RECENT EQUALITY TRIBUNAL DECISIONS
Employment Equality Decisions Not Upheld
Complaint of discrimination on the age ground fails
DEC-E2015-039: McGuinness v Maynooth Mission to China Inc. t/a Columban Missionaries
Grounds/Issues: Discrimination, age, extension of contract
The Complainant alleged she had been discriminated against on the age ground as she was not allowed work beyond the age of 66.
The Complainant had 18 years’ service with the Employer. She was not issued with a Contract of Employment when she originally commenced employment in November 1993. However in October 2010 the Complainant was furnished with a Contract of Employment. This stipulated that the retirement age was on the complainant’s 65th Birthday. The Complainant did not agree to this Contract and at that time she was just 5 months from her 65th Birthday. Therefore she did not sign acceptance of this Contract. Other Employees of the Respondent were allowed to work beyond the age of 65 and at least two Employees were 70 years old and still working with the Respondent at that time.
The Respondent argued that there was a Collective Agreement with SIPTU in 1997 regarding terms and conditions of employment, including retirement age. However SIPTU argued that as a number of Employees were working beyond the age of 65 that the Collective Agreement was not adhered to by the Employer. Also that it was custom and practice to allow Employees to work beyond the age of their 65th Birthday.
The Complainant was informed that her employment would cease on her 65th Birthday. The Complainant requested to work beyond her 65th Birthday and she was issued with a Fixed-Term Contract of Employment for a period of 12 months, bringing her to age 66. She was notified prior to her 66th Birthday that her employment would cease on that date. Her employment ended on 29th February 2012.
The Respondent argued that in relation to the fixing of a mandatory retirement age of 65 years, the Complainant was precluded from making any claim - because the claim was out of time and was not made in the complaint form as submitted. The Respondent argued that the Complainant’s submission did not satisfy the burden of proof that she was treated differently or that if she was treated differently that the different treatment was less favourable and /or that the Respondent was not legally allowed to set different retirement ages for its Employees.
In issuing its decision the Tribunal made reference to the Employment Equality Act which provided that ‘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 grounds’. The Tribunal in making its decision made clear that the Complainant’s complaint related to the issue of her failure to secure an extension of her 1 year Fixed Term Contract of Employment that operated from 1st March 2011 to 1st March 2012 and found the complaint of discrimination on the age ground failed.
The Employment Equality Acts 1998-2012 prohibit any unfavourable treatment by an Employer based on any of the nine protected grounds. No discrimination should occur in relation to these grounds, including age. The Equality (Miscellaneous Provisions) Act 2015 (Commencement) Order 2015 has recently been published online and compulsory retirements in Ireland now need to be objectively justified. This is a significant departure from current practice, and one which Organisations should not dismiss out of hand but rather plan for accordingly.
Employment Equality Decision Upheld
Employee awarded €25,000 following age discrimination
DEC-E2015-144: Donal O’Leary -v- Mayfield Community Enterprises Ltd
Grounds/Issues: Discrimination & age
This dispute involved a claim by Mr Donal O Leary that he was discriminated against by Mayfield Community Enterprises ltd on grounds of age, in terms of section 6(2) of the Employment Equality Acts 1998 and 2008 in relation to his dismissal, by being forced to retire at age 65.
It was submitted that the Complainant commenced work as a community enterprise supervisor in Northside Community Enterprise on September 1, 1994. He relocated to Mayfield in 1996 and was the sole Employee of Mayfield Community Enterprises ltd on the date of his dismissal .His employment was funded by Fas (Dept. of Social Protection) as part of its support for the government’s community employment scheme. He maintained continuity of employment throughout his tenure and held a contract dated 29/10/2012 which described him as full time and permanent.
The Complainants’ representative submitted that there was no fixed retirement policy in his employment. He told the Tribunal, that sometime around his 65th Birthday (Sept 2012), the Complainant approached one of the Dept. of Social Protection Supervisors, Ms Unna O Donoghue. He asked whether she could extend his tenure as he had seen other CE Supervisors benefit from this arrangement on an individual basis. He named a comparator from a North Cork CE scheme.
He received an inconclusive response and was told that it was “unlikely “.He was told verbally that Fas had a policy that community employment supervisors would not be funded after the age of 65. Mr O Leary continued to work until one week short of his 66th birthday. In or around July 2013, the Complainant was informed by the Dept of Social Protection Supervisors that his employment would cease one week before his 66th Birthday. On 11/9/2013, Mr O Leary received a letter from the Chairperson of Mayfield Community Enterprises:
“It is with regret that we have to inform you that as of 20/9/2013 your employment with the above organisation will cease. This is due to circumstances beyond our control. However may we wish you every success in your future career”
The Employer did not attend the Hearing. However, the Chairman of Mayfield Community Enterprises, Mr Tony Walsh wrote to the Tribunal on 16th June 2015. The letter stated that Fas had withdrawn funding when Mr O Leary retired. It outlined that the Board had instructed the accountant to wind up the company and disperse remaining funds.
