Brian Mc Loughlin(represented by Cathy Maguire B.L. instructed by the Equality Authority) -v- Bus Eireann(Represented by Michael Carroll, Solicitor)
1.1 The case concerns a claim by Mr. Brian Mc Loughlin that Bus Eireann directly and indirectly discriminated against him on the age ground in terms of section 6(2)(f) of the Employment Equality Act, 1998 in contravention of section 8 of the Act in relation to access to employment.
2.1 The complainant availed of a voluntary severance package with effect from 31 October 2001. On 16 October 2001 before leaving the company, the complainant asked to be considered for a position as a school bus driver and or seasonal bus-driver. He subsequently applied for such work and received a response stating that it was not company policy to re-employ staff who go out on retirement. The complainant alleges that he has been directly and indirectly discriminated against on the age ground. The respondent denies the allegation of discrimination and submits that the policy applied equally to all drivers.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 5 November 2002. On 26 January 2004, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A submission was received from the complainant on 1 April 2004 and from the respondent on 17 May 2004. A joint hearing of the claim was held on 26 August 2004.
3. SUMMARY OF THE COMPLAINANT'S WRITTEN SUBMISSION
3.1 The complainant is 52 years of age and worked as a bus driver with Bus Eireann from 1978 to November 2001 when he left the company under a voluntary severance agreement. Before leaving the company, the complainant wrote to his employers asking to be considered for a part-time summer and/or school bus driving job. He subsequently applied for such work on 29 April 2002 and received a response from the Area Manager dated 8 May 2002 informing him that it was not company policy to re-employ staff who go out on retirement. The complainant wrote to the respondent asking them to explain the basis for their policy. The response received from the Area Manager stated that he had nothing further to add to his earlier letter.
3.2 The Equality Authority subsequently wrote to the respondent on the complainant's behalf and asked for a response to the complainant's earlier request for information on the respondent's policy not to re-employ staff who had retired. The Area Manager responded by letter dated 24 September 2002 stating that the complainant had voluntarily retired and was afforded severance terms which were in keeping with the provisions contained in an Agreed Change Programme (Company and Trade Unions). On 1 October 2002, the Authority wrote again to the Area Manager seeking a copy of the terms of the Change Programme and a copy of the policy of Bus Eireann which stated that it would not reemploy former employees who had availed of a redundancy package. The Area Manager responded on 22 October 2002 stating that the complainant had severed his employment with the respondent voluntarily and that he could have made an application for a position as a part time school bus driver prior to leaving the company in which case he would have been considered. Further correspondence passed between the Equality Authority and the respondent in the matter.
3.3 The complainant believes that he has been discriminated against on the age ground in that older workers are more likely to apply for a voluntary redundancy scheme. It is submitted that the complainant was never informed that he would not be eligible for further employment with the respondent if he availed of the voluntary redundancy scheme and that he was effectively retired from Bus Eireann without his knowledge. It is submitted that any Bus Eireann policy not to re-employ workers who avail of a redundancy package is in itself discriminatory and is contrary to section 31 of the Act in terms of section 6 and 8 of the Act. The respondent's failure to communicate the full terms of the severance agreement to its employees is further evidence of its discriminatory treatment of older workers.
3.4 The respondent has failed to supply the information requested in relation to the Change Programme or any policy document relating to the respondent's position on re-employing former employees who avail of a redundancy package. The respondent has not responded to the claim that the complainant did in fact apply to the respondent for school bus or seasonal driving work before he became redundant. A copy of the Drivers' Change Programme was obtained by the complainant. Section 1.3 of the document is entitled "Information" and states that "To enable proper consideration of this amended Change Programme it is essential that all staff are properly informed and fully understand its implications and benefits." However, the document does not state that drivers who opt for redundancy cannot re-apply for work with the respondent. The complainant does not believe that he was given a full understanding of the "implications" of his acceptance of a redundancy package as subsequently interpreted by the respondent. Section 4.3 of the document dealing with the filling of vacancies makes no reference to any rules regarding a company policy not to re-employ drivers who have taken redundancy.
