INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011
MAYNOOTH MISSION TO CHINA INC. T/A COLUMBAN MISSIONARIES
(REPRESENTED BY MILLETT & MATTHEWS SOLICITORS)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr Hayes
Employer Member: Ms Cryan
Worker Member: Mr McCarthy
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2015
2. This is an appeal made pursuant to Section 83 of the Employment Equality Acts, 1998 to 2015. A Labour Court hearing took place on 10th November 2015. The following is the Court's Determination:
This is an appeal under section 83 of the Employment Equality Acts 1998 – 2015.
The complainant worked for the respondent for 18 years until she reached the age of 65 years. She was not provided with a written contract of employment when her employment commenced. On commencing employment she was joined in a pension scheme operated by the respondent. That scheme makes provision for a normal retirement age of 65 years. The Claimant was so advised each time she received a pension statement from the scheme administrators. Such statements were issued annually. In addition the trade union of which she was a member concluded a collective agreement with the respondent company in 1997 that makes provision for a normal retirement age of 65.
In October 2010 the respondent company provided the complainant with a contract of employment that stipulated a retirement age of 65. She did not accept that provision in the contract. However the respondent company proceeded to terminate the complainant’s employment through retirement within days of her reaching her 65thbirthday. Having done so, it employed her on a 1 year fixed term contract of employment. The complainant corresponded with the respondent objecting to the one year nature of the contract. She further requested that she be allowed remain in employment “into the future”. The respondent company did not accede to that request and terminated the complainant’s employment on her 66thbirthday.
The complainant then submitted a complaint under the Employment Equality Act in which she alleged that she was discriminated against on the age ground. The Equality Officer, by way of a decision issued on 29 June 2015 held against the complainant. The complainant appealed against that decision to this Court and the case came on for hearing on the 10thNovember 2015.
The complainant argues that she was employed on an open ended contract of employment that made no provision for compulsory retirement at age 65. She argues that on reaching her 65thbirthday she was allowed continue working and that some days later she was dismissed from employment on the grounds that she had reached the age of 65. She argues that her employment was then unilaterally extended under a fixed term contract of employment for a period of one year. She argues that she did not approve that contract of employment and always considered herself to be employed under her original contract that was open ended. She argues that when it became clear that the respondent company would not continue her in employment beyond age 66 she made application for her entitlements under the pension scheme as she had no other means of support. She argues that she at all times disputed her dismissal and at no time gave her consent to same. She finally argues that other members of staff were permitted to remain at work beyond the age of 65 and 66 years of age. She argues that she was accordingly discriminated against on the age ground by being dismissed from her employment on reaching age 65 and again on reaching age 66.
The respondent argues that the complainant was employed on a standard contract of employment that made provision for her retirement at age 65. It argued that the complainant was retired from work on reaching that age. She was subsequently continued in employment on a one year fixed term contract of employment for a further period of one year. It argued it did so pursuant to section 6(3)(c) of the Act and that its decision to so is consistent with the Act. It argues that the complainant was aware that her retirement age was set at 65 years. In support of that assertion it submits copies of pension statements issued to the complainant over the course of her employment. It also submits copies of a collective agreement in place in the Company that was agreed with her trade union. That collective agreement makes provision for retirement at age 65. It argues that the complainant was retired when she reached 65 years of age. It argues that the complainant was required to bring proceedings under the Act within six months of that date. It argues that she did not do so and accordingly is statute barred from bringing the present complaint. It further argues that it is, pursuant to section 6(3) (c) of the Act, entitled to give the complainant a one year fixed term contract of employment and that no cause of action arises out of its decision to terminate her employment on the expiry of that contract of employment. It finally argues that the complainant has made out no substantive case and has provided no comparators to ground the complaint it has set out to the Court.
The Act defines discrimination as
6.—(1)For the purposes of thisAct, discrimination shall be taken to occur where, on any of the grounds insubsection (2)(in thisActreferred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.
(2)As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of thisAct) are—
(f)that they are of different ages, but subject tosubsection (3)(in thisActreferred to as “the age ground”),
However where a compulsory retirement age applies the Act contains a provision that allows an employer to offer an employee who is over that age a fixed term contract of employment and such an offer shall not constitute discrimination for the purpose of the Act. It states.
- (a)a person has attained the age of 65 years, or
- (b)a person has not attained the age of 18 years,
c)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.
- (b)a person has not attained the age of 18 years,
- then, subject tosection 12(3), treating that person more favourably or less favourably than another (whatever that other person’s age) shall not be regarded as discrimination on the age ground.
Section 12(3) is not relevant to this case.
Section 77(5) deals with time limits for bringing a complaint under the Act which states
(5)Subject tosubsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under thissectionafter the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.
Issues to be Decided.
At the hearing the parties agreed that there were a small number of net issues to be decided by the Court. The Court is required to determine
1. whether the complaint was submitted outside the statutory time limit
2. whether the respondent company can rely on section 6(3)(c) of the Act in relation to its decision not to employ the complainant beyond the age of 66
3. whether the complainant has met the obligation to identify comparators for the purposes of making out the complaint of discrimination under the Act.
Statutory Time Limit
A simple reading of the Act makes it clear that a complaint under the section must be brought within six months of the date of occurrence of the act of discrimination. In this case the decision to retire the complainant was effected in March 2011. The complaint was not brought until 23rdApril 2012 some 13 months later. Accordingly no complaint regarding the respondent’s decision to terminate the complainant’s employment on reaching age 65 was brought within the six month statutory time limit and any such complaint brought in April 2012 is outside the statutory time limit and statute barred.
The Complainant argues that her employment was in fact continuous and that through the respondent sought to employ her on a fixed term contract of employment she rejected that and continued working under her original contract of employment. She argues that therefore the decision to terminate her employment was in fact taken in March 2012 and the complaint was filed with the Court in April 2012 within the statutory time limit,
The Court finds that the documents opened to it establish as a fact that the complainant’s employment was terminated in accordance with the terms of the pension scheme when she reached 65 years of age. Accordingly the complainant was required to commence a complaint under the Act within six months of the date on which her employment terminated on reaching age 65. The Court finds, as a matter fact, that no such claim was commenced within the time limit and accordingly no matter arising out of that termination is properly before the court.
Section 6(3) (C)
The complainant argues that though the respondent claims that it extended her employment by way of a fixed term contract of employment after she reached age 65 she renounced that contract, continued working under her original contract of employment and was unlawfully dismissed on reaching age 66.
The Court does not accept that line of argument. The respondent as a matter of fact employed the complainant on a fixed term contract of employment after she reached age 65. The complainant at no time renounced that contract. She contested it but continued to work under the terms set out by the respondent. The respondent complied with the terms of that fixed term contract of employment and terminated the complainant’s employment when it expired on the complainant’s 66thbirthday.
- In doing so the respondent relies on section 6(3)(c) of the Act. It states thatc)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 from a simple reading of the Act that the respondent’s decision to offer the complainant a fixed term contract of employment after she exceeded the compulsory retirement age does not constitute discrimination on the age ground. The complainant argues that she did not have a compulsory retirement age and accordingly she does not come within the scope of section 6(3)(c). The Court has considered that assertion in the light of the extensive documentation opened to it by the respondent. Having considered those documents the Court finds as a matter of fact that the respondent operated a compulsory retirement age of 65 in respect of the complainant. It further finds that the complainant was aware of that arrangement and was repeatedly so advised on numerous occasions over the course of her employment. Indeed the complainant’s trade union concluded a collective agreement with the respondent that provided for such a compulsory retirement age. Accordingly the Court finds that the respondent acted pursuant to section 6(3)(c) and accordingly the decision to allow that contract expire does not constitute discrimination on the age ground.
An issue arose regarding a number of comparators whom the complainant argues were permitted to remain in employment beyond age 65. The Court finds that those comparators were not raised at the first hearing of the complaint and cannot now be introduced at the appeal stage.
Moreover the court finds that the comparators relied on by the Complainant were all of a similar age as her when they reached retirement age and accordingly all shared the protected characteristic with her. Accordingly they are not valid comparators for the purposes of the Act.
Accordingly the Court finds that the complainant has not made out a substantive complaint under the Act.
The Court finds that the complaint is not well founded. The Court affirms the decision of the Equality Officer and determines accordingly.
Signed on behalf of the Labour Court
8th December 2015______________________
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.