Complainant

Respondent

Parties

Zhelana  Pencheva

Freshway Foods

Representatives

  Self

Hannah Rowe , 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-00065984-001

14/09/2024

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

CA-00065985-001

14/09/2024

The Complainant commenced employment on 18/03/2010.  The Complainant transferred to the Respondent under the Transfer of Undertakings regulation in October 2013.  She was employed as a General Operative and was paid €448 gross per week.  The Complainant retired on 19/09/2022 and received a Post Retirement Fixed Term Contract on 20/09/2022 and a second such contract on 20/09/2023 and this contract expired on 20/09/2024 and was not renewed.  The Complainant submitted her complaint of discrimination on the ground of age to the WRC on 14/09/2024.

The Complainant, who represented herself,  gave evidence on affirmation.  She alleges that she was discriminated on the ground of age because her fixed term contract as not renewed as she had reached the age of 67. The Complainant submits that the Respondent’s justification of strategic workforce planning is not acceptable but was used as a cover not to renew her contract further.  The Complainant believes that her continued employment would have no impact on the succession of any of her colleagues.

The Complainant also believes that she was subjected to discriminatory treatment when the Respondent sent her for a “full medical examination” before her 65th birthday and before her first fixed term contract was issued.  The Complainant submits that she never had any health complaints, but this decision was related to the fact that she was reaching 65 years of age, and the Respondent had no reason to suspect any health-related issues.  The Complainant submitted that colleagues who were complaining about their own health were not aware of the Respondent’s occupational health service. It is the Complainant’s position that this shows that she was treated differently because of her age.  The Complainant also stated that the fact that she was required to sign a declaration that working for a further period was her own responsibility was further evidence that she was being treated differently due to her age.

The Complainant also submitted that she always believes that her age is her data, and this is protected.  If she did not disclose it then the Respondent would not know it.

The Complainant submitted that she is aware that the law prohibits discrimination on the grounds of age and that the law also requires the employer to have an objective justification when a person is not allowed to work due to their age.  The Complainant gave evidence that she looked at each of the areas and outlined her response to those.  In doing so it is her position that she was treated differently due to her age.

1.       Intergenerational Fairness.  The Complainant stated that in her work she would not impede the progression of younger workers. She wonders how this could happen as she was not in a commanding role.

2.       Motivation and Dynamism:  The Complainant’s evidence was that she did not lose any of the drivers which motivate her.  Her energy and inspirations remain the same and she was not in a role that would not allow anyone to be promoted.

3.       Health and Safety:  The Complainant submitted that she was not engaged in a safety critical occupation or a role that required a high level of physical strength.

4.       Creation of Age Balanced structure at work:  The Complainant submits that she was part of a team with employees of different ages and who were able to work smoothly without any hint of what their ages are.  The Complainant stated that her understanding is that this area is intended to create a “balance between young and old employees”.

5.       Personal and professional dignity.  The Complainant’s evidence was that she “would sooner disrespect myself, than my colleagues, so they go first”.  The Complainant stated that her altruistic drivers are her priority.

6.       Succession Planning:  the Complainant submits that she never had a negative impact on the Respondent’s succession planning.  She believes that the opposite is the case as she has always aiming to work well and continue working for the Respondent.

In response to some questions from the Adjudication Officer the Complainant confirmed that she did not have any evidence to show that another employee was allowed to work beyond the age of 67 years.  She had no comparator.  The Complainant also confirmed that she had signed the various contracts and also signed a receipt for the Respondent’s employee handbook.

Cross examination – Complainant:

The Complainant was cross examined by Ms Rowe on behalf of the Respondent.  She confirmed that she was not aware of any other employee who was permitted to work beyond the age of 67.  She stated that she was not aware if anyone had got an extension beyond that age.  The Complainant agreed that she did not have any evidence to show that another employee was treated more favourably that she was.

The Complainant confirmed that the Respondent’s handbook had specifically stated that the retirement age was 65.  She confirmed that she formally retired when she reached that age and agreed that the Respondent provided her with a Post Retirement Fixed contract on 20/09/2022 and that she also received a second such contract on 20/09/2023.  The Complainant agreed that the expiry date on her second contract was 19/09/2023.  The Complainant also agreed that she was not given a further contract.  She confirmed that she received an invitation to attend a Retirement Planning Meeting on 31/05/2024 but she opted not to attend.

The Complainant confirmed that she attended a meeting with Ms Ita McDonagh, HR Director and MS Gabrielle McManus, Payroll Manager on 08/07/2024.  It was put to the Complainant that the purpose of this meeting was to discuss her  retirement and to confirm that the Respondent could not extend her contract due to workforce planning.

The Complainant confirmed that she had no further points to outline at the hearing except to state that she does not understand how the legislation will work if an employer can outline what they see as objective justification for not keeping an employee like her on.