“On advice from DSP Head Office unfortunately we are not able to fund the legal costs incurred. Reason being, the CE Procedures Manual at that time ( Sept 2013) stated :All CE participant and Supervisors “ Terms and Conditions of Employment “ should include a clause stating that participants must retire on the Friday prior to their 66th birthday”.
In issuing its decision the Tribunal found the Complainant did not have any knowledge of either a handbook or of a fixed retirement age of either 65-66.
The Respondent had ample opportunity to inform the Complainant of a requirement that he retire at the age of 65 or 66 over the duration of his employment. No evidence was adduced of the Complainant having been so informed or having been provided with any document from which such a requirement could have been discerned. There was no express term in his conditions of employment requiring him to retire at either. In these circumstances, the Tribunal found that the Respondent had not fixed a retirement age in respect of the Complainant and that he was dismissed because of his age. The Complainant was awarded €25,000 by way of compensation.
It is vital for Organisations to ensure that the inclusion of a compulsory retirement age in employment contracts serves a legitimate aim or purpose. The Organisational means taken to achieve such a legitimate aim or purpose should always seek to be appropriate, proportionate and objective given the particular circumstances. It is also noteworthy for Organisations that an Employee’s contractual retirement age may contrast to the retirement age per the rules of the occupational pension scheme which he or she may be a member of, which is separate again to the issue of eligibility to receive the State pension.
As outlined within the McGuinness v Maynooth Mission to China Inc. t/a Columban Missionaries case, the Equality (Miscellaneous Provisions) Act 2015 (Commencement) Order 2015 provides that compulsory retirements in Ireland now need to be objectively justified. This is a significant change from current practice, and one which Organisations plan for accordingly.
Complaint of discrimination on the age ground fails
DEC-E2015-039: McGuinness v Maynooth Mission to China Inc. t/a Columban Missionaries
Grounds/Issues: Discrimination, age, extension of contract
The Complainant alleged she had been discriminated against on the age ground as she was not allowed work beyond the age of 66.
The Complainant had 18 years’ service with the Employer. She was not issued with a Contract of Employment when she originally commenced employment in November 1993. However in October 2010 the Complainant was furnished with a Contract of Employment. This stipulated that the retirement age was on the complainant’s 65th Birthday. The Complainant did not agree to this Contract and at that time she was just 5 months from her 65th Birthday. Therefore she did not sign acceptance of this Contract. Other Employees of the Respondent were allowed to work beyond the age of 65 and at least two Employees were 70 years old and still working with the Respondent at that time.
The Respondent argued that there was a Collective Agreement with SIPTU in 1997 regarding terms and conditions of employment, including retirement age. However SIPTU argued that as a number of Employees were working beyond the age of 65 that the Collective Agreement was not adhered to by the Employer. Also that it was custom and practice to allow Employees to work beyond the age of their 65th Birthday.
The Complainant was informed that her employment would cease on her 65th Birthday. The Complainant requested to work beyond her 65th Birthday and she was issued with a Fixed-Term Contract of Employment for a period of 12 months, bringing her to age 66. She was notified prior to her 66th Birthday that her employment would cease on that date. Her employment ended on 29th February 2012.
The Respondent argued that in relation to the fixing of a mandatory retirement age of 65 years, the Complainant was precluded from making any claim - because the claim was out of time and was not made in the complaint form as submitted. The Respondent argued that the Complainant’s submission did not satisfy the burden of proof that she was treated differently or that if she was treated differently that the different treatment was less favourable and /or that the Respondent was not legally allowed to set different retirement ages for its Employees.
In issuing its decision the Tribunal made reference to the Employment Equality Act which provided that ‘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 grounds’. The Tribunal in making its decision made clear that the Complainant’s complaint related to the issue of her failure to secure an extension of her 1 year Fixed Term Contract of Employment that operated from 1st March 2011 to 1st March 2012 and found the complaint of discrimination on the age ground failed.
The Employment Equality Acts 1998-2012 prohibit any unfavourable treatment by an Employer based on any of the nine protected grounds. No discrimination should occur in relation to these grounds, including age. The Equality (Miscellaneous Provisions) Act 2015 (Commencement) Order 2015 has recently been published online and compulsory retirements in Ireland now need to be objectively justified. This is a significant departure from current practice, and one which Organisations should not dismiss out of hand but rather plan for accordingly.
Employment Equality Decision Upheld
Employee awarded €25,000 following age discrimination
DEC-E2015-144: Donal O’Leary -v- Mayfield Community Enterprises Ltd
Grounds/Issues: Discrimination & age
This dispute involved a claim by Mr Donal O Leary that he was discriminated against by Mayfield Community Enterprises ltd on grounds of age, in terms of section 6(2) of the Employment Equality Acts 1998 and 2008 in relation to his dismissal, by being forced to retire at age 65.
It was submitted that the Complainant commenced work as a community enterprise supervisor in Northside Community Enterprise on September 1, 1994. He relocated to Mayfield in 1996 and was the sole Employee of Mayfield Community Enterprises ltd on the date of his dismissal .His employment was funded by Fas (Dept. of Social Protection) as part of its support for the government’s community employment scheme. He maintained continuity of employment throughout his tenure and held a contract dated 29/10/2012 which described him as full time and permanent.
The Complainants’ representative submitted that there was no fixed retirement policy in his employment. He told the Tribunal, that sometime around his 65th Birthday (Sept 2012), the Complainant approached one of the Dept. of Social Protection Supervisors, Ms Unna O Donoghue. He asked whether she could extend his tenure as he had seen other CE Supervisors benefit from this arrangement on an individual basis. He named a comparator from a North Cork CE scheme.
He received an inconclusive response and was told that it was “unlikely “.He was told verbally that Fas had a policy that community employment supervisors would not be funded after the age of 65. Mr O Leary continued to work until one week short of his 66th birthday. In or around July 2013, the Complainant was informed by the Dept of Social Protection Supervisors that his employment would cease one week before his 66th Birthday. On 11/9/2013, Mr O Leary received a letter from the Chairperson of Mayfield Community Enterprises:
“It is with regret that we have to inform you that as of 20/9/2013 your employment with the above organisation will cease. This is due to circumstances beyond our control. However may we wish you every success in your future career”
The Employer did not attend the Hearing. However, the Chairman of Mayfield Community Enterprises, Mr Tony Walsh wrote to the Tribunal on 16th June 2015. The letter stated that Fas had withdrawn funding when Mr O Leary retired. It outlined that the Board had instructed the accountant to wind up the company and disperse remaining funds.
“On advice from DSP Head Office unfortunately we are not able to fund the legal costs incurred. Reason being, the CE Procedures Manual at that time ( Sept 2013) stated :All CE participant and Supervisors “ Terms and Conditions of Employment “ should include a clause stating that participants must retire on the Friday prior to their 66th birthday”.
In issuing its decision the Tribunal found the Complainant did not have any knowledge of either a handbook or of a fixed retirement age of either 65-66.
The Respondent had ample opportunity to inform the Complainant of a requirement that he retire at the age of 65 or 66 over the duration of his employment. No evidence was adduced of the Complainant having been so informed or having been provided with any document from which such a requirement could have been discerned. There was no express term in his conditions of employment requiring him to retire at either. In these circumstances, the Tribunal found that the Respondent had not fixed a retirement age in respect of the Complainant and that he was dismissed because of his age. The Complainant was awarded €25,000 by way of compensation.
It is vital for Organisations to ensure that the inclusion of a compulsory retirement age in employment contracts serves a legitimate aim or purpose. The Organisational means taken to achieve such a legitimate aim or purpose should always seek to be appropriate, proportionate and objective given the particular circumstances. It is also noteworthy for Organisations that an Employee’s contractual retirement age may contrast to the retirement age per the rules of the occupational pension scheme which he or she may be a member of, which is separate again to the issue of eligibility to receive the State pension.
As outlined within the McGuinness v Maynooth Mission to China Inc. t/a Columban Missionaries case, the Equality (Miscellaneous Provisions) Act 2015 (Commencement) Order 2015 provides that compulsory retirements in Ireland now need to be objectively justified. This is a significant change from current practice, and one which Organisations plan for accordingly.
The Employment Equality Acts 1998 to 2012, outlaw discrimination in work related areas such as pay, vocational training, access to employment, work experience and promotion. Cases involving harassment and victimisation at work are also covered by the Acts.
Employees or Ex-Employees who feel they have been discriminated against may refer a complaint to The Equality Tribunal through Workplace Relations Customer Services within 6 months of the occurrence of the act of discrimination. The Director of the Tribunal may extend this to a maximum of 12 months, if the complainant shows that there is reasonable cause to do so.
The nine grounds on which discrimination is outlawed by the Employment Equality Acts are as follows: Gender, Civil status, Family status, Sexual orientation, Religious belief, Age, Disability, Race colour, nationality, ethnic or national origins, Membership of the Traveller community.
Employees or Ex-Employees who feel they have been discriminated against may refer a complaint to The Equality Tribunal through Workplace Relations Customer Services within 6 months of the occurrence of the act of discrimination. The Director of the Tribunal may extend this to a maximum of 12 months, if the complainant shows that there is reasonable cause to do so.
The nine grounds on which discrimination is outlawed by the Employment Equality Acts are as follows: Gender, Civil status, Family status, Sexual orientation, Religious belief, Age, Disability, Race colour, nationality, ethnic or national origins, Membership of the Traveller community.
Adare Human Resource Management is one of Ireland’s leading Employment Law and Human Resource Management Consultancies. Our Equality and Diversity services include:
www.adarehrm.ie
- Equality and Diversity Audit and Healthcheck
- Review and Development of Policies and Procedures - Dignity at Work, Anti-Harassment and Sexual Harassment
- Management and Employee Training - Dignity at Work, Anti-Harassment and Sexual Harassment
- Investigations - independent investigations on behalf of Organisations in line with the relevant legislation and codes of practice.
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