3.5 The complainant submits in evidence a copy of a document from the Irish Transport and General Workers Union. Clause 21 of the document deals with redundancy and states that:
"When redundancy occurs, the Company reserves the right to place redundant regular staff in existing vacancies." The complainant submits that there is a contradiction between the Area Manager's letter of 24 September 2002 where he states that "It is company policy not to re-engage former employees who have availed of a redundancy package" and his letter of 22 October 2002 where he states "Prior to leaving the Company he could have made application for a position as a Part-Time School Bus Driver, in which case he would have been considered."
3.6 The complainant submits in relation to indirect discrimination that when the complainant applied for temporary work in April 2002, he was told that his application was not being considered because he availed of voluntary severance terms. The respondent was therefore operating a provision or requirement which although apparently applied to all prospective employees, operated to the disadvantage of the complainant. The requirement that he not have availed of voluntary severance terms was impossible for the complainant and others who had taken voluntary severance to comply with. It clearly operated to their disadvantage in denying them access to consideration for employment with the respondent company.
3.7 The statistics provided by the respondent in response to the statutory questionnaire from the complainant and an analysis of these statistics show that the proportion of workers who availed of voluntary severance and were under age 50 is only 3.5% as opposed to 96.5% over age 50 and 78.5% over age 60. The respondent has not provided information as requested in relation to the age profiles of the temporary drivers recruited. It is submitted that any policy of the respondent not to employ as temporary drivers those who have availed of voluntary severance terms is indirectly discriminatory on the age ground. Despite numerous requests for an explanation of the basis of such policy, none has been received and it is therefore contended that the discriminatory provision cannot be justified as being reasonable in all the circumstances.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent submits that the claim of indirect discrimination is denied. The statement in the complainant's reference on leaving employment that the Area Manager would recommend the complainant to "future employers" clearly indicates that the company and the complainant understood that his employment with the company had terminated and if he was to work again, it would be for a different employer.
4.2 The complainant wrote to the respondent asking to be considered for a position as a school bus driver and/or seasonal bus driver. He was subsequently advised that there were no such vacancies. The oral advice was copper fastened by the letters of 29 April 2002 and 13 September 2002. The letter from the Area Manager to the complainant dated 22 October 2002 referred to the fact that before the complainant opted for voluntary severance, he could have left his position as a regular driver and applied for a position as a part-time school bus driver. There would have been vacancies arising from time to time prior to October 2001. Further, his age would not have counted against him in applying for these positions while he was still a regular driver. It was the complainant's own decision to avail of the generous Voluntary Severance terms in the Driver Change Programme that precluded him from re-entering employment with the respondent. The respondent refers to a list of drivers age 50 (97 in total) and over who successfully applied for part-time driving positions in the years 2001-2004.
4.3 Clause 5.5 of the Driver Change Programme sets out the conditions under which 30 drivers could have retired on voluntary severance. It would not have been the practice to insert into any Change Programme a statement that a staff member who retired on such grounds could then not be re-employed by the company. Such documents deal with conditions of employment and work practices only. However, it is clear from the document that the criteria for affording early retirement included, inter alia, the saving of the driver's position, the saving of a vehicle and "sub-contracting the work content of a suitable board from the work plan incorporated in the Change Programme." Therefore, the complainant could have been under no illusion that from the company's perspective it was the intention of the Voluntary Severance Programme that a job would be "killed". The respondent refers to a letter dated 23 November 2000 from the Area Manager confirming the operation of the above criteria. Otherwise there would have been no saving to the company as a result of the Programme.
4.4 It should also be noted that public monies are involved in voluntary redundancy situations in that the company receives a rebate of 60% of the redundancy payment from the Department of Enterprise, Trade and Employment. To allow an employee to retire on voluntary redundancy therefore and then re-employ him would be abusing the scheme.
4.5 The respondent submits that the complainant was under no obligation whatsoever to apply for the benefits of the voluntary redundancy scheme. He chose to apply for the schemes benefits. The provisions of the voluntary severance scheme were not in the nature of a requirement, practice or otherwise. The statement that "older workers are more likely to have longest service and therefore qualify for a more substantial reward
than younger colleagues" is correct but of itself has no implications under the Employment Equality Act.
