The Employment Equality Acts 1998 and 2004
(represented by Deirdre Creighton B.L., instructed by Frank Murphy, Solicitor Ballymun Community Law Centre)
Wessel Cables t/a ABB Cables Company and ABB Ltd (represented by Tim O' Connell, IBEC)
File No: EE/2004/300 Date of issue: 21 February 2007
1.1 The case concerns a claim by Mr. John Graham that Wessel Energy Cables Ltd t/a ABB Cables Company and ABB Ltd, (now t/a B3 Cable Solutions Ireland), Dublin directly against him on the age grounds in terms of section 6(2)(f) of the Employment Equality Acts 1998 and 2004 contrary to sections 8 of the Acts in relation to redundancy.
2.1 The complainant claims that his exclusion from a redundancy package valued at €9.9 million and negotiated by his trade union (SIPTU) following the announcement of the closure of the Dublin plant of his employer amounted to discrimination on the age ground in terms of section 6(2)(f) of the Employment Equality Acts 1998 and 2004 in contravention of section 8 of the Acts. The respondent disputes that they failed to deal even handedly with the complainant in proceeding with his retirement on reaching his sixty fifth birthdays and it rejects the claim of discrimination on the age ground
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Equality Tribunal on 6 December 2004. On 8 May 2006, 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 5 April 2006 and from the respondent on 11 July 2006. A joint hearing of the claim was held on 17 January 2007. Material requested at the hearing was provided on 24 January 2007.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant claims that his exclusion from a redundancy package valued at €9.9 million and negotiated by his trade union (SIPTU) following the announcement of the closure of the Dublin plant of his employer amounted to discrimination on the age ground in terms of section 6(2)(f) of the Employment Equality Acts 1998 and 2004 in contravention of section 8 of the Act.
3.2 The complainant had worked as an operative for ABB Cables for a total of 34 years. On 5 March 2004, the announcement of the closure of the Dublin plant was made. The workers were notified of the closure by management on the same day. It was the intention of the company to phase out the jobs over a twelve month period. A small number of staff was to be transferred to the Longford plant and all other staff was to be made redundant. The complainant was also advised of the closure by letter dated 5 March 2004 delivered to his home address by courier.
3.3 The complainant was due to turn 65 years of age on 1 April 2004. Following the announcement of the closure, the complainant approached the Plant Manager regarding his position. He inquired of him whether there was anything that he could do for him in relation to availing of the redundancy package. The complainant received no formal notification of retirement by the company. He had been contacted by the trustees of the pension scheme during the month of March as a matter of course as he was approaching his 65th birthday. On 31 March 2004, the complainant was compulsorily retired. He was subsequently informed by a Shop Steward that the company had determined that he should be excluded from the package. The complainant believes that he was the only worker to retire after the announcement of the redundancies and before the redundancy package was finalised.
3.4 The redundancy programme was implemented by the Plant Manager, Mr. D who indicated in a different forum that he had overall control of the process and that the process was administered at his discretion and subject to the requirements of the business on the ground. Redundancies commenced on a phased basis from July. The complainant is aware that considerable discretion was exercised by the company during the closure and that workers were dealt with according to their personal circumstances. He states that a number of workers who had been out on long term sick pay were subject to an alternative package arrangement in advance of the redundancy situation. He refers to Mr. T also an operative for over 30 years who was due to turn 65 on 8 December 2004 but was permitted to leave the job five weeks early and received the statutory redundancy payment.
3.5 The respondent submits that it was a matter of unfortunate timing for the complainant. The normal retirement age in the Company was 65 and pensions become payable at that stage. The complainant is personally aware of fellow employees who continued to work past the age of 65 or who retired and returned to work after the age of 65. The company did not operate a strict "out at 65" policy of retirement. It was not a condition of the company pension's scheme of which the complainant was a member that he retire on his 65th birthday and it was possible under the terms of the scheme to work beyond 65. The complainant submits that the retirement mechanism was operated in an uncharacteristically rigid fashion so as to discriminate against the complainant.
3.6 The complainant submits that it was in the exercise of discretion in favour of some employees and contrary to the interests of him which founds the allegation of discrimination. He submits that it is a case of discretion being arbitrarily and unfairly applied and justified on the grounds of age.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent submits that the complainant in this case is alleging that he was discriminated against on the age ground when his request for a redundancy payment was made and refused some five months following his retirement. The position of Machine Operator which was his role prior to retirement in April 2004 was not made redundant until mid October of that year, some five and a half months following his retirement.
4.2 The complainant commenced work with the respondent company on 24 November 1969 on a permanent basis. The complainant became a member of Unidare Cables Limited Works Pension scheme and was issued with the standard explanatory booklet. On page 2 of the Booklet entitled "Technical Terms Explained", the normal retirement age is referred to as being the sixty fifth birthday of the employee. This was the retirement date enforced by the respondent company. The complainant's 65th birthday was on 1 April 2004 and he retired on that date as prescribed by the Scheme and by company custom and practice. At no stage did the complainant seek to stay on past his retirement age or did he dispute the fact that he was now due to retire.
4.3 Whilst it is admitted that the complainant received no new written notification of his impending retirement, this was because it had already been furnished to him in writing in the Pension Scheme. When the letter of 5 March 2004 issued, it was anticipated that there would be a number of redundancies in the relatively near future but there were no clear proposals at that stage as to how the redundancies would be implemented. The issue of the complainant being included in the anticipated redundancy deal was raised with the Plant Manager and was rejected on the basis that the complainant would be retired long before his position was due to be made redundant. The issue did not form part of the negotiations which later ensued.
4.4 The structure of the redundancies had not been agreed when the complainant retired. In fact the position of Machine Operative which was held by the complainant prior to his retirement was not made redundant until many months later, in or around October 2004. The complainant was retired for some five and a half months before a letter dated 16 September 2004 was received from his legal representative seeking his "fair share" of the redundancy package negotiated by the Union on behalf of those existing employees who were made redundant within the meaning of Section 7 of the Redundancy Payments Act, 1967. At no stage, did the letter dispute the legality, impartiality or fairness of the complainant's retirement. A claim by the complainant to the EAT under the Redundancy Payments Acts, 1967-2003 was unsuccessful.
4.5 In relation to the complainant's claim that two men on long term sick leave were the subject of an alternative redundancy package, the respondent submits that there was a fundamental difference in the circumstances of these workers as they were still employees at the material time and the respondent had certain contractual and statutory obligations towards them which did not apply in any way to the complainant. The respondent submits that it is not appropriate to use these individuals as comparators and it is also not appropriate for the complainant to compare himself to his former colleague, Mr. T. Mr. T was due to retire on 8 December 2004 and was still an employee when his position was made redundant in October 2004. The complainant's contract had already expired by the time the position once occupied by him was made redundant.
4.6 The respondent disputes that they failed to deal even handedly with the complainant in proceeding with his retirement on reaching his sixty fifth birthdays and the respondent rejects the claim of discrimination on the age ground. Section 34(4) of the Employment Equality act, 1998 as amended by the Equality Act, 2004 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.
Section 34(3) provides:
In an occupational benefits scheme it shall not constitute discrimination on the age ground for an employer-
(a) to fix ages for admission to such a scheme or for entitlement to benefits under it,
(b) to fix different such ages for all employees or a category of employees,
(c) to use, in the context of such a scheme, age criteria in actuarial calculations, or
(d) to provide different rates of severance payment for different employees or categories of employees, being rates based on or taking into account the period between the age of an employee on leaving the employment and his or her compulsory retirement age,
provided that that does not constitute discrimination on the gender ground.
4.7 The respondent relies on the above sections and submits that the complainant's departure from the company was not a redundancy situation but was upon his attainment of the compulsory retirement age. Section 34(3) only applies to the extent that it illustrates the spirit of the legislation had the complainant still been in employment when his position was made redundant.
4.8 All company employees are required to retire on their sixty fifth birthdays and this policy has been strictly applied. A small number of retired employees have following retirement returned to work for a short period of time on fixed term contracts and based on the business requirements of the company. Whereas the company acknowledges that it is possible in law to exercise discretion in applying normal retirement age, it has chosen not to. The respondent disputes that the complainant has established a prima facie case of discrimination on the age ground. The complainant retired on his sixty fifth birthday, a retirement date of which he was notified well in advance. The complainant cannot demonstrate that he was treated less favourably than any other employee as all employees were required to retire at the same age.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainant alleges that the respondent directly discriminated against him on the age ground in relation to his conditions of employment when he was excluded from the redundancy package. I will therefore consider whether the respondent directly discriminated against the complainant on the age ground in terms of section 6(2)(f) of the Employment Equality Acts 1998 and 2004 and in contravention of section 8 of the Acts. 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.
The provisions of the Act in relation to discrimination on the age ground
5.2 Section 6(1) of the Employment Equality Acts 1998 and 2004 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, inter alia:
(f) that they are of different ages, ...... (in this Act referred to as "the age ground"),
Caselaw on establishing a prima facie case of direct discrimination
5.3 I will firstly consider the issue of whether the complainant has established a prima facie case of direct discrimination on the age ground. The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell (1) 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 grounds of their sex. If the complainant does not discharge the evidential burden, the claim cannot succeed.
5.4 Subsequently, 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 More recently, the Labour Court stated in a case concerning discrimination on the age ground in relation to access to employment:
"It is accepted that if the complainants make out a prima facie case of discrimination, the burden of proving the absence of discrimination shifts to the respondent. The appropriate test for determining if that burden has shifted is that formulated by this Court in Teresa Mitchell v Southern Health Board  ELR 201. This test places the initial burden on the complainant to establish, as a matter of probability, the primary facts upon which they rely. If those facts are proved on that standard, and if they are considered as having sufficient significance to raise a presumption of discrimination, the burden of proving that the principle of equal treatment has not been infringed rests on the respondent." (3)
The allocation of the burden of proof in discrimination cases is now governed by section 85A(1) of the Acts as amended. This provides:
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.
In Determination No: EED054 Tsourova v Icon Clinical Research  16.E.L.R. 250, the Labour Court took the view that the rule of evidence provided by s85A of the Act as amended is applicable in current proceedings including proceedings in relation to events which occurred prior to its enactment.
5.6 The complainant in this case received a letter from the respondent dated 5 March 2004 announcing the closure of the factory where he worked and stating "Where redundancy is involved we will seek to be fair and equitable with all our staff." The letter did not advise the complainant that redundancy applied to him specifically. At the hearing, the respondent clarified that the first redundancy was in July 2004 and the last was in May 2005. Indeed the complainant's written submission states that redundancies were implemented on a phased basis from July. The respondent accepted that the complainant was the only person who retired between the announcement of the redundancies and the roll out of the redundancies. The complainant retired on 1 April 2004 on reaching sixty five years of age. He submitted at the hearing that he did not apply for an extension as he knew that someone applied the previous year and was refused. The complainant worked on the opposite shift to Mr. T but on the same machine as him. Mr. T was due to retire on 8 December 2004 but was made redundant in October 2004.
5.7 At the hearing, the respondent clarified that the machines were moved to Longford as determined by the needs of the business and as the machine was transferred, the person working on the particular machine was made redundant. The respondent submitted that it had four conciliation conferences with the Unions to determine the redundancy terms. A proposal in relation to the redundancies drawn up by the LRC following conciliation conferences on 17 May 2004, 27 May 2004 and 10 June 2004 was submitted in evidence. The proposal was recommended for acceptance by all parties and it referred to a ballot to take place on 21 June 2004 on site. A document titled "Wessel Works Pension Fund Unidare Section" and "Retirement Options Statement" dated 3 March 2004 detailed the two options available to the complainant on retirement which were an Unreduced Pension or a Reduced Pension and a Tax Free Lump Sum. On 25 March 2004, the complainant opted for Option 2 in a document addressed to the Trustee of the Wessel Works Pension Fund Unidare Section. On 16 September 2004, the complainant's representative wrote to the respondent seeking his share of the redundancy package. The respondent responded on 29 September 2004 stating that the complainant retired on 1 April 2004 and was not made redundant and was not therefore entitled to a redundancy package.
5.8 It is the case that section 34(4) provides that 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. The respondent submitted that whilst the rules of the pension scheme provided for a situation where an employee remained in employment after the normal retirement age, the company policy was for everyone to retire at their normal retirement date, i.e. 65th birthday. In relation to the complainant's statement that some employees retired and returned to work subsequently, section 6(3)(c) of the Acts provides 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 ground. It is clear that no redundancy could have taken place prior to 21 June 2004 being the date of the ballot on the redundancy package. The complainant in this case retired on 1 April 2004 which was almost four months before the first redundancy. I consider that the complainant had retired prior to any redundancies being effected and he was therefore not treated less favourably on the age ground by the respondent's failure to include him in the redundancy package.
5.9 Whilst it may appear to the complainant to be unfair that he was not included in the redundancy package, particularly as he was the only one in the particular situation that he retired between the announcement of the closure of the factory and the roll-out of the redundancies, unfairness in itself is not necessarily discrimination.
6.1 On the basis of the foregoing, I find that the complainant was not discriminated against on the age ground in terms of section 6(2)(f) of the Employment Equality Acts 1998 and 2004 contrary to section 8 of the Acts in relation to the respondent's failure to include him in the redundancy package.
21 February 2007
(1) DEE011 15 February 2001