Pharmagraphics Guy Limited
1.1. The case concerns a claim by Mr Derry Connolly that Pharmagraphics Guy Ltd., discriminated against him on the ground of age contrary to Section 6(2)(f) of the Employment Equality Acts 1998 to 2004, in not selecting him for voluntary redundancy when he applied for it.
2.1. The complainant submits that he applied several times to the respondent to be made redundant, but was refused. He states that he was also refused redundancy under a voluntary redundancy programme of the respondent’s in June 2005. He contends that since he since he was almost 65 years of age at the time, this constitutes discrimination on ground of age.
2.2. The respondent submits that it has reviewed the matter, and that no discrimination occurred with regard to the complainant’s non-selection for redundancy. In particular, the respondent asserts that no worker in the department in which the complainant worked, was selected for, or otherwise offered redundancy, in 2005 or since then.
2.3. The complainant referred a complaint under the Employment Equality Acts 1998 to 2004 to the Director of the Equality Tribunal on 4 November 2005. On 29 November 2007, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. A submission was received from the complainant on 29 January 2008. A submission was received from the respondent on 11 March 2008. A joint hearing of the claim was held on 9 July 2008.
Summary of the Complainant’s Written Submission
3.1. The substance of the complainant’s submission is outlined in paragraph 2.1 above.
Summary of the Respondent’s Written Submission
4.1. The substance of the respondent’s submission is outlined in paragraph 2.2 above.
Conclusions of the Equality Officer
5.1. The issue for decision is whether the complainant was treated less favourably on grounds of his age in selection for redundancy contrary to S. 8(6)(c) of the Acts.
5.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. The Labour Court expressly stated this principle in the age discrimination case of Portroe Stevedores v. Nevins, Murphy and Flood [EDA051] and the age discrimination/redundancy case of Flexo Computer Stationary v. Kevin Coulter [EED0313].
5.3. At the hearing of the complaint, the complainant stated that he is now retired. He reached his 65th birthday on 23 June, 2005, and retired on 24 June, 2005. He stated that he had worked for the respondent for 48 years, since starting as an apprentice guillotine operator (a skilled print operative who cuts printed matter to the required finished sizes) in 1957. He stated that a situation existed in which he had insufficient work on an intermittent basis since 2002. This had led him to believe that a redundancy situation existed in the company and that he had approached his shop steward of the Irish Print Union, and his foreman about taking voluntary redundancy.
5.4. The complainant stated that the lack of work he experienced was due to the fact that the respondent’s printed labels business had slowed down and that the work had shifted to printing leaflets. The complainant, while stating that he felt unhappy about his lack of work, did not seek to make a case that he was deliberately deprived of work.
5.5. The complainant stated that on 5 May 2005, he approached the managing director of the respondent in the canteen and advised him of his lack of work, and that he was looking for redundancy. It is the complainant’s recollection that the managing director replied that this was the first he had ever heard about the complainant’s lack of work. The managing director then offered the complainant paid leave until his retirement the following month, which the complainant availed of.
5.6. The respondent’s managing director stated that he recalled that the complainant approached him on the factory floor and told him that his sister was critically ill in the UK. Based on this, the complainant was given paid compassionate leave with immediate effect, and until his retirement if necessary, on full pay. It is common case between the parties that the complainant was on leave with full pay from 5 May 2005 until he retired on 23 June 2005, as per his P45 form, which the respondent submitted in evidence.
5.7. I am satisfied from the evidence before me that a redundancy situation did arise at the respondent company in the summer of 2005. The respondent stated that on 9 June 2005, they notified the unions that voluntary redundancies would be sought. The managing director stated in evidence at on 13 June, further discussions with the unions took place, and that on either 13 or 14 June, he addressed all staff of the company in this matter.
5.8. The respondent stated that length of service would not be a criterion for selection for redundancy, or for approval of an application for voluntary redundancy. Rather, any such selection is made on how important the position selected for redundancy is for the respondent’s business needs, and how easily a specific worker could be replaced and trained if the business picked up again. The respondent stated that key players would never be made redundant. I find it relevant to note that at this point of the respondent’s evidence, the complainant interjected to state that he did consider himself a “key player” in the respondent’s operation due to his skills and experience.
5.9. Based on this, a decision was made to preserve numbers and skills in particular areas. The respondent stated that no worker from the group the complainant worked in prior to his retirement, or his trade union, was made redundant.
5.10. The respondent further stated that the redundancies which resulted from the negotiations and announcement in June 2005 did only occur later that summer, in July and August 2005, when the complainant was already retired. In response to a direct question from the representative of the respondent, the complainant confirmed that nobody was either made redundant or accepted for voluntary redundancy prior to his retirement.
5.11. The complainant’s legal representative submitted that his client’s retirement was immaterial to the case on hand, and that he was treated less favourably on grounds of his age as a matter of principle.
5.12. In evaluating the evidence before me, I also have regard to the Equality Officer decision in Graham v. Wessel Cables t/a ABB Cables Company and ABB Ltd [DEC-E2007-009]. In that case, the complainant also retired between the date on which the respondent company announced redundancies, and the time these redundancies came into effect. The Equality Officer held that the complainant had not been discriminated on grounds of age. She further stated that “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 in the particular situation that he retired between the announcement … and the roll-out of the redundancies, unfairness in itself is not necessarily discrimination.
5.13. In the instant case, I note from all of the evidence before me that the complainant would likely not have been made redundant even if he had not reached retirement age, as it was common case between the parties that his skills and experience were of great value to the respondent. I further note that any disadvantage that may have accrued to the complainant from not being included in the redundancies sought must be balanced by the fact that the respondent granted him eight weeks’ leave on full pay prior to his retirement. Like the complainant in Graham, the complainant may have been unlucky in the way his retirement date fell between the announcement and the roll-out of the respondent’s redundancies, but I do not find any evidence of less favourable treatment on grounds of age.
6.1. Based on all of the foregoing, I find that the complainant did not establish a prima facie case of less favourable treatment on grounds of age pursuant to S. 6(2)(f) of the Acts, in relation to selection for redundancy contrary to S. 8(6)(c) of the Acts, and that therefore his complaint fails.
15 July 2008