EMPLOYMENT EQUALITY ACTS
Decision DEC - E2012 - 119
(represented by SIPTU)
Q Park Ireland Limited
(represented by IBEC)
File Reference: EE/2009/658
Date of Issue: 7th September, 2012
Headnotes: Employment Equality Acts - Section 6(2)(f) - Section 8(6)(c), Dismissal - retirement ages - Section 34(4) - no fixed retirement age
1.1. This case concerns a complaint by Mr George Harte (hereinafter referred to as "the complainant") that he was discriminated against by Q Park Ireland Ltd. (hereinafter referred to as "the respondent") on the ground of age, contrary to section 6(2)(f) of the Employment Equality Acts, 1998 to 2008 ("the Acts"), in relation to dismissal, contrary to Section 8(6)(c) of the Acts.
2.1. The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 4th September, 2009, alleging that the respondent had discriminated against him on the ground of age.
2.2. Written submissions were received from both parties. On 10th February, 2012, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Gary O'Doherty, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Acts, on which date my investigation commenced. A hearing of the complaint was held on 12th June, 2012. Further information was sought from the respondent and final correspondence in this respect was received on 20th June, 2012.
3. Summary of the Complainant's case
3.1. The complainant stated that he began working with the respondent's predecessor, X Ltd., in 1989. He stated that X Ltd. was taken over by Y Ltd. in 2002 which, in turn, was taken over by the respondent in 2003. He stated that he never received a contract of employment from these employers and was not informed about his terms and conditions of employment except for his pay and working hours. In particular, he stated that he was never told about a retirement age. He stated that, when X Ltd. was being sold, he asked whether he would be made redundant because of his age and was told he would be able to continue working. He stated that the first conversation he had with the respondent about his retirement age was in or around March, 2008 when he stated that the Chief Executive Officer (CEO) of the Respondent asked him was he going to retire and he responded "ask me when I am 75".
3.2. The complainant stated that, on 6th April, 2009, he received a copy of a letter from his supervisor, Mr. A, which listed a number of people who were going to be required to retire that year. He noted that his name was included on this list. He stated that this was the first time he became aware that the respondent was going to force him to retire and he had never been asked to retire or told to retire before this. He said that he did not receive any retirement policy prior to receiving this letter from Mr. A.
3.3. The complainant acknowledged that, shortly afterwards, he received a letter from Ms. B, the respondent's HR Manager. He said that this letter stated that she was including the respondent's new recruitment policy with the letter, but it was not included. He stated that he thought he did not receive a copy of that policy until he met with Ms. B following sometime in August, 2008. In that context, he stated that this was the first time he became aware that he could have applied for an extension of his retirement age as it was the first time he saw that policy. In any event, he stated that he did not think that the respondent would have granted him the extension, as he was 73 years of age at that stage. He later stated that he did not receive a copy of this policy until 1st September, 2009 when he said he was forced to retire.
3.4. The complainant stated that when he attended work on 1st September, 2009, he was told by the CEO to leave the premises as he no longer worked there. Upon request by the complainant, the CEO provided this in writing to him. When the complainant asked why he was being required to retire, the CEO responded by saying "the retirement age is 65 and that is it" and walked away. The complainant also denied that the respondent wrote to him in 2006 about the PRSA arrangement it had put in place. He stated that he was not in receipt of any pension from the respondent. He said that he did not know whether he had otherwise been made aware of the PRSA scheme in question, or any other pension scheme. In any event, he stated that he would not have been eligible to sign up to it as he was over 65 by that time.
3.5. In summary, the complainant stated that he was dismissed because of his age by being forced to retire and that this was discrimination on the age ground. He stated that the employer did not set a fixed retirement age prior to 2008, pointing out that there were seven employees who were over the age of 65 at that time. He said that the respondent then sought to introduce a fixed retirement age but did so unilaterally and without consultation. He stated that he was not informed of the retirement age prior to 6th April, 2008 and he was not made aware of the right to an extension at that time as he had not seen the retirement policy. He stated that, in any event, Section 34(4) of the Acts must be interpreted in the light of Article 6 of the Framework Directive. He said that, in that context, the respondent must provide objective justification for implementing a fixed retirement age and it had not done so.