4.6 The respondent disputes that the complainant was "retired from Bus Eireann without his knowledge". He resigned from the company and that is clear from his letter of resignation. Even without confirmation by the respondent at the time, the complainant must have been aware that there was no guarantee that there was a position as a school bus driver or seasonal bus driver available to him. It is denied by the respondent that the policy not to re-employ workers who had availed of a voluntary severance package is in itself discriminatory and no evidence is given for this statement. Furthermore the alleged failure to communicate the full terms of the Severance agreement to employees (which is denied) is not further evidence of discriminatory treatment of older workers and even if it were true, which is denied, it applies to all workers equally.
4.7 The document from the Irish Transport and General Workers Union which is referred to by the complainant is irrelevant as it relates to redundancy and not voluntary severance. The letter dated 16 October 2001 from the complainant was a letter of resignation and not a letter applying for voluntary severance. The complainant had already been approved for voluntary severance some weeks earlier under the Driver Change Programme. Again, the key word is voluntary and the distinction made between the dictionary definition of "retirement" and "redundant" is immaterial.
4.8 In relation to indirect discrimination, again it is pointed out that it was a voluntary scheme and the complainant was under no compulsion. The provision applied to all employees who had taken voluntary severance regardless of age. The requirement was independent of age and therefore the statistical analysis referred to is irrelevant. The voluntary severance scheme is not discriminatory and it cannot be argued that the provision that no employee who had availed of voluntary severance could be considered for the position of part-time driver and/or school bus driver is discriminatory.
4.9 It is submitted that the age profile of the temporary drivers recruited is immaterial but without prejudice to that position and regardless of the "anecdotal information" referred to by the complainant, it is clear from statistics that a significant number of the drivers recruited for part-time positions between 2000 and 2004 were over the age of 50. Therefore, it is quite clear that there was no discriminatory policy against drivers aged 50 and over for the relevant period. The age of the driver was immaterial when being considered for such a position. But what was material was whether or not that driver had previously availed of a voluntary severance scheme and as pointed out, the scheme applied equally regardless of their ages and was voluntary.
4.10 The recruitment policy of the respondent is very clear and it was the desire of the company to reduce costs in implementing a voluntary severance scheme and therefore, the complainant could have been under no illusion that the company was trying to save money by reducing the number of drivers employed by the company. Even if this were not the case, there is no evidence that there was any discriminatory policy against the complainant on the age ground, i.e., the policy applied equally to all drivers. Again, the statistical evidence that the great majority of those who availed of voluntary severance were over 50 years of age is immaterial because as has been pointed out, this was a voluntary scheme and was not a practice of the employer.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainant alleges that the respondent directly and indirectly discriminated against him on the age ground in relation to access to employment. I will therefore consider whether the respondent directly discriminated against the complainant in terms of section 6(2)(f) of the Employment Equality Act, 1998 in contravention of section 8 of the Act. I must also consider whether the respondent indirectly discriminated against the complainant on the age ground in terms of section 6(2)(f) of the Employment Equality Act, 1998 within the meaning of section 31 of the Act and in contravention of section 8 of the Act. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
Discrimination on the age ground
5.2 Section 6(1) of the Employment Equality Act, 1998 provides that:
"Discrimination shall be taken to occur where, on any of the grounds mentioned 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."
Section 6(2) provides that as between any two persons, the discriminatory grounds are,
(f) that they are of different ages, ...... (in this Act referred to as "the age ground"),
Claim of direct direct discrimination
5.3 The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell1 considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. It stated 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 was no infringement of the principle of equal treatment."