The Respondent is a food manufacturing business and employs approximately 450 people. There are 45 different nationalities and the Respondent treats all employees equally in every aspect of their employment.  The Complainant transferred to the Respondent under a TUPE arrangement in October 2013 having commenced employment with her previous employer on 18/03/2010.   The Complainant retired from the Respondent on 19/09/2022 and she received two Post Retirement Fixed Term Contracts the second of which expired on 19/09/2024 and was not renewed.

It was submitted on behalf of the Respondent that the Complainant in her complaint form and submissions refers to the Social Welfare (Miscellaneous Provisions) Act 2023 which enables employees to defer their state pension until the age of 70 and that the Respondent has breached this legislation by not allowing her to work until she reached the age of 70 years.  The Act does not provide a right to remain in employment until they reach the age of 70.  It is the Respondent’s position that they acted in line with S.I. 600/2017 Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017 and issued two Post-Retirement Fixed Term Contracts to the Complainant.

The Complainant’s contract was terminated on 19/09/2024 when it  came to an end and this was not a discriminatory dismissal.

In a legal submission on behalf the Respondent submitted that the Complainant is required, in the first instance, to present facts from which it can be inferred that the Complainant was treated less favourably than another person is, has been, or would be treated on the basis of the discriminatory ground cited.  The Respondent refers to the case of Margetts v Graham Anthony & Company Limited, EDA038 where the Labour Court stated:

“The law requires the Complainant to establish facts from which it may be inferred that discrimination has taken place.  The appellant must, on the balance of probabilities, prove those facts from which such an inference may be drawn.  When these facts are established to the satisfaction of the Court, the onus shifts to the Respondent to show on the balance of probabilities that it did not discriminate against the appellant. The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination.  The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred”.

The Respondent also noted the further case of Cork City Council v Kieran McCarthy, EDA0821 which further elaborated on the burden of establishing a prima facie case of discrimination.

The Respondent also relies on the case of Melbury Developments v Arturs Valpeters, EDA0917 which looked at how the burden of proof operates for the Complainant:

“This requires that the 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 speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Respondent also relies upon the protection afforded to it under Section 34(4) of the Employment Equality Act, 1998-2015 to fix a mandatory retirement age that is objectively justified and that workforce planning is appropriate and necessary.  It is the Respondent’s position that it has met these requirements in its objective justification and that the means of achieving these aims are proportionate in the circumstances.  In addition the Respondent submits that S.I. 600/2017, (Code of Practice on Longer Working) states:

“Essentially the law is now that compulsory retirement ages set by employers must be capable of objective  justification both by the existence of a legitimate aim and evidence that the means of achieving that aim is appropriate and necessary...”

The Respondent facilitated the Complainant’s request to work beyond the age of 65.  She was issued with two Post Retirement Contracts and the Complainant accepted the terms and conditions outlined in the contract and in the employee handbook.  That contract specified the period of the contract and the Complainant was aware that her desire to continue working would not be facilitated after the expiry of her contract on 19/09/2024.  She was again made aware of this when she was invited to a retirement planning meeting in May 2024.

Evidence Ms Ita McDonagh, HR Director:

Ms McDonagh gave evidence on oath.  She confirmed that she is the HR Director with the Respondent and has held this role for four years.  Ms McDonagh confirmed that the Complainant’s contract of employment expired when it reached its expiry date.  All employees are aware of their retirement date which is included in their contract of employment.  Ms McDonagh confirmed that it is the Respondent’s policy that all employees are invited to a retirement planning day in advance of their retirement.  The Complainant was also invited to such a meeting but she did not attend.

Ms McDonagh gave evidence that it is unusual for the Respondent to issue post retirement contracts and she outlined that her figures show that of the five people who retired around in recent years three received a post retirement contract for one year and two employees retired at the age of 65.  Ms McDonagh confirmed that the Complainant asked on a number of times to have her contract extended and this was done.  She is the only employee ever to have received a second post retirement contract and Ms McDonagh stated that the Complainant was in fact treated more favourably that any other employee. 

Ms McDonagh confirmed that she held a meeting on 08/07/2024 with the Complainant and Ms McManus, Payroll Manager was also present.  At this meeting they discussed the Complainant’s retirement and that her contract would not be further extended due to workforce planning reason.  Ms McDonagh gave evidence that the workforce planning rationale was linked to the Respondent’s 5-year strategy and the need to balance the workforce in view of the exact skills required due to automation the amalgamation of roles.  Ms McDonagh confirmed that this is now in place.

Ms McDonagh confirmed that the Complainant was sent for an Occupational Health assessment.  The reason for this was that any employee who discloses a medical condition is sent for such an assessment to ensure that the Respondent is appropriately informed and advised.

Cross Examination – Ms Its McDonagh:

Ms McDonagh was cross examined by the Complainant.  She was asked how she became aware that the Complainant had a health issue.  She stated that she had previous absences and also had two absences in 2024 and as a result of this it was deemed prudent to make a referral.  The Complainant put it to Ms McDonagh that she never disclosed any medical condition. Ms McDonagh stated that the Respondent reserved the right to make such a referral if they had a concern about any employee.