4. Summary of the Respondent's case
4.1. The respondent stated that it had always had a fixed retirement age of 65 and provided documentary evidence to support this contention. It stated that contracts of employment were not provided to all employees before 2009, although all managers (and certain other workers) received same. It provided sample copies of these to the Tribunal. It acknowledged that seven employees, including the complainant, had been allowed to remain working after the age of 65 but that they were only allowed do so at the discretion of the CEO. It stated that the complainant was clearly allowed to stay on but was among a small number of people who were allowed to do so.
4.2. The respondent stated that it sought to formalise its existing retirement arrangements when it introduced a new retirement policy in 2008. The respondent stated that this new retirement policy was part of a review of all its policies that was undertaken at that time. It stated that they were reviewed and discussed at a meeting with Managers and Senior Parking Hosts in June 2008. It stated that the principal changes to the retirement policy that arose as a result of the review were: a formalisation of the extension; the provision of a pre-retirement course; the formalisation of pre-retirement discussions with employees (which, it stated, it would have expected to have been done before in an informal manner). It stated that the retirement age was not changed as it had always been 65.
4.3. The respondent stated that it did not consult directly with employees about these policy changes. However, it stated that managers and senior parking hosts were told by the CEO to consult with staff about the draft policies after the June, 2008 meeting and before the policy was finalised in August 2008. It stated that the policies were then distributed by e-mail to all staff. Where staff did not have e-mail, such as the complainant, it said that the policies were sent to the relevant office for distribution to the staff attached to that office. It stated that it had sent a list to each office and requested Managers to confirm with their staff that they had read the policies. It stated that it had followed up with the relevant office for the complainant but it never received confirmation from it that he had read the policies in question.
4.4. The respondent submitted that it provided over a year's notice to all employees that those over the age of 65 would be required to retire on 1st September, 2009, but that they could apply to the CEO for an extension should they wish to do so. In that respect, Ms. B, who was at the hearing, stated that she wrote a letter to the complainant dated 6th April, 2009 informing him of his pending retirement. She stated that she gave this letter to the complainant's Manager to give to him. She stated that the retirement policy in question was included with this letter. She stated that, as the complainant was thus informed that he could apply for an extension and did not do so, it proceed with the necessary arrangements to facilitate his retirement on 1st September, 2009. It submitted that 6 employees over the age of 65 retired on that date.
4.5. Ms. B could not recall whether the complainant told her in their meeting in June, 2009 that he had not received the retirement policy in question. She stated that they did not discuss the extension of retirement age at that meeting as their discussions related solely to the provision of a retirement package. She stated that, in that respect, the complainant was provided with an additional four weeks pay upon his retirement. She stated that, since the introduction of the Retirement Policy, only one person has applied for an extension of their retirement and this application has been granted. She said that the decision was made by the CEO following a meeting with that person and that person is required to reapply each year. She stated that no objective criteria are applied to that decision and it is taken solely at the discretion of the CEO.
4.6. The respondent stated that it always had a retirement age of 65 and Section 34(4) of the Acts, which allowed it to fix retirement ages, applied in this case. It stated that the retirement age had been set by Q Park Global and was introduced to provide consistency across all ten countries in which it operated (these countries being nine EU countries and Norway, which is an EEA member). However, it stated that it had no evidence to present to the Tribunal that the fixed retirement age set by it was objectively justified in the context of Article 6 of the Framework Directive. It added that it wrote to all its employees, including the complainant, in 2006 with respect to the PRSA which it had set up and into which fund it contributed a matching funding of up to 10% where an employee also contributed same.
4.7. In summary, the respondent submitted that the complainant retired from his employment on 1st September, 2009 having been provided with a year's advance notice of its intention to adhere to its companywide retirement policy of retirement at 65. It strongly refuted his contention that at no time was he ever advised that he would be expected to retire. It stated that there was some custom and practice to extend the age beyond 65, but the policy was formalised in 2008. It stated that the complainant did not avail of the opportunity to apply for an extension that was provided for in that policy. In short, it submitted that he could not have any legitimate expectation of working without the direct approval of the CEO beyond 1st September, 2009. It added that he was a very good employee and there was no issue with his capacity to perform the duties required of the post in question.
