EDA253

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00038784 (CA-00049781-001)

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 26 November 2023. A Labour Court hearing took place on 17 December 2024.

The following is the Determination of the Court.

DETERMINATION:

1Background to the Appeal

 This is an appeal by Colm Costello (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-0038784 CA00049781--001 dated 17 October 2023) under the Employment Equality Act 1998 (‘the Act’).  The Complainant’s Notice of Appeal was received in the Court on 26 November 2023. The Court heard the appeal in Dublin on 17 December 2024.

The complaint was lodged with the WRC on 20 April 2022. The cognisable period for the purpose of the Act is 21 October 2021 to 20 April 2022.  The Adjudication Officer held that the complaint was not well founded.

2 Summary of Complainants submission

The Complainant submitted that his complaint is that he was discriminated against on the ground of age. He further submitted that he believed that section 8 of the Act is a standalone provision and is not prejudiced by the discriminatory grounds defined in section 6. It was his belief that the Court was not confined to hearing complaints arising from one or more of the nine grounds if the complaint was grounded in section 8 of the Act. He submitted that this belief was based on the fact section 8 (5) of the Act differs from sections 8(6), (7) and (8) which contain the caveat “on any of the discriminatory grounds”. As this caveat is not contained in section 8 (5) a complaint under that section is not limited to the nine grounds and can be on any ground.

The Complainant submitted that he retired from working with the Respondent in 2018 aged 62. He was employed as a lecturer in Mechanical Engineering. Since his retirement he had worked for the Respondent on two occasions. On the second occasion in December 2019, he was employed on a short-term contract as a Research Assistant on an Enterprise Ireland Innovation Voucher project.

The Complainant submitted that the alleged act of discrimination occurred on 21 October 2021. On 20 October 2021 he travelled to the college at the invitation of the project co-ordinator for the industry centre to consider taking on a short term project for an Enterprise Ireland project. The proposed project matched his skill set and availability and he agreed to do it. The college representative informed him that he would put the paperwork through and set up a meeting with the client.  The following day 21 October 2021 he received a phone call from the project co-ordinator saying he had been advised not to recruit him due to some HEA directive around rehiring retirees and the need for special HEA approval.

It was the Complainants’ submission that the requirement for special approval was discriminatory on the age ground. He submitted that his comparator was a hypothetical person who was 45 and also a colleague who he knew was under 50 and had resigned. Neither of those comparators would require special approval from the HEA to take up the position he was offered.   Further correspondence ensued and he was advised that it could take two months to make a special case in line with the procedures to get approval. The task itself was only for five weeks. The Complainant submitted that there was no positive outcome to the correspondence from his viewpoint. He submitted that Employment Control Framework for the Higher Education Sector 2011-2014 includes clauses which are discriminatory against retired former employees. This led to his not being employed whereas someone who was 45 would have been.  This was discriminatory treatment on the basis that he was a retired employee.

3 Summary of Respondents submission

The Complainant had been identified as a suitable candidate for the project. However, the Respondent is required to seek approval from the Higher Education Authority (HEA) in accordance with the Employment Control Framework 201-2014 which at that time had not been replaced and was still in operation. From past experience they were aware that process could take up to two months and the expected length of the project was six weeks.  They were prepared to make the application, but the Complainant indicated that he did not want them to do that. In any event the project never went ahead in TUD. The Complainant was aware of the process as a similar request was submitted in respect of his re-employment in June 2021 and approval was received on 25 August 2021. The Respondent refutes any suggestion that the Complainant was discriminated against on the age ground or any ground. He was not treated less favourably than any other retired employee. It was their submission that they followed the HEA’s framework as was appropriate. They offered to liaise with the client and to submit the paperwork to the HEA which the Complainant did not agree to. It is the Respondent’s submission that the Complainant has failed to establish a prima facia case of discrimination on the age ground.

4 Relevant Law

6.Discrimination for the purposes of this Act

(1)

For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

(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 marital status (in this Act referred to as “the marital 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”).

(3)

Where—

(a)

a person has attained the age of 65 years, or

(b)

a person has not attained the age of 18 years,

then, subject to section 12(3), treating that person more favourably or less favourably than another (whatever that other person's age) shall not be regarded as discrimination on the age ground.

(4)

The Minister shall review the operation of this Act, within 2 years of the date of the coming into operation of this section, with a view to assessing whether there is a need to add to the discriminatory grounds set out in this section.

s. 8 Discrimination by employers etc.

Discrimination in Specific Areas

8.Discrimination by employers etc.

(1)

In relation to—

(a)

access to employment,

(b)

conditions of employment,

(c)

training or experience for or in relation to employment,

(d)

promotion or re-grading, or

(e)

classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

(2)

For the purposes of this Act, neither an employer nor a provider of agency work shall be taken to discriminate against an agency worker unless (on one of the discriminatory grounds) that agency worker is treated less favourably than another agency worker is, has been or would be treated.

(3)

In subsections (4) to (8), references to an employee include references to an agency worker and, in relation to such a worker, references to the employer include references to the provider of agency work.

(4)

A person who is an employer shall not, in relation to employees or employment—

(a)

have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or

(b)

otherwise apply or operate a practice which results or would be likely to result in any such discrimination.

(5)

Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—

(a)

in any arrangements the employer makes for the purpose of deciding to whom employment should be offered, or

(b)

by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different.

(6)

Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a)

the same terms of employment (other than remuneration and pension rights),

(b)

the same working conditions, and

(c)

the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.

(7)

Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to training or experience for, or in relation to, employment if, on any of the discriminatory grounds, the employer refuses to offer or afford to that employee the same opportunities or facilities for employment counselling, training (whether on or off the job) and work experience as the employer offers or affords to other employees, where the circumstances in which that employee and those other employees are employed are not materially different.

(8)

Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds—

(a)

the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or

(b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.

5 The Burden of Proof

Section 6 (1) of the Act clearly sets out that for discrimination under this Act to occur it must be on one of the nine grounds set out in subsection (2). The Court does not accept the Complainants submission that this requirement does not apply to section 8 (5) because the words “on any of the discriminatory grounds” are not citied in that subsection.

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”.

6 Discussion and Decision

The Court finds that the Complainant has failed to establish a prima facie case of discrimination on the age ground.  The following facts of this case are not disputed.  The Complainant being identified as a suitable person for the project and the requirement to seek sanction for his re-employment as he is a retiree. The fact that he had previously in 2019, on two occasions been rehired post his retirement albeit the correct procedure may not have ben followed on a least one of those occasions. The fact that the Respondent had indicated a willingness to talk to the client to see if they would await the outcome of the HEA process. The fact that the Complainant was not agreeable to the Respondent submitting the application to the HEA and the fact that the project actually never went ahead within TUD.

It was also not disputed that retirement could occur in a number of ways, retirement on grounds of ill health at any age, cost neutral requirement from age 50, 60 to 70 normal retirements, with mandatory retirement at 70.

 In response to a clarification sought by the Court as to what the difference was between previous rehires when he was 62/63 and retired and this rehire, the Complainant stated that it was not linked to his age it was to do with the approval process required for retired employees to be rehired.

The Court determines that the Complainant has not established a link between this rehire policy and his age and therefore his appeal must fail.

The appeal fails. The decision of the Adjudication Officer is upheld.

 The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
AR	______________________
6th January 2025	Deputy Chairman

NOTE

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