space of time.

The complainant indicated that he wished to withdraw that decision and it is the complainant's contention that by not accepting this withdrawal, in effect the respondent involuntarily retired him. The respondent indicates that it considers that the contract came to an end when the complainant indicated his intention to retire and confirmed that intention and the date of his retirement with the hour section. The respondent provided case law from the Labour Court regarding resignations and the courts deliberation in Shinkwin is clear: where a resignation has been given special circumstances must exist to override the resignation decision and any option must be exercised within a short timeframe. The position is analogous with the intention to retire.

In this case it is clear that the complainant intended to retire, and that the respondent took his intention at face value but followed it up in conversation and e-mail with the complainant. Once it was satisfied that the complainant did intend to retire it proceeded to process the retirement. in accordance with the case law, the respondent is not required to accept a withdrawal of the indication to retirement.

However, this case has been taken under the Employment Equality Act on the age ground. No submission has been made that the refusal to accept the withdrawal of the retirement notice on the part of the respondent was based on his age. No suggestion that someone of a different age would have been treated any differently was made in relation to this case. The complainant has not established that anyone of a different age was or would have been treated any differently. It was not put to any of the witnesses that the decision not to accept the withdrawal of the resignation was based on the complainant's age.

Section 85 of the employment equality acts sets out the burden of proof in claims of discrimination. It requires that where in any proceeding’s 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 it is for the respondent to prove the contrary. In the case of Melbury, the Labour Court held that a complainant must establish facts that are of sufficient significance to raise a presumption of discrimination. It held that they must be established as facts on credible evidence. It further noted that mere speculation or assertions, unsupported by evidence cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 

Having regard to all the written and oral evidence presented in relation to this case, I find that the complainant has not established facts from which discrimination on the age ground in relation to him has occurred. All that has been raised amounts to mere speculation or assertions that the decision not to accept the withdrawal of the intention to retire was based on the age ground. I find that it does not fall upon the respondent to prove the contrary.  Accordingly, I find that the complainant was not discriminated against.

CA-00041305-001 - Employment Equality complaint on the Age ground

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that complainant was not discriminated against.

Employment Equality Act – Age ground – mere speculation – complainant not discriminated against.