Evidence – Ms Gabrielle McManus:

Ms McManus gave evidence on oath. She confirmed that she is the Payroll Manager with the Respondent.  She has been in this role for five years.  Ms McManus outlined details of her involvement with the Complainant.  She had multiple conversations with the Complainant in relation to her contract and retirement. She explained the company policy about retirement to the Complainant.  She also told the Complainant that a second contract post retirement was “most unusual” and that it would not be extended when that contract expire.

Ms McManus outlined that the company policy was that the retirement age was fixed at 65 years of age. If an employee requested a further one-year extension this request would be reviewed and decided.  Ms McManus confirmed that she outlined the policy to the complaint in an email on 25/05/2023.  Ms McManus outlined that she organised a meeting with the Complainant and Ms Ita McDonagh on 08/07/2024.  This meeting was held to explain the retirement policy to the Complainant and to confirm that when her second post retirement contract would come to an end it would not be extended any further.  The reasons for this were also outlined at the meeting.

The Complainant had no questions by way of cross examination for Ms McManus.

Evidence - Ms Emma Duffy:

Ms Duffy gave evidence on oath.  She confirmed that she is the HR Business Partner with the Respondent and she has been in this role since December 2022.  Ms Duffy confirmed that she was the person who issued the Post Retirement Contracts to the Complainant.  The second contract covered the period from 20/09/2023 to 19/09/2024.

The Complainant had no questions by way of cross examination for Ms Duffy.

Closing Submission:

In a closing submission on behalf of the Respondent, Ms Rowe stated that the Complainant had failed to establish a prima facie case of discrimination.  The Complainant confirmed that she did not have a comparator.  The evidence was that the Complainant was treated more favourably by the Respondent as she was the only employee who was issued with a second Post Retirement Contract.  The Respondent went beyond what they would normally do.  It was submitted on behalf of the Respondent that they acted in line with the provisions of S.I. 600/2017 Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017.

The Respondent submits that the Complainant was not dismissed.  Her employment terminated by virtue of the contract of employment which provided for an end date of 19/09/2024.  There was no evidence that this was a discriminatory dismissal.

The burden of proof rests with the Complainant to show that she was discriminated against on the grounds of age.   The Respondent’s normal retirement age is 65 and the Complainant was provided with two Post Retirement Contracts and her employment terminated on the basis of the mutually agreed period outlined in her contract.  The Respondent asserts that its refusal to grant a further extension on the grounds of strategic workforce planning constituted a legitimate aim and is reasonable and crucial for the Respondent’s business.

The Complainant submitted a complaint to the Workplace Relations Commission on 14/09/2024 that she was discriminated against by the Respondent  on the ground of age when she was not permitted to continue working after the age of 67.

The Respondent submits that the complaint is not well founded as no discrimination took place and that it had complied with its obligations under  S.I. 600/2017 Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017

In evaluating the evidence before me, I must first consider whether the Complainant has established a prima facie case pursuant to Section 85A of the Acts. The Labour Court has consistently held that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent.

Section 6 of the Employment Equality Act states:

“6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) 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) (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.]

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”)”.

This complaint is made pursuant to the Employment Equality Acts on the basis that the Complainant was discriminated by the Respondent because of her age. 

The onus of proof is on the Complainant to first establish a prima facie case of discrimination of, in this case, age, before the burden shifts to the Respondent to set out its defence. The principles were set out by the Labour Court in Southern Health Board v Mitchell(2001) DEE 011:

“(2) 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.

(3) Only if these primary facts are established to the satisfaction of the Court, and they are regarded as being of sufficient significance to raise a presumption of discrimination, does the onus shift to the Respondent to prove that there was no infringement of the principle of equal treatment Wallace v. South-Eastern Education and Library Board[1980] NI 38; [1980] IRLR 193 followed”.

Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022 at para 2-207 commenting on Mitchell:

“This test requires that facts relied upon by a Complainant must be proved by them to the satisfaction of the Tribunal or Court at the level of balance of probabilities and if proven, must be of sufficient significance as to raise an inference of discrimination. In the case before it, the Labour Court found, on the facts of the case, that the Complainant could not demonstrate superior qualifications and experience than the successful appointee and that she therefore failed to discharge the burden of proof that rested on her”.

Section 85A of the Acts states that where 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. 

I find that the Complainant has not made out a prima facie case that the Respondent did discriminate against her on the  ground of age within the meaning of Section 16 of the Acts.  The Complainant confirmed that she had no evidence to prove that another employee was treated more favourably because of his/her when they were 67 years of age.

CA-00065984-001:

Having considered the submissions of both parties and the evidence put forward at the hearing of this complaint, I find that the Complainant has not raised a prima facie (upon initial examination) case of discrimination on the grounds of age contrary to the Employment Equality Acts, 1998 – 2015.

I have decided that the Complainant was not discriminated against by the Respondent on the grounds of age.

CA-00065985-001:

The complainant confirmed that this was a duplicate complaint and it was withdrawn at the hearing on 05/02/2025.

Age discrimination.