The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that s/he was not discriminated against on the grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
5.4 More recently, the Labour Court stated in relation to the burden of proof in a discriminatory dismissal case on the age ground:
"It is now established in the jurisprudence of this court that in all cases of alleged discrimination a procedural rule for the shifting of the probative burden similar to that contained in the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001) should be applied. The test for determining when the burden of proof shifts is that formulated by this Court in Mitchell v. Southern Health Board  ELR201. This places the evidential burden on the complainant to establish the primary facts on which they rely and to satisfy the Court that those facts are of sufficient significance to raise an inference of discrimination. If these two limbs of the test are satisfied the onus shifts to the respondent to prove that the principle of equal treatment was not infringed."2
5.5 I will now consider the issue of whether the complainant has established a prima facie case of direct discrimination on the age ground. As set out at paragraph 5.2 above, the complainant would have to compare himself with someone of a different age, i.e. in this case, someone who was younger. I note that the Labour Court has stated:
"The existence of a difference on the grounds of age, marital status or family status between the two candidates does not of itself establish a prima facie case of discrimination."3
The Labour Court in that case went on to hold that a difference of three years was not significant enough to establish a presumption of discrimination in the absence of any other factors. Evidence has not been presented which indicates that the respondent sought or considered the age of the complainant in relation to his application for seasonal work or a part-time school bus driver position. In this case, the complainant has not provided any evidence to indicate that he was treated less favourably in relation to his age and he has failed to discharge the evidential burden placed on him. The complainant has failed to establish any facts which give rise to a presumption of discrimination and I therefore find that he has failed to establish a prima facie case of direct discrimination on the age ground. Accordingly, his claim cannot succeed.
The respondent's voluntary severance policy
5.6 The Drivers' Change Programme was introduced in 2000. The intention of the Programme was stated to be to "grow the business into a viable commercial enterprise." The Programme also states "To do this we must be competitive. Change, which is required throughout the Company, can best be achieved through a partnership approach to the challenges involved." The Programme states that a maximum of 30 voluntary severances may be afforded to drivers nationally, allocated on a depot basis. The criteria for affording each early retirement were stated, inter alia, to be:
- The saving of a driver's position;
- The saving of a vehicle (except in an expanding situation where an additional vehicle is required).
The complainant availed of the voluntary severance package in November 2001. Prior to leaving the company, he wrote to his employers asking to be considered for part-time summer and/or school bus driving work. On 29 April 2002, the complainant applied for part-time summer and/or school bus driving work. He was subsequently informed by the Area Manager that it was "not company policy to re-employ staff who go out on retirement." Such a policy is not set out in the Driver Change Programme and the respondent stated in its written submission that it would not have been the practice to insert a clause into any change programme stating that a staff member who retired on such grounds could not then be re-employed as the Driver Change Programme deals with conditions of employment and work practices only.
5.7 Part IV of the Employment Equality Act, 1998, deals, inter alia, with indirect discrimination. Section 28 of the Act provides that C and D represent two persons who differ in relation to any of the eight grounds. For the purposes of that part of the Act, a comparison may be made between two persons who differ in relation to their marital status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community. In relation to the age ground, this means that a comparison may be made between two persons of different ages. Section 31 of the Act, prohibits indirect discrimination and section 31(1) provides that where a provision relating to employment applies to all employees or prospective employees (or a particular class of employees or prospective employees) and operates to the disadvantage of one person compared to another and in practice can be complied with by a substantially smaller proportion of employees or prospective employees of a particular category relative to persons of a different marital status, family status, disability, age etc. and cannot be justified as being reasonable in all the circumstances, it shall be regarded as indirect discrimination contrary to section 8 of the Act on whichever of the grounds is relevant.
5.8 By letter dated 8 May 2002, the complainant was informed that "it is not company policy to re employ staff who go out on retirement." A subsequent letter dated 22 October 2002 informed him that prior to leaving the company, he could have made an application for a position as a part-time school bus driver. The respondent at paragraph 2.7 of its submission refers to that letter and states "The letter of 22 October 2002 referred to the fact that before Mr. Mc Loughlin applied for Voluntary Severance he could have left his position as a regular driver and applied for a position as a part-time school bus driver. There would have been vacancies arising from time to time prior to October 2001." At the hearing, the respondent clarified its statement in relation to this matter and submitted that the complainant could have applied for the positions in question prior to leaving the company, in which case he would have been considered for a transfer from full time to part-time duties and the issue of voluntary severance would not then have arisen.
