ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001251
Complaints for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00001681-001 | 24/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00001681-002 | 24/12/2015 |
Date of Adjudication Hearing: 10/05/2016 and 10/06/2016
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint(s) to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Complainant’s Submission and Presentation:
As the complainant was approaching his 65th birthday in August 2015 he was informed that in order to have his contract extended he would have to meet a number of conditions.
These were that he would have the approval of his line manager (which was granted), medical certification of fitness to work and clearance from the insurance company in respect of a ‘Death in Service’ scheme (hereafter ‘The Scheme’) in order to avail of a one year, fixed term extension to his contract of employment, which was a standard practise in the company.
The HR department presumed this would not be an issue as another employee had just gone through the same process successfully.
However, there was a delay in receiving the information from the Insurance company even though the complainant’s doctor had certified him as fit for work.
The HR department remained of the view that there should not be an issue and even had the complainant scheduled to work after his 65th birthday.
In due course the insurance company contacted the HR department with a decision to the effect that a health condition which the complainant had (and had for some years prior to this) rendered him ineligible for continued participation in The Scheme.
The complainant had already been through this process with the Insurance company successfully after he had had his stroke.
At that point the respondent contacted the complainant to say that he would not be able to come to work as scheduled and his employment would cease on the 12th of August; the date of his sixty-fifth birthday.
In addition he had not given or paid for the required notice period of six weeks notice. (Following the adjournment of the first hearing this payment was made and that claim was withdrawn).
Respondent’s Submission and Presentation:
The respondent says the Scheme is a valuable benefit to the employees, as well as having some benefits for the company in a general sense; it does not benefit in any way directly when a policy is paid. It is underwritten by a third party insurance company which requires the participation of all employees in the company in The Scheme.
A retirement age of sixty-five years in specified in the complainant’s contract of employment, but in view of the raising of the eligibility age for the State Old Age Pension to 66 the company has facilitated employees by continuing their employment on a fixed term contract for one further year.
The offer to do so is conditional on meeting all four of the following requirements
The applicant must apply within a period three months before his retirement date
S/he must pass a medical carried out by the company doctor
They must also undergo a type of ‘medical’ (in fact a telephone interview) with the third party insurer, and finally, the applicant it will require the agreement of the line manager.
In the event the Scheme insurer advised the respondent that it could not include the complainant as a result of his health status. The respondent offered to meet the cost of any additional premium necessary to bring the complainant within cover and when this was declined sought cover from another provider. This latter option proved too expensive.
The respondent says that there is no unlawful discrimination because all employees within the age cohort are treated the same. Extension of the contract of employment is offered subject to the employee meeting the same conditions as were put to the complainant.
Although the respondent was not provided with any specific information as to why the insurer declined cover to the complainant it says that in light of the identified risk to the employer to have continued to employ him would have been unreasonable.
Conclusions and Findings
I have considered all the relevant evidence, oral and written that was laid before me before and in the course of the hearing.
Turning to the Scheme at the heart of this problem it needs to be carefully defined.
Without doubt it is a valuable benefit to serving employees, but it would seem, exclusively those employees, (or more accurately their families following their death). The respondent benefits to the extent that it is an attractive inducement to potential employees but the submission that it may act as a deterrent to relatives of a deceased employee taking proceedings against the company may be somewhat fanciful.
It could be seen as part of the type of benefits package that often includes health insurance, travel ‘perks’, bonus schemes or the like.
By no view of it is it a pre-requisite to carry out the respondent’s operations, or to provide some indemnity in the event of unforeseen events. It is not like a driver’s licence, nor a skill qualification or professional registration or indemnity insurance, for example, which might be necessary to discharge the duties required.
In general, an employer with reasonable grounds to do so is entitled at any time to confirm the continuing capacity of an employee to discharge their duties, regardless of their age.
But in this case the complainant had been certified fit and to have the capacity to do precisely that beyond the age of sixty-five by the company doctor. The respondent’s submission that ‘in light of the identified risk to the employer to have continued to employ him would have been unreasonable’ is demonstrably untrue; the complainant had been certified by its own doctor as fit t continue working, so where was the risk?
So, at one level there is a simple enough question to be decided here. Why is participation in The Scheme so vital, or even relevant to continued employment either at sixty five