Complainant

Respondent

Parties

John  Mooney

The Hairy Lemon

Complainant

Respondent

Anonymised Parties

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Representatives

 Dermot Duignan

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-00062989-001

23/04/2024

The Complainant, a 71 year old man, was employed as a Maintenance Operative by the Respondent and was paid EUR 400 per week. He had initially been employed as a Barman by the Respondent for over 20 years and was made redundant prior to being re-engaged in his new role in 2014. He stated that he was discriminatorily dismissed on age grounds in January 2024.

The Complainant stated that he was informed at a meeting in November 2023 that he would be dismissed at Christmas because the Respondent’s insurance had increased as a result of his age. He was also informed that there was a stipulation in his contract of employment that he had to retire at 66 years of age and that he had worked far beyond that.

He subsequently tried to contact Mr Peter Hanahoe, the owner, and was informed that he had to deal with Mr Niall Duff. On the day of his dismissal in January 2024, Mr Hanahoe came upstairs to the area where the Complainant was working, handed him an envelope, said “sorry about that John” and then walked down the stairs. When the Complainant opened the letter, he received formal confirmation of his dismissal. He then walked down the stairs and the Bar Manager asked him for his keys to the premises. He then left his employment.

The Respondent stated that the Complainant was told at a meeting in November 2023 that the position of Maintenance Operative was being made redundant. It was explained to him that the insurance premium for the company had gone up considerably over the previous year and that the Respondent would have additional insurance cost issues in relation to the retention of someone of the Complainant’s age for a position in maintenance. He was also told that the directors were worried with some of the physical aspects of his role and believed that an accident was waiting to happen. He was further informed that that the directors would provide additional details to him in due course. 

It was acknowledged that the Complainant did not receive any redundancy payment.

Section 6(1) of the Act provides, in relevant part, as follows: -

“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 ofparagraph (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—

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

Section 6(3(c) provides as follows:

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) of the Act provides for certain savings and exceptions relating to the family, age, and disability grounds. Subsection (4) of that Section provides: -

“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: -

85A.—(1) 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.

Findings:

The Respondent stated firstly that the Complainant had been informed there would be an insurance cost issue if he was retained in employment and that he was dismissed on the grounds of redundancy and not because of his age. This was contrary to the evidence of the Complainant who said there was no mention of redundancy and that he was informed that he was being dismissed because of his age.

Given that it was accepted by both sides that no redundancy payment was made to the Complainant however, I prefer the evidence of the Complainant and find that he has established a prima facie case of discrimination on the age ground. As the Respondent failed to present any written documentation or correspondence from their insurance provider to support the assertion that there were insurance cost issues around retaining the Complainant in employment because of his age, I did not consider whether the need to reduce insurance costs would constitute a legitimate aim under Section 34 (4) of the Act. In the absence of any other explanation from the Respondent to justify the Complainant’s dismissal, I find that they have failed to rebut the presumption of discrimination.

The Law

82.—(1) Subject to this section, the types of redress for which a decision of the F142[Director General of the Workplace Relations Commission] under section 79 may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:

(a) an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 3 years before the date of the referral under section 77(1) which led to the decision;

(b) an order for equal remuneration from the date referred to in paragraph (a);

(c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77;

(d) an order for equal treatment in whatever respect is relevant to the case;

(e) an order that a person or persons specified in the order take a course of action which is so specified

(f) an order for re-instatement or re-engagement, with or without an order for compensation.

As set out above, I find that the Complainant has established a prima facie case of discrimination on the age ground, which the Respondent failed to rebut. 

In deciding on an award of compensation, I noted the impact of the discrimination on the Complainant and accept that, as a man of 71 years of age, he is unlikely to find work again.  I have also taken into account that the sanction must be “effective, dissuasive and proportionate” (Von Colson CJEU C14/83)

In all of the circumstances of this case, I decide that it is just and equitable to order the Respondent to pay to the Complainant compensation in the amount of €30,000.