5.9 The complainant was 50 years old at the relevant time. The information provided by the complainant indicates that 28 people were approved for the scheme. It submitted that the number of workers in the various age bands were:
30s = 1 = 3.5%
40s = 0 = 0%
50s = 5 = 18%
60s = 22 = 78.5%
As submitted by the complainant, 96.5% of the applicants who availed of the voluntary severance package were therefore in the over 50s category. I will now consider, in the context of section 31 of the Act and indirect discrimination, the respondent's practice that anyone who had availed of voluntary severance under the Drivers' Change Programme could not be re-employed. The complainant submits that the practice applied to all prospective employees and operated to his disadvantage as he was in the over 50 age group as compared with those under 50 and in practice could be complied with by a substantially smaller proportion of prospective employees who are in the over 50 group given that such group are more likely to have applied for the severance as the calculation of such a package is based on years of service. The respondent submitted that the voluntary severance scheme is not discriminatory and it cannot be argued that the provision that no employee who had availed of voluntary severance could be considered for the position of part-time driver and/or school bus driver is discriminatory.
5.10 The respondent states in its written submission that a significant number of the drivers recruited for part-time positions between 2001 and 2004 were over the age of 50 thus indicating that there was no discriminatory policy towards drivers aged 50 and over. It submitted that 97 drivers over 50 were recruited for both positions at eleven depots in the period 2001-2004. The respondent subsequently provided statistics in relation to the breakdown of the ages of the applicants and successful candidates for the posts of part time school bus driver and seasonal driver for various depots (10) between 16/10/01 (being the date that the complainant asked to be considered for both positions) and 31/12/03. At the hearing, the complainant submitted that the statistics provided were not sufficiently refined, were inaccurate and unreliable. It submitted that for example, a person is recorded as being an applicant and employed in 2003 as a part-time school bus driver in Tralee and also recorded as being an applicant and employed as a seasonal driver for the same period. It also submitted that his age was recorded incorrectly for the school bus driving position. The complainant further submitted that his application was not shown for the Stranorlar depot.
5.11 The European Court of Justice has stated in relation to the use of statistics to establish an unfavourable impact on one group as compared to another in a case concerning indirect gender discrimination:
".... The best approach to the comparison of statistics is to consider, on the one hand, the respective proportions of men in the workforce able to satisfy the requirement of two years' employment under the disputed rule and of those unable to do so, and, on the other, to compare those proportions as regards women in the workforce. It is not sufficient to consider the number of persons affected, since that depends on the number of working people in the Member State as a whole as well as the percentages of men and women employed in the State."4
The Court went on to state:
"It is also for the national court to assess whether the statistics concerning the situation of the workforce are valid and can be taken into account, that is to say, whether they cover enough individuals, whether they illustrate purely fortuitous or short-term phenomena, and whether, in general, they appear to be significant (see Case C-127/92 Enderby  ECR I-5535, paragraph 17)."
Subsequently in another case, it stated in relation to the statistics "It seems doubtful that such data could be treated as significant."5
In the present case, I have considered the statistics available and I note that the group affected, i.e those who availed of voluntary severance is quite small (only 30 people in total countrywide were permitted to avail of the scheme and 28 actually availed of it), which would impact on the number of potential applicants for posts who would be affected by the requirement. I also note that there are inconsistencies and inaccuracies in the data provided by the respondent and I therefore consider that the data cannot be treated as reliable or significant in this case.
5.12 In the Labour Court case of NBK Designs Ltd v. Marie Inoue6, the Court noted that the "question of whether an expert tribunal (such as the Court) can reach conclusions by relying on the knowledge and experience of its members, without any evidence being adduced on the point," had not been previously considered by the Court but had been considered by the UK and Northern Ireland. The Labour Court quoted from Price v. Civil Service Commission7, Perera v. Civil Service Commission,8 (which was subsequently adopted in Clymo v. Wainsword London Borough Council9) and Briggs v.North Eastern Education and Library Board.10
I refer to an extract from the Perera case quoted by the Labour Court which reads as follows:
"On the one hand, the burden is on the complainant to prove his case and, viewed in isolation, the statistics produced do not prove it. On the other hand it is most undesirable that, in all cases of indirect discrimination, elaborate statistical evidence should be required before the case can be found proved. The time and expense involved in preparing and proving statistical evidence can be enormous, as experience in the United States had demonstrated. It is not good policy to require such evidence to be put forward unless it is clear that there is an issue as to whether the requirements of Section 1(1)(b) are satisfied."
