Complainant

Respondent

Parties

John  Murphy

Bausch Health Ireland Limited

Representatives

Rachel Hartery SIPTU

Robin McKenna 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-00058650-001

04/09/2023

The Complainant alleges that the Respondent discriminated against him on grounds of age where they failed to renew his one-year fixed term contract. The Respondent states that his employment came to an end on the expiry of the fixed term contract and for no other reason.

The Complainant relies on his submissions and supporting documents. In addition the Complainant took the affirmation as gave his evidence as follows:

Upon commencing his employment, he was given a contract of employment dated 9th April 2011. He was never issued with a different contract. There is no retirement clause in that contract. He was never given a company handbook. He does have sight of it now but hadn’t seen it before today.

When he was approaching his 65th birthday, he approached HR, Teresa Farrell. He asked her if he could stay for another year. He was told that he could not. He then went to the Union and he spoke to them about that. Prior to all of that, his daughter on the 25.05.21 emailed the company asking about his retirement and if he could work on another three months. The Complainant accepted in cross examination that he knew he due to retire in October when he turned 65.  He said that everyone in the Country had to retire at 65.  

He filed a claim with the WRC mediation services. The result of that was that he could work for an additional year. He told the mediator that he wanted to work, and he is fit and healthy. The Respondent agreed to that. He was then offered a fixed term contract for one year. That contract is dated 19th October 2022. In that contract it stated “this contract is a post retirement fixed term for a term of 1 year commencing on 29/10/2022.  The parties agree that the normal retirement age within Bausch + Lamb is 65 years and it is agreed that the date of which you retire from your position in Bausch + Lamb is on the last day of the month where you reach your 65th birthday “ The Complainant agreed in cross examination that he knew the normal retirement age was 65. The contract is signed and dated 22/10/2022. However, the Complainant argues that within that WRC agreement there was no objective justification for the one -year fixed term contract or the lack of its renewal. The mediation agreement at 3(b) stated “this is to support longer working in line with the WRC code of practice on longer working and government and social policy”  That is accepted by the Complainant.

The Complainant was not happy with a part of the contract.  There were negotiations about that. It took a few weeks to resolve. Once it was resolved, he signed the agreement. It expired in October 2023. Before the end date of that contract, he emailed Shane Glackin. He didn’t reply. He then contacted Niamh Hyden. She was out of the office at the time but when she came back, she contacted him. He had a meeting with her. The meeting was in 21st August 2023. After the meeting he received a letter from Ms Hyland dated 21st August 2023. In summary the email stated that his contract will end by reason only of the expiry of your fixed term contract. The Complainant agreed with that but was not happy. He wanted to work on.

 The Complainant sent a second email asking for a reason as to why he couldn’t work for another year. Nothing came of that, and he retired in October 2023.

The Complainant loves his job, and he is very good at it. He doesn’t want to retire. His record is excellent. There is no reason as to why he couldn’t work on. The Respondent didn’t carry out any assessments to assess his capabilities. If they had they would have found that he was perfectly capable of doing the job.

 He did a pre- retirement course. It was outsourced. Following that he retired.

The Respondent rely on their submissions and supporting documents. In addition, they called a number of witnesses whose evidence is summarised below.

Niamh Hyden – took the affirmation and gave her evidence as follows:

Ms. Hyden in the HR director. She joined last summer and is there 11 months now.

The company work 24/7. There are multiple shift patterns ranging from 12 hours shift patterns, 8 hours shift patterns and weekend cycles and there are day roles too.  Ms. Hyden did not know Mr. Murphy. Mr. Murphy was on a post retirement fixed term contract.

 She received two emails from him in relation to his desire to stay on with the Respondent. Both emails were in July 2023.  He offered to undergo medicals. That is something the company do not do as it could be deemed to be discriminatory. When he contacted Ms Hyden, he was informed that a second fixed term contract would not be issued. His one-year fixed term contract was due to expire Oct 2023.  His employment ended due to the expiry of his fixed term contract and for no other reason.

The Complainant knew that his retirement age was 65. He knew that from the start of his employment.  That was also set out in the agreement reached in the WRC.

There are seven employees on post retirement fixed term contracts. There are three due to start them this year. There are over 1600 employees on site. Workforce planning is an ongoing task. It is reviewed monthly. In the next twelve months there are 25 people who are due to reach 65. Up until 2029 there are 161 people who will reach the age of 65. There are health and safety considerations involved in that. The work is physical and that needs to be factored in. The Respondent also look at intergenerational fairness. They try to preserve the dignity of older workers. Succession planning is massively important for the Respondent. The Respondent has to have a training plan to support that. That requires forward planning.

The Complainant alleges that he was discriminated against by the Respondent on ground of age when they failed to renew his one-year fixed term contract. The Respondent disputes the allegation stating that the only reason for the termination of the Complainant’s employment was due to the expiration of the fixed term contract.

In Melbury Developments Limited v Arturs Valpeters IEDA09171 it was stated:

"...Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85 places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule. "

In Southern Health Board v Mitchell the Labour Court considered the extent of the evidential burden which the Complainant, under the Acts, must discharge before a prima facie case can be made out.  It provided inter alia as follows: 

“The first requirement is that the Complainant 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 Complainant must prove, on the balance of probabilities, the primary fact from 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 provide that there was no infringement of the principle of equal treatment”

The Complainant was due to retire upon reaching his 65th birthday. That was known to him from the start of his employment.  Following negotiation at the WRC it was agreed to give the Complainant a fixed term one year contract. The Complainant signed that agreement following some talks about one clause in the contract. The Complainant signed the agreement in the full knowledge of the fact that it was a one-year fixed term contract. There is no obligation on the Respondent to renew a fixed term contract.  I am satisfied that the Complainant’s employment ended because of the expiry of the fixed term contract and for no other reason. The Complainant took issue with the fact that the Respondent failed to carry out any type of assessment to establish his fitness for work. There are circumstances where that might be relevant had he not entered into a fixed term contract. However, in circumstances where the Complainant entered a fixed term contract and his employment ended on the expiry of that contract, they are not relevant.

In all of the circumstances I find that the complainant has failed to establish, on the balance of probabilities, a prima facia case of discrimination on the grounds of age therefore the complaint fails.

The complaint fails.