Complainant

Respondent

Parties

Helen  Reilly

Silvergrove Nursing Home Limited

Representatives

Self-Represented

Ms. Siobhan McGowan, Alastair Purdy & Co. Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00047607-001

10/12/2021

The Complainant commenced employment with the Respondent on 10th July 2000. The Complainant remains a permanent, full-time employee of the Respondent.

On 10th December 2021, the Complainant referred the present complaint to the Commission. Herein, he alleged that the Respondent had discriminated against her on the grounds of “age”. In particular, she submitted that the manner by which her potential retirement was discussed constitution discriminatory treatment. In denying these allegations, the Respondent submitted that they were duty bound to consult with the Complainant regarding a contractual retirement age and the meeting in question was conducted in a fair and reasonable manner.

A hearing in relation to this matter was convened for, and finalised on, 8th August 2022. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

The Complainant gave evidence in support of her complaint under affirmation. A Director for the Respondent likewise gave evidence under affirmation. All evidence was open to cross-examination by the opposing side.

No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.   

The Complainant stated that she was a long-standing employee of the Respondent. She stated that she was employed as a chef and enjoyed her role, in particular the social aspect of the same.

The Complainant stated that as she approached her retirement age, the Respondent sent her a letter enquiring as to her position as to the same. As the Complainant felt well able to continue in the role, and she enjoyed the social aspect of the same, she stated that she wished to stay. This request was accepted without question by the Respondent.

In 2021, the Complainant was asked to attend a further meeting in respect of this issue. During the meeting, for the first time, issues in relation to the Complainant’s ability to complete the role and knowledge regarding nutrition were raised. This caused the Complainant a great deal of concern as she ensured that her knowledge was up to date and that she understood that she was performing well in her role. During this meeting, a representative for the Respondent made enquiries as to the Complainant’s personal finances. This line of questioning took the Complainant entirely by surprise and caused her a great deal of concern. She stated that the only basis for these questions was her age and that they would not be asked of a younger person. She stated that she had given the Respondent no cause for concern regarding her ability or conduct throughout her employment, and that she felt that she was being removed from her job solely on the basis of her age. She stated that, at the time, she was well-able to continue in her role and wished to do so well beyond July 2021.

The Complainant commenced employment on 10th July 2000. At all times, her role was described as that of “chef”. At the outset of her employment, the Complainant signed an extensive set of contractual documentation. The contract of employment, as executed by the parties, stated that the normal retirement age for the Respondent is 65.

When the Complainant approached this date, the Respondent issued correspondence setting out the date of the proposed retirement and enquiring as to whether the Complainant wished to apply to extend her employment. By response, the Complainant stated that she wished to extend her employment, and as a consequence of the same, she was issued with a one-year extension to her contract.

When this extension was due to expire, a director of the Respondent again corresponded with the Complainant, enquiring as to whether she wished to further extend her contract. When the Complainant answered that she would, a meeting was arranged in relation to the same for 9th July 2021. This meeting was attended by the Complainant, the Director and a HR Consultant employed by the Respondent.

During this meeting, the Complainant again requested an extension to her contract. In particular, she wished for this extension to exist until such a time as she would receive the state pension. A discussion ensued in relation to the same, with the Respondent stating that they understood that the Complainant could receive the state pension at 66, whilst she believed it would be 67. In addition to the foregoing, the Complainant stated that she enjoyed the social aspect of her employment and did not wish to retire at that point in time. Having regard to these circumstances, the Respondent offered the Complainant a further extension of three months, with the matter to be reviewed thereafter. No decision was made in relation to the same at the meeting, with the Complainant stating that she wished to take advice in relation to the same.

On 12th July 2021, the Respondent issued correspondence enquiring as to whether the Complainant wished to accept the offer or reconvene the hearing. Shortly thereafter, the Complainant commenced a period of certified sick leave. On 12th August 2021, the Complainant stated that she did not agree with the Respondent’s record of the meeting 12th July and confirmed that she was not well enough to give a response to the Respondent’s offer.

In circumstances whereby the extension to the Complainant’s contract had almost expired, and she indicated that she unwell, the Respondent extended the Complainant’s contract of a further six months, bring the termination date to 14th February 2022. In circumstances whereby the Complainant again failed to state her position in relation to her potential retirement, her contract was further extended in February 2022, with the Complainant remaining on long-term sick leave on the date of the hearing.

