Complainant

Respondent

Parties

Maurice  Dunphy

South Dublin County Partnership Company Limited By Guarantee

Representatives

Ruth Mylotte BL instructed by ÀIne Curran of  O'Mara Geraghty McCourt

Thomas Ryan of Peninsula

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-00053997-001

05/12/2022

The Complainant worked for the Respondent as an educational coordinator in the flexible training unit from January 2013. The Respondent, as a local development company, provides targeted community services to tackle social exclusion and poverty.

The flexible training unit provides education to a client base which is mostly long term unemployed and at risk in a number of different ways.

The Complainant’s contract provided for compulsory retirement at the age of 66 and he was due to reach that age on 11th of August 2022. On 28th of September 2021 the Complainant wrote to the Respondent requesting a contract extension. They refused his application in May 2022. In August 2022 the Complainant’s retirement took place.

The Respondent accepts that the Complainant’s contractual retirement clause is discriminatory in a  prima facie sense but they argue that the Complainant’s retirement was objectively justified by a legitimate aim and was therefore permitted under the act.

In the circumstances the Respondent advanced their case first.

The Respondent made oral submissions.

In 2022 the Respondent faced significant financial pressure as certain funding streams were ceasing and approximately thirty-nine staff were at risk of redundancy in the Respondent’s local employment scheme and jobs club. Five of these were redeployed to avoid redundancy.

The Complainant was highly thought of member of staff. However, as redundancies were approaching the Respondent believed it was important, for reasons of intergenerational fairness, to disallow any retirement extensions. At the time there was significant pressure from staff and their unions to minimise redundancies.  They had agreed to previous retirement extensions but structured those extensions to expire before any expected redundancies.

The Respondent was in particularly difficult financial state at the time and were trying to save jobs.

The Complainant’s barrister made written and oral submissions. The Complainant gave evidence under affirmation.

The Complainant explained why he wanted to extend his working life. He was very committed to education and the work of the Respondent. He came from a disadvantaged area and had gone abroad as a tool mechanic and pursued a long career in the engineering sector.

He decided to return home and retrain in the arts. He developed a second career in drama and education. He believes that drama is a powerful way of working with people who are suffering trauma. He has worked in a number of disadvantaged communities in Dublin and loves his work.  He feels that he still has a lot to give. He felt very let down, and very insulted by the actions of the Respondent. He misses working and has found it difficult to find work in the same field again. He began working as a community development youth worker about 6 months after he retired but found it very limiting.

The Complainant sought an extension nearly a year before his pending retirement. This request was made well before redundancies were being considered. An initial meeting with management took place on 13th of October 2021 and it was revealed that there were a number of staff applying to remain working past retirement.

The Complainant was told that the matter was before the board, however a number of board meetings occurred over the next months and no decision was made. The Complainant followed up five months later but still no decision had been made.

On the 19th of May the Complainant was told he was unsuccessful and that he would be required to retire. He was given a variety of reasons for the decision. He was told that there was a retirement clause in his contract and the Respondent was seeking to rely on this.  The “situation” with the LES and Jobs Club were also given as a reason. At that point he was offered no option to appeal the decision.  

The Complainant was confused about the Respondent’s decision. His service was not associated with the closing services and it was fully funded. He wrote to the Respondent asking for the objective justification and whether his role would continue to be performed. The Complainant was not given any immediate answer and was told the matter was being put to the board.

Following the next board meeting the Respondent wrote to the Complainant and stated that the objective justification for his retirement was his contract, the retirement policies and custom and practice.

The letter went on to say that the situation with the LES and Jobsclub affected the whole company as they might be heading towards a collective redundancy situation. However, the Respondent was still unclear as to why this was relevant in the context of the decision to compulsorily retire the Complainant.

A meeting was held on the of 21st of June 2023 with the then CEO. In that meeting the CEO was evasive in as to whether the Complainant was being denied the right to continue working so that another person could be redeployed into his role.

The Respondent decided to advertise the Complainant’s role internally. However, they did not allow the Complainant to apply. The role was advertised as full time 35 hours a week. Rather than the Complainant’s existing role of 28 hours a week.

The Respondent’s handbook provides that redundancies should take effect by reference to funding lines. In the circumstances the Complainant’s role should not have been affected.

An appeal meeting was held on the 29th of August. This appeared to be a listening exercise which simply reaffirmed earlier decisions. It was unclear whether the Respondent board members who heard the appeal had even been given the letter which detailed the Complainant’s grounds of appeal.

