INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011
NATIONAL UNIVERSITY OF IRELAND MAYNOOTH
(REPRESENTED BY MARGUERITE BOLGER, S.C., INSTRUCTED BY RONAN DAY JERMYN SOLICITORS)
- AND -
Chairman: Ms Jenkinson
Employer Member: Mr Murphy
Worker Member: Mr Shanahan
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.
2. The Worker appealed the Decision of the Equality Officer to the Labour Court on the 1st December, 2014. A Labour Court hearing took place on the 14th April, 2015. The following is the Court's Determination:-
This is an appeal by Ms. Mary Keane against the Decision of an Equality Officer in a complaint against her former employer the National University of Ireland Maynooth, alleging discrimination on the age ground under the Employment Equality Acts 1998-2011 (hereafter the Acts). Ms. Keane alleged that she was discriminated against on the ground of age contrary to Section 6(2)(f) and Section 8 (1) of the Acts when the Respondent refused to allow her to return to work on a contract or occasional basis following her retirement.
For ease of reference the parties are given the same designation as they had at first instance. Hence Ms. Mary Keane will be referred to as “the Complainant” and the National University of Ireland Maynooth will be referred to as “the Respondent”.
The Complainant referred her claim under the Acts to the Equality Tribunal on 15thMarch 2011.
The Equality Officer found against the Complainant’s claim and concluded that the Respondent’s retirement policy was objectively justified. The Complainant appealed this Decision to the Court.
The Equality Officer had contemplated making a reference to the CJEU for a preliminary ruling on the issues arising in the case under Article 267 of the TFEU. However following submissions by both parties that such a reference would be inappropriate and unnecessary he decided against doing so and gave his Decision in the case.
The Complainant was employed by the Respondent as an Executive Assistant from 2000 until she retired on 30thSeptember 2010 in accordance with the Respondent's Pension Scheme which provides for retirement to take effect on 30thSeptember following an employee's 65th birthday.
The Complainant sought to return to the University after her retirement as an 'occasional' or 'contract' employee. She claims that other members of staff were facilitated in so doing in the past. The Respondent contends that a small number of staff were re-employed after retirement in exceptional circumstances relating to the nature of the work in which they were engaged. The Complainant contends that there was a significant shortfall in her pension entitlements (by reason of her relatively short service) and she wished to work up to age 66 (the age at which the Social Welfare Old Age Contributory Pension is payable).
The Equality Officer stated that the Complainant’s complaint was that “she was not allowed to work past retirement age and was forced to retire on 30thSeptember 2010 and this amounts to age discrimination”.
It would appear to the Court that the characterisation of the Complainant's claim before the Equality Officer as being for continuation of employment after reaching retirement age was not an entirely accurate interpretation of her complaint under the Acts. However he proceeded to hear the case on that basis. The Respondent sought to rely on the Employment Control Framework (ECF) as a justification for the imposition of a mandatory retirement age.
The Complainant was not professionally represented either at the hearing before the Equality Officer nor at the appeal hearing before the Court. At the outset of the appeal hearing the Court sought clarification from the Complainant as to the exact nature of her complaint under the Acts and she confirmed that the substance of her complaint was that her request to return to work on a casual or occasional basis after her retirement was turned down by the Respondent in a situation where others over the age of 65, post-retirement, were allowed to do so. She confirmed that she was not claiming that the termination of her employment by way of retirement was unlawful/discriminatory.
The Respondent disputed the claim.
The Law Applicable
By the combined effect of Sections 6(2)(f) and 8(1)(d) of the Acts discrimination in relation to different treatment on the ground of age is rendered unlawful.
The Complainant claims to have been discriminated against on the ground of her age contrary to Section 8 of the Act. Before such a claim of discrimination can be made out the Court must be satisfied that the Complainant was treated differently and less favourably than another person in comparable circumstances is, was or would be treated. Therefore the Court must examine the treatment afforded in similar circumstances to a comparator, actual or hypothetical. Therefore the Complainant must demonstrate that the treatment which she was afforded was less favourable that that afforded to a comparator whose circumstances are similar other than that that person was of a different age.
In advancing her case, the Complainant relied upon actual comparators who were of the same age as her, age 65 and thereforediscrimination on the age ground does not arise. The Complainant’s allegation is that other people of age 65, were allowed to continue working after retirement but she was not. A person of the same age as the Complainant does not constitute a valid comparator within the meaning of the Acts which in Section 6 (2)(f) expressly state that a comparator must be a person of a different age.
Section 85A of the Acts provides, in effect, that it is for the Complainant to establish the primary facts upon which her complaint is based. No evidence of less favourable treatment on the age ground has been proffered to the Court. While the refusal to allow the Complainant return to work on a casual or occasional basis may or may not be considered unfair, however, that is not a basis upon which the Court could draw an inference of discrimination.
In these circumstances the Court must conclude that the Complainant has failed to establish the facts of sufficient significance to raise an inference of discrimination on the ground of her age. In these circumstances her claim cannot succeed.
The appeal is disallowed and the Decision of the Equality Tribunal is varied accordingly.
For the avoidance of any doubt the Court makes no finding on the Respondent’s reliance on the Employment Control Framework as a justification for the imposition of a mandatory retirement age.
Signed on behalf of the Labour Court
29th April, 2015Caroline Jenkinson
Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.