By submission, the Respondent stated that the Complainant was aware at all times of the Respondent’s position regarding retirement. They submitted that they sought to engage with the Complainant in good time in relation to her retirement plans. On foot of such discussion the Complainant received two extensions to her contract. While the Respondent did proposal a shorter extension in July 2021, this was a proposal and could be contested by the Complainant. Notwithstanding the same, the Respondent submitted that they did, in fact, extend the Complainant’s contract until the date of the hearing and she remained an employee of the Respondent. In such circumstances, the Respondent submitted that the Complainant had not established the primary facts from which an inference of discrimination could be drawn. As a consequence of the same, the Respondent submitted that the Complainant’s application should fail.

Section 6(1)A of the Employment Equality Act defines “discrimination” in the following terms,

“…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)…which-

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned”

Section 6(2)(F) lists “age” as one such ground.

Regarding the burden of proof for such complaints, Section 85 allocates the probative burden between the parties. In particular, Section 85(A)(1) provides 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 matter of Southern Health Board -v- Mitchell [2001] E.L.R. 201 the Court set out the now well-established test in determining whether the probative burden shifts by application of this subsection. In particular, the Court held that,

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant 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 a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

Section 6(2A)C of the Acts (as amended) provides that,

“Offering a fixed term contract to a person over the compulsory retirement age for that employment or to a particular class or description of employees in that employment shall not be taken as constituting discrimination on the age ground if—

(i) it is objectively and reasonably justified by a legitimate aim, and

(ii) the means of achieving that aim are appropriate and necessary.”

Section 34(4) further provides that,

“…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.”

Statutory Instrument 600 of 2017 or the Industrial Relations Act 1990 (Code of Practice on Longer Working)(Declaration) Order 2017, under the heading “The Retirement Process” states that,

“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 which should focus on addressing the following:

·       Clear understanding of the retirement date and any possible issues arising;

·       Exploration of measures (subject to agreement) which would support the pathway to retirement, for example flexible working, looking at alternative roles up to the date of retirement;

·       Transitional arrangements in regard to the particular post; and

·       Assistance around guidance and information.”

In the present case, it is agreed that the Complainant contract was subject to a normal retirement age of 65. Approaching this date, the Complainant requested and received a one-year extension to the same. It is apparent that the Complainant had no difficulty with this development and, when that year was coming to an end, sought a further extension for another year.

The issue at hand arises regards the meeting between the parties in July 2021. Here, the Complainant has taken issue with the line of questioning adopted by the Respondent. She states that, for the first time in her lengthy career, issues regarding her knowledge and capability were raised. She submitted that these questions arose solely due to her age and that a younger person would not have been subjected to the same.

From the Respondent’s point of view, they submitted that as part of their retirement process, they had a duty to consult with the Complainant regarding her intentions and their requirements. They stated that no concrete decisions regarding the Complainant’s future had been made at that point and that any such decision would be made with the input of the Complainant.

Having reviewed the relevant evidence in this regard it is clear that the Respondent was entirely within their rights to call the Complainant to a meeting to discuss the issue of her retirement. It is further apparent that the tone of this meeting was exploratory, with the Respondent setting out their requirements for the future and seeking to establish the Complainant long and short terms plans regarding her continued employment. The Complainant has taken issue with some of the questions asked during this process, however in this regard, the Respondent has a right to seek certain information as to make an informed decision regarding a potential objective justification for compulsory retirement, if matters were to proceed in that direction. While I accept that exploring these issues might be uncomfortable for the Complainant, and in this regard she is correct that they only arise due to her age, this exploration is required in order for the Respondent to make an informed decision regarding her future. The Complainant has alleged that the Respondent was perhaps indelicate in the manner in which they handled the process, however this does not, of itself, constitute discrimination on the grounds of age. In addition to the foregoing, I note that no decision was made at the meeting in question, with the same being rightfully adjourned so as to allow the Complainant to receive third party advice. I note thereafter that the Respondent did not in fact make any permanent decision without the Complainant’s input, and that she remained an employee of the Respondent by the date of the hearing.

Having regard to the totality of the evidence presented, I find that the Complainant has not established the primary facts which may raise a presumption of discrimination. As a consequence of the same, I find that the Complainant was not discriminated against in the course of her employment and consequently her application fails.

I find that the Complainant was not discriminated against in the course of her employment and consequently her application fails.

Retirement, Consultation, Discrimination