The legislation

Section 6(1) of the Act 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)

Subsection (2) goes on to specify the discriminatory grounds, including—(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “ the age ground”).

Section 34 of the Act provides that-

“Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees if —

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

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

Section 85A (1) of the Act provides: -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.

Deliberation and Findings

It is accepted that the Complainant has established primary facts to raise an inference of discrimination on the grounds of age. He was required to retire upon reaching the age of 66. Having established these facts, the burden of proof shifts to the Respondent to show that discrimination has not occurred.

This position was accepted by the Respondent in the hearing however they had also made written submissions which focused on the Complainant’s lack of a comparator and suggested he had not made out a prima facia case of discrimination. As this position contradicted their case as presented in the hearing, I have disregarded it. 

The Respondent has argued that the retirement was objectively justified by the legitimate aim of intergeneration fairness. This applied when it sought to limit redundancies of staff by ensuring the Complainant retired at the age outlined in his contract.   

However, on review of the evidence and in particular the correspondence between the Complainant and the Respondent it is unclear whether this objective justification of intergenerational fairness was actually given as a reason when the decision was made. In the decision to deny the Complainant any extension to his retirement and in the subsequent email clarifying the reasons for the decision, the potential for collective redundancies is presented as an unexplained context. The objective justification given is the Complainant’s contract and custom and practice. The evidence would later show that no such custom and practice was in place as the Respondent had already allowed extensions to their retirement age.

The failure, at the time of termination, to properly identify the objective justification which the Respondent now seeks to rely on is not simply an abstract procedural issue.

The test outlined in the legislation is based on two steps. The retirement must be objectively justified by a legitimate aim and the way the Respondent sets about achieving that aim must be proportionate and necessary.

As Lady Hale outlined in Seldon v Clarkeson Wright and Jakes:

Once an aim has been identified, it has still to be asked whether it is legitimate in the particular circumstances of the employment concerned. For example, improving the recruitment of young people, in order to achieve a balanced and diverse workforce, is in principle a legitimate aim. But if there is in  fact no problem in recruiting the young and the problem is in retaining the older and more experienced workers then it may not be a legitimate aim for the business concerned. Avoiding the need for performance management may be a legitimate aim, but if in fact the business already has sophisticated performance management measures in place, it may not be legitimate to avoid them for only one section of the workforce.

There are a number of broad aims under which a retirement can be objectively justified, and these are set out in well-established caselaw and in S.I. No. 600 of 2017 (the Code of Practice on Longer Working). Minimising redundancies could potentially be a legitimate aim which is objectively justified the refusal to extend the Complainant’s retirement age. This would likely either fall under the heading of succession planning or as the Respondent argues, intergenerational fairness. I take no definitive view on that issue for the reasons set out below.

In order to properly examine any aim and consider whether it was appropriate the Complainant should be properly notified of its existence. From the correspondence available from Summer 2022 it is never actually clear that the Complainant was being retired at 66 to allow for another person who was at risk of redundancy to take his job.  As such, it was never established by the Respondent that the Complainant’s retirement was an appropriate and necessary step to achieve this goal, that is to prevent another’s redundancy.

There may have been opportunities for the Complainant to remain on shorter hours or only performing specific tasks or even just remain for a short period in a handover capacity. These issues were never explored. Indeed, it was not clear at the time of the decision whether there was a suitable internal person ready to take up the role as they only advertised the role after the Complainant had been refused his extension. I also note that the hours associated with the Complainant’s role increased to 35 hours from 28 hour when he was retired. This has never been explained.

S.I. No. 600 of 2017 explicitly sets out that a process, whereby the worker being forced to retire is given the reasons and an opportunity to properly challenge them, should occur.

In the circumstances the Respondent has not rebutted the inference of discrimination and the complaint of discrimination is well founded.

Redress

The Respondent discriminated against the Complainant in refusing to allow him to continue working because of his age.

I believe they caused genuine upset and undermined the Complainant’s dignity when they excluded his input into the decision making process and when they failed to be upfront about the reasons for refusing his request for extension.

I also accept that the Respondent was under significant financial pressure. While I make no definitive finding as whether or not avoiding redundancies is a legitimate aim justifying retirement, it is obviously an admirable aim.

The Complainant has offered limited evidence of his attempts to work after being retired. He took a subsequent job, but it did not suit him.

In the circumstances I believe an award of approximately 7 months pay is appropriate. That is €25,000.

I find that the complaint is well founded and award the Complainant €25,000 in compensation.