EDA2534

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00047616 (CA-00058650-001)

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 12 August 2024. A Labour Court hearing took place on 12 March 2025.

The following is the Determination of the Court.

DETERMINATION:

Background to the Appeal

This is an appeal by Mr John Murphy (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00047616, dated 5 July 2024) under the Employment Equality Act 1998 (‘the Act’). Notice of Appeal was received in the Court on 12 August 2024. The Court heard the appeal in Waterford on 12 March 2025.

The Factual Background

The Complainant was employed by Bausch Health Ireland Limited (‘the Respondent’) as a General Operative in the contact lens plant in Waterford. His employment with the Respondent commenced on 9 April 2011. His weekly gross pay was €480.00 and he also received two annual bonuses. The Complainant worked a twenty-four hour week, at weekends on rotating day and night shifts.

The Respondent operates a normal retirement age of sixty-five. The Complainant reached that age in October 2021 and retired at the end of that month in accordance with the Respondent’s established practice at the time. The Complainant, however, had requested in May 2021 to work beyond the Respondent’s normal retirement age. His request was initially refused as the Respondent did not have a longer working policy in place at the time. Ultimately, however, the Complainant and the Respondent reached an agreement under which the Respondent offered him a one-year post-retirement fixed-term contract of one year’s duration which commenced on 29 October 2022 and was due to expire on 29 October 2023.

The Complainant made a written request to the Respondent on 19 July 2023 and again on 21 August 2023 for a further one-year fixed-term contract of employment to extend his working time beyond the duration of his post-retirement one-year fixed term.

Following a meeting to discuss the Complainant’s request, the Respondent’s HR Director wrote to him on 21 August 2023 to set out the Respondent’s decision to refuse that request:

“Dear John,

I refer to your recent request of an extension to your 1 year Fixed Term Contract.

You are currently employed on a Post Retirement Fixed Term Contract for a term of 1 year which commenced on 29/10/2022 and is expiring on 29/10/2023. While the normal retirement age within Bausch & Lomb is 65 years, last year through mediation we agreed to offer a 1 year fixed term post-retirement contract, which was to support longer working in line with the WRC Code of Practice on Longer Working, and Government and Social Policy, which you availed of. We are not in a position to offer an extension to your contract beyond this date.

Your fixed term contract will cease by reason only of the expiry of the fixed-term on the 29/10/23.

…..”

The Complainant submits that the Respondent’s refusal to accede to his request constitutes an act of discrimination on the age ground. He referred his complaint under the Act to the Workplace Relations Commission on 4 September 2023. The Adjudication Officer held that the complaint was not well-founded:

“The Complainant was due to retire on reaching his 65th birthday. That was known to him from the start of his employment. Following negotiations at the WRC it was agreed to give the Complainant a fixed term one year contract. The Complainant signed the 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 that the Complainant’s employment ended because of the expiry of fixed term contract and for no other reason.”

Burden of Proof

Section 85A(1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

“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.”

This Court – in its determination in Southern Health Board v Mitchell [2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by section 85A and held:

“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.”

It follows that a complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA 21/2008, this Court stated in this regard:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Discussion and Decision

A member of the Respondent’s Human Resources team confirmed, in response to a question from the Court, that the Respondent employs staff, including general operatives, on fixed-term contracts from time-to-time. She also confirmed that that there have been occasions on which those fixed-term contracts have been renewed. It is self-evident that the employees so engaged on fixed-term contracts -including those that were extended or renewed - were hired when of an age that is under the Respondent’s normal retirement age and were, at the material time, therefore, younger than the Complainant was when he was offered and accepted a fixed-term contract which was not extended notwithstanding his request to do so. It follows that the Complainant was prima facie treated less favourably than younger comparators on the age ground. The Court’s view in this regard is reinforced by the absence of supporting justification in the HR Director’s letter of 21 August 2023 for the Respondent’s refusal to accede to the Complainant’s request to be given a further fixed-term contract. The letter in question contains the following bald statement by way of explanation for the Respondent’s decision: “We are not in a position to offer an extension to your contract beyond this date.” The defence to the within claim offered by the Respondent at the hearing of the within appeal amounted to nothing more than a reiteration of that position and, therefore, in the Court’s view does not rebut the inference that can be drawn from the agreed facts to the effect that the Complainant was treated less favourably on grounds of age when the Respondent simply declined his application for a further fixed-term contract without any meaningful explanation for so doing.

Having regard to the foregoing, the Court finds that the appeal succeeds and the decision of the Adjudication Officer is set aside.

The Court measures the compensation payable to the Complainant for the effects of the discrimination visited upon him at €2,000.00, which equates to approximately one month’s gross pay.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
AR	______________________
4th April 2025	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Aidan Ralph, Court Secretary.