5.13 The Labour Court went on to hold in the Inoue case:
"It would be alien to the ethos of this Court to oblige parties to undertake the inconvenience and expense involved in producing elaborate statistical evidence to prove matters which are obvious to the members of this Court by drawing on their own knowledge and experience. Whilst there are many cases in which the unequal effect of a provision can be seriously put in issue and the true position can only be established by elaborate statistical evidence, the Court is satisfied that this is not such a case."
In this case, the statistics produced by the respondent do not prove a disproportionate impact on the over 50 age group. In any case, I have found at paragraph 5.11 above that there are inconsistencies and inaccuracies in the data provided by the respondent and that the data cannot be treated as reliable or significant in this case. In the circumstances of the present case, I do not consider that the unequal effect on the over 50 age group of the requirement of not having availed of voluntary severance in order to be eligible for the posts in question can only be established by elaborate statistical evidence. The respondent accepted as correct the complainant's statement that "older workers are more likely to have longest service and therefore qualify for a more substantial reward than younger colleagues." The complainant submitted that 96.5% of persons who availed of voluntary severance were over 50 and these figures were not disputed by the respondent. The impact of the practice of being ineligible for the competition if a person had previously availed of voluntary severance clearly impacts more heavily on the group of applicants aged 50 or over as that group are more likely to have availed of voluntary severance as compared with the group of applicants aged under 50. The complainant has therefore established a prima facie case of indirect discrimination.
Justification for the practice
5.14 I must now consider whether the respondent can rebut the complainant's claim and show that the requirement can be justified as being reasonable in all the circumstances of the case. The European Court of Justice has stated in relation to objective justification in a case concerning gender discrimination:
"It is necessary in that regard to ascertain, in the light of all the relevant factors and taking into account the possibility of achieving by other means the aims pursued by the provisions in question, whether such aims appear to be unrelated to any discrimination based on sex and whether those provisions as a means to the achievement of certain aims, are capable of advancing those aims (see, in that regard, Case C-167/97 Seymour-Smith and Perez  ECR I-623, paragraph 72)."11
5.15 In the case of St James's Hospital v. Dr. Bennett Kim Heng Eng12, the Labour Court considered whether the standard of justification necessary to save an otherwise discriminatory term or criterion, under Section 29(4)(d) of the Employment Equality Act, 1998 in relation to the non gender grounds is lower than that of objective justification required by Section 19(4)(d) in a case involving discrimination on the gender ground. The Court accepted that "by using different terminology in both sections the Oireachtas must have intended that a lower standard of justification would be required in cases of indirect discrimination on the non-gender grounds than that derived from the jurisprudence of the ECJ in cases involving gender equality. Nonetheless, the standard of justification required cannot be so low as to render the section ineffective or nugatory."
The Labour Court went on to hold that:
"The Act gives no guidance as to what factors are to be taken into account in applying this provision. It is thus a question of fact to be decided by the Court in each case applying ordinary objective standards of reasonableness to the factors put forward by the respondent as justification for the term or criterion in question. Further, it appears to the Court that the dominant purpose of the factors relied upon must relate to an objective which the employer is required to pursue or is reasonably entitled to pursue and they go no further than is reasonably necessary for the attainment of the objective."
The Court went on to hold that the criterion applied by the respondent to determine whether there was an entitlement to remuneration could not "be justified as being reasonable in all the circumstances of the case."
5.16 The respondent in this case submitted that the retirement of surplus staff on voluntary severance involves significant costs (e.g. pensions costs and ex gratia payments) and was only availed off when no other options were available. It submitted that what was material in relation to applications for the posts in question "was whether or not that driver had previously availed of a Voluntary Severance Scheme". It continued "The explanatory for the policy, ...... is very clear and as pointed out above is designed to achieve cost savings." It also referred to the expenditure of public monies on redundancy situations through the Department of Enterprise, Trade and Employment rebate scheme and submitted that to allow an employee to retire on voluntary redundancy and then re-employ him would be abusing the scheme. The respondent did not present any evidence to show how cost savings can be achieved by not employing the complainant who has availed of the voluntary severance scheme as opposed to employing someone who has not availed of the scheme. The European Court of Justice stated in a case concerning restricted access to a part-time working scheme to those who had worked full-time for a total of at least three of the preceding five years which predominantly affected females' access to the scheme:
"Mere generalisations concerning the capacity of a specific measure to encourage recruitment are not enough to show that the aim of the disputed provision is unrelated to any discrimination on grounds of sex or to provide evidence on the basis of which it could reasonably be considered that the means chosen are or could be suitable for achieving that aim (Kutz-Bauer, paragraph 57).13
5.17 Similarly, in this case mere generalisations concerning the practice of not employing persons who had availed of the voluntary severance package to achieve cost savings for the company is not sufficient to objectively justify the requirement. Furthermore, the European Court of Justice stated in the Kutz-Bauer case:
"Moreover, to concede that budgetary considerations may justify a difference in treatment between men and women which would otherwise constitute indirect discrimination on grounds of sex would mean that the application and scope of a rule of Community law as fundamental as that of equal treatment between men and women might vary in time and place according to the state of the public finances of Member States (De Weerd and Others, cited above, paragraph 36, and Jorgensen, cited above, paragraph 39)."
In that case, the Court also referred to Hill and Stapleton v. The Revenue Commissioners and the Department of Finance14 which held that increased costs cannot justify discrimination. The Court stated in Hill and Stapleton :
"So far as the justification on economic grounds is concerned, it should be noted that an employer cannot justify discrimination arising from a job-sharing scheme solely on the ground that the avoidance of such discrimination would involve increased costs."15
5.18 Whilst bearing in mind that the rights at issue in this case at the relevant time were derived solely from domestic law and the above cases concern discrimination on the gender ground in a European law context, I consider that the caselaw can be relied upon as providing relevant legal principles and can provide assistance in reaching a decision in this case. In accordance with ECJ caselaw, I consider, therefore, that the respondent cannot rely on the justification of achieving cost savings (if there were any) for the operation of the policy of not employing persons who availed of voluntary severance. In this case, the respondent has not shown that the practice of not re-employing someone who had availed of the voluntary severance package is unrelated to any discrimination based on age or justified the practice other than on the basis of economic grounds and increased costs. Therefore, I do not consider that the requirement can be justified as being reasonable in all the circumstances of the case. I, therefore, find that the respondent has not rebutted the complainant's claim of indirect discrimination and I find that the practice of not re-employing persons who had availed of voluntary severance indirectly discriminated against the complainant on the age ground.
6.1 On the basis of the foregoing, I find that the respondent did not directly discriminate against the complainant on the age ground in terms of section 6(2)(f) of the Employment Equality Act, 1998 contrary to section 8 of the Act in relation to access to employment.
6.2 I find that the respondent indirectly discriminated against the complainant on the age ground in terms of section 31 of the Act in contravention of section 8 of the Act in relation to access to employment.
6.3 I hereby order that the respondent:
(i) treat the complainant in the same manner as any other applicant in relation to any application(s) he makes for the position of school bus driver or seasonal bus driver;
(ii) pay to the complainant the sum of €3,000.00 compensation for the effects of the act of discrimination (This award relates to compensation for distress and breach of rights under the 1998 Act and does not contain any element of lost income);
(iii) immediately implement an Equality Policy which takes account of the provisions of the Employment Equality Acts, 1998-2004 and effectively communicate the policy to all those potentially affected by it including management and employees.
28 September 2004
1 DEE011 15 February 2001
2 Flexo Computer Stationery Limited v. Kevin Coulter EED0313 9 October 2003
3 Superquinn v. Barbara Freeman AEE/02/8 No. 0211 14 November 2002
4 R v. Secretary of State for Employment ex p. Seymour-Smith and Perez Case C-167-97 9 February 1999
5 Jorgensen v. Foreningen af Speciallaeger Case C-226/98 6 April 2000
6 ED/02/34 Determination No. 0212 25 November 2002
7  IRLR 291
8  IRLR 147
9  IRLR 241
10  IRLR 181t6
11 Helga Kutz-Bauer v. Freie und Hansestadt Hamburg Case C-187/00 ECR 2003 Page I-02741 para 51
12 ADE/02/4 Determination No. 023 22 July 2002
13 Erica Steinicke v Bundesanstalt fur Arbeit Case C-77/02 11 September 2003 para 64
14 Case C-243/95 ECR 1998 Page I-03739
15 paragraph 40