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The Equality Tribunal today published their decisions for May 2014 including awards totalling €93,000 for employment equality decisions upheld or part upheld. In addition a member of the travelling community was awarded €1,000 under the Equal Status Acts for discriminatory treatment in respect of refusal of service. A full copy of the decisions are available by searching here http://www.workplacerelations.ie/en/search/?decisions=1&from=01/05/2014&to=31/05/2014&casetype=1&body=1.

In the first decision (DEC-E2014-031)Thomas O Mahony v Southwest Doctors on Call Limited (trading as Southwest) the claimant contended that he was dismissed on discriminatory grounds in that he was forced to retire from employment contrary to Section 6(2)(f) of the Employment Equality Acts 1998 (as amended).

Background

The claimant had previously taken a redundancy package from Eircom (where he was a Manager) and was approached by an other former Eircom employee to apply for the role of part-time Driver/Attendant with the respondent. The claimant contended that he was informed at interview he would not have to retire at 65 and he commenced employment on 31st October 2005 aged 61. He further submitted that retirement age was never mentioned at his induction or during his early years of employment and that contract he signed on 12th December 2005 did not include any reference to a retirement age. The claimant also provided witness statements of three people who worked beyond the age of 65.

When the recession hit, the respondent’s subvention from the HSE was cut and the claimant contended that one of the consequences of this was that employees were handed a new contract of employment with a new clause stating the normal retirement age was 65. The claimant did not sign the contract and subsequently on 16th February 2009 he received a letter from the respondent’s HR advisor stating…..”as already advised the current terms and conditions contained in your contract of employment are fully maintained…..”.

Despite the above written assurance the claimant was compulsorily retired on his 65th birthday which was the 23rd December 2009. The claimant also contended that he continued to enjoy excellent health; continued to train two teams (Gaelic football as well as hurling) and also had an unblemished work record. The respondent pointed to an advertisement placed during the recruitment campaign which provided “All Driver Attendants will have a full clean driving license and be aged between 25 and 65“. It also admitted it did not retain a copy of the complainant’s contract on file and that is the reason he was asked to sign a contract in 2008. The respondent further submitted that the retirement clause was agreed with SIPTU – of which the claimant was a member.

The respondent also wrote to a number of employees including the claimant noting that there would be structural changes in the organisation and offering enhanced early retirement or voluntary leaving programme. The claimant did not respond to the letter but ultimately the respondent contended that through the services of the LRC Conciliation Service, members of SIPTU were balloted and agreed in principle to the proposal for rationalisation and change in work practices. The respondent further contended that the claimant raised no grievance with his retirement and a very amicable meeting took place before he left.

In respect of objective justification, the respondent cited the case of Seldon v Clarkson Wright and Jakes: “It is true that the aims which the Employment Tribunal accepted as legitimate – the retention of associates, facilitating the planning of the partnership and workforce and limiting the need to expel partners by way of performance management – were directed to what could be regarded as being in the firm’s best interests. That in itself is not surprising, because firms such as Clarkson Wright and Jakes are in business and must organise their affairs accordingly. They are exposed to all the forces of competition in their chosen market. They are not a social service. This affects the way they choose to manage the partnership and other aspects of their workforce, just as much as it affects the way in which their business as a whole is conducted. But this does not mean that their aims cannot be seen, when viewed objectively, as being directly related to what is regarded as a legitimate social policy. I agree that the Employment Tribunal reached a sound decision on this point and that the aims which it identified were of a kind that, in terms of article 6 of the Directive were legitimate.” (Lord Hope, [2012] UKSC 16 paragraph 75)

In essence the respondent contended that whilst cost was factor, the retirement age of 65 was justifiable on health and safety grounds as drivers were required to load and unload the car on a daily basis and carry equipment for the doctors. The respondent also cited the case of Saunders v CHC Ireland where a helicopter winchman was forced to retire at 55 and the Tribunal accepted health and safety grounds as objective justification for compulsory retirement. The Equality Officer found that the claimant had a legitimate expectation (at least up to 2008) to work after his 65th birthday and similar to Donegal Count Council v Porter, McLaughlin, Mc Gonigal and Bredin the issuing of a different contract of employment (now containing a compulsory retirement age of 65) was an attempt by the respondent to unilaterally alter the claimant’s terms and conditions of employment.

The Equality Officer referred to Section 34(4) of the Employment Equality Acts which provides: Without prejudice to subsection (3) it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntary or compulsory) of employees or any class or description of employees. In referencing Donnellan v The Minister for Justice, Equality and Law Reform, McKechnie, J. stated: Any discrimination with regards to age must, as put by that Directive, serve a legitimate aim or purpose, and the means taken to achieve that purpose must be appropriate and should go no further than is necessary, i.e. they should be proportionate. The Equality Officer noted that the Tribunal had followed the decision Saunders v CHC, Paul Doyle v ESB International, Rosanna Nolan v Quality Hotel, O’Neill v Fairview Motors, Patrick Dunican and Thomas Spain v Offaly Civil Defence, McPhillips v ISS Facility Services and John Roche v Complete Bar Solutions. The Tribunal concluded that the claimant has established a prima facie case of discriminatory dismissal and the respondent therefore had to provide an objective justification. Per the Seldon decision the Equality Officer noted that the respondent was entitled to give a ‘business-centric’ justification for a compulsory retirement age but that the facts of that case differed here in that the respondent was not trying to retain younger people or plan for succession; it was simply trying to reduce headcount in the least expensive way. In respect of the health and safety justification, the Equality Officer noted that the respondent provided no evidence to demonstrate why the chosen cut-off point of 65 was appropriate and necessary especially when employees happily worked beyond it prior to 2008. Nor did they show evidence of exploring a more proportionate response to safety concerns e.g. sending employees over 65 for an annual health check or as in Georgiev v Tehnickheski Unviersitet offer the claimant a fixed term contract of employment after his 65th birthday. The equality officer concluded that the respondent failed to provide objective and reasonable justification for the fixed retirement age of 65.

Decision

1. The claimant was discriminatory dismissed on the grounds of age.
2. Had the claimant been made redundant rather than compulsorily retired, he would have obtained almost six month’s salary in redundancy. Therefore the Equality Officer concluded the equivalent of this at €12,000 to be most appropriate award.

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