5. Conclusions of the Equality Officer
5.1. Section 85A of the Act sets out the burden of proof which applies to claims of discrimination. It requires the complainant(s) to establish, in the first instance, facts upon which he/she/they can rely in asserting that he/she/they 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.'1
5.2. Section 6(1) of the Acts provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds..." Section 6(2)(f) of the Acts defines the discriminatory ground of age as follows - "as between any two persons ..... that they are of different ages"). The issue for me to decide in this case, then, is whether the complainant was subjected to less favourable treatment in comparison to (an)other person(s) on the ground of age with respect to his dismissal by the respondent. In reaching my decision in this case, I have taken into account all of the submissions, both oral and written, made to the Tribunal in the course of its investigation.
5.3. I am satisfied that the complainant was not subject to any retirement policy prior to September 2008. While some managers may have had retirement ages built into their written contract of employment, the complainant did not even have such a contract. Indeed, it is abundantly clear that, prior to September 2008, the vast majority of the respondent's employees who turned 65 while working for it continued in their employment when they passed that age. In fact, there is no evidence that anyone who was not a manager retired when they turned 65.
5.4. In that context, the respondent sought to introduce a retirement policy in September 2008. The respondent has not provided any evidence to rebut the complainant's statement that he did not become aware of this until April, 2009 when he was informed by Ms. B that he was to retire the following September, and I have no reason to disbelieve that statement. In any event, the respondent discriminated against him on the age ground by forcing him to retire when younger employees were not required to do so.
5.5. In rebuttal, the respondent relied upon Section 34(4) of the Acts which provides an exemption from the application of the Acts to employers who fix retirement ages for employees. The respondent did not have a fixed retirement age prior to September, 2008. It then sought to unilaterally impose a retirement age on the complainant (as on all employees). I am satisfied that the complainant did not agree to this change in the terms and conditions of his employment. It was argued by the respondent that he did so agree as he did not object to arrangements that were put in place to facilitate his retirement. In particular, it submitted that his failure to apply for an exemption should be taken as consent. However, I note that the complainant turned up for work on 1st September, 2009. If he had agreed to retire, he would not have done so. Furthermore, he left the premises only after the respondent insisted upon it.
5.6. So the respondent sought to bring in a retirement age to which the complainant would not agree. In that respect, I note that the High Court found in Donegal County Council -v- Porter2 that where the respondents were employed on the basis of a legitimate expectation and where nothing has occurred in the intervening years which could be said to alter that state of affairs by consent, an attempt to force them into retirement by dismissal at a certain age was an attempt to unilaterally alter their contractual situation and would be in breach of contract unless it can be justified in some other lawful way3. I am satisfied that this principle is applicable in the present case. Therefore, it cannot be said that the respondent fixed a retirement age on the complainant in any legitimate manner.
5.7. Furthermore, and in any event, it is well established by this Tribunal, and elsewhere, that Section 34(4) must be interpreted in light of the relevant EU Directive4. As McKechnie, J. stated in Donnellan -v- Minister for Justice,5 "Any discrimination with regards to age must, as put by that Directive, serve a legitimate aim or purpose, and the means taken to achieve that purpose must be appropriate and should go no further than is necessary, i.e. they should be proportionate." In the present case, the respondent did not present any arguments that the discrimination of Mr Harte by it served any legitimate aim or purpose. In that context, Section 34(4) cannot apply.
5.8. As no other rebuttal was presented by the respondent, I find that it discriminated against the complainant on the ground of age by forcing him to retire on 1st September, 2008 and thereby terminating his employment in an unlawful manner.
6.1. Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008:
6.2. I find that the respondent discriminated against the complainant on the age ground pursuant to section 6(2)(f) of the Acts in terms of dismissal contrary to s.8(6)(c) of the Acts
6.3. In accordance with Section 82 of the Acts, I order the respondent to pay to the complainant the sum of €15,000 (being the approximate equivalent of nine month's salary) in respect of the discrimination. This award is made to compensate the complainant for the distress caused to him as a result of the discrimination by the respondent. In that context, it is not in the nature of pay and is, therefore, not subject to tax.
7th September 2012
1 EE5/1986 Gibney v Dublin Corporation
2 High Court unreported (Flood J) 23 March 1993.
3 See also, for example, the Employment Appeals Tribunal case of McIntyre -v- Leitrim County Council  Case No. UD926/2004
4 Council Directive 2000/78/EC
5  IEHC 467