Equality Officer's Decision
Raymond J. McGovern
(represented by Brian Conroy B.L. instructed by Arthur Cox Solicitors)
File reference: EE/2006/124
Date of issue: 3rd September 2010
Keywords: Employment Equality Acts, Discrimination, Age, Occupational benefit scheme
1.1 This case concerns a complaint by Raymond J. McGovern against his former employer Eircom Ltd that he was discriminated against on the grounds of age in terms of 6 (2)(f) of the Employment Equality Acts 1998-2008 [hereinafter referred to as 'the Acts'] regarding treatment in relation to redundancy.
1.2 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 28th April 2006. In accordance with her powers under Section 75 of that Acts, the Director delegated the case on 7th November 2008 to Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Acts. Submissions were received from both parties and a Hearing was held on 3rd February 2010. The final correspondence received in relation to information sought by the Equality Officer was on 24th May 2010. In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties.
Summary of the complainant's case
2.1 The complainant joined the Department of Posts and Telegraphs in 1965 and worked in various roles including as a linesman and in the planning department. He submits that he was excluded from two voluntary leaving schemes which he states amounts to discrimination on the age ground contrary to Section 8 of the Acts. In relation to the first one, he states that there were inordinate delays in answering his queries so the closing date passed.
Summary of the Respondent's case
3.1 Applications for the first voluntary leaving scheme the complainant wished to apply for opened on 24th May 2004 and closed on 25th June 2004 (VLS 19/04). The complainant was eligible for inclusion in the voluntary leaving scheme and he applied for the scheme on 23rd June 2004. The following day Mr A, Voluntary Leaving Support Officer with Eircom, met with Mr McGovern to explain and discuss the package available to Mr McGovern. Mr A also gave in writing the financial particulars of the package that was being offered to Mr McGovern. At that stage Mr McGovern told Mr A that he needed time to think about whether he would take this financial package or not.
3.2 About a week later, the respondent submits that Mr McGovern's supervisor informed Mr A as to who was applying for VLS 19/05. The reason Mr McGovern gave for not applying for the voluntary leaving scheme on the basis that he was dissatisfied with the financial package being offered. Eircom submits that his principal objection appeared to be that it failed to take into account an incremental increase to his salary which was soon to fall due. The respondent maintains that Mr McGovern continued to make complaints in relation to the alleged unfairness of the voluntary leaving package that he had been offered after the closing date of same. The respondent strenuously denies that it delayed responding to Mr McGovern's queries. However, even if that was the case, Eircom submits that alleged unfair treatment that is not linked to a discriminatory ground cannot provide a cause of action under the Acts. Mr A confirmed by email to Mr McGovern on 13th August 2004 that the voluntary leaving scheme at issue was closed.
3.3 Mr McGovern was eligible for several other voluntary leaving schemes which were subsequently opened to certain Eircom employees e.g. schemes opened on 8th November 2004, 24th January 2005, 12th March 2005, December 2006 and 7th January 2008. He did not apply for any of those schemes.
3.4 The second scheme that Mr McGovern argues discriminates against him is VLS 21/05 in that the scheme was not available to 'employees who can currently avail of their pension entitlements'. As Mr McGovern's 60th birthday fell on 16th November 2005 (and therefore was entitled to draw down his pension) he was ineligible for this scheme as it opened on the 19th December 2005.
3.5 The respondent submits that Mr McGovern's allegation is unfounded in light of Section 34(3) of the Acts in that it shall not constitute discrimination on the age ground for an employer to fix ages for admission to an occupational benefits scheme. Eircom argues there are valid policy reasons for an employer choosing to place age restrictions on a voluntary redundancy scheme and that those policy reasons underlie the legislature's decision to insert Section 34(3) in the Acts.
3.6 Eircom Ltd wish to point out that Mr McGovern has subsequently availed of a Voluntary Leaving Scheme.
3.7 Without prejudice to the above argument, Eircom submits that the complainant's issues regarding VLS 19/04 is out of time as the Tribunal received the EE1 form on 28th April 2006 approximately 19 months after this scheme closed.
Preliminary issue - time limits
4.1 I am satisfied that I have jurisdiction to consider both elements (VLS 19/04 and VLS 21/05) of the complaint. In this, I rely on the Labour Court Decision Department of Health and Children v Gillen:
Two acts can be considered as separate manifestations of the same disposition to discriminate. If the last alleged act of discrimination is within the time period specified in the Acts, which both parties concede it was, the Court may take into consideration previous occasions in which the complaint was on the same ground.
Both are voluntary leaving schemes and both cases are taken on the ground of age. Now I will turn to the substantive complaint.
Conclusions of the Equality Officer
5.1 The issue for me to decide is whether or not Mr McGovern was discriminated on the grounds of age in terms of Section 6(2)(f) of the Acts contrary to 8(6)(c). Section 6 (1) of the Acts provides that discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated.
5.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Prima facie evidence has been described as 'evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.'
5.3 First of all, I am satisfied that both VLS 19/04 and VLS 21/05 are occupational benefit schemes as defined in 34(3A) of the Acts. The definition includes 'any scheme...providing for benefits to employees or any category of employees on their becoming ill, incapacitated or redundant'. Regarding VLS 19/04, the complainant is likely to be correct that his forthcoming increment (3rd July 2004) should have been included in the calculations for his voluntary severance package. However, the fact remains at the time he was raising these issues, he had not applied for VLS/04. He was aware of the closing date for applications. His issue is something that could have been resolved without removing himself from being considered for this severance scheme. I have no jurisdiction to examine alleged maladministration or other less favourable treatment unless it is linked to a discriminatory ground. The complainant has failed to establish facts to show that this issue over the inclusion of his increment in redundancy calculations by Eircom Ltd is linked, in any way, to his age. Therefore, he has not established a prima facie case of discriminatory treatment in relation to VLS 19/04.
5.4 There were five other VLS schemes that the complainant could have availed of and he did not. Regarding 21/05, I accept the respondent's contention that it is entitled to avail of the defence in Section 34(3) of the Acts:
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.
I have concluded my investigation of Raymond J. McGovern's complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Acts, that the complainant has not succeeded in establishing facts from which it may be presumed that Eircom Ltd discriminated against him on the grounds of age within the meaning of 8(6) (c) of the Acts.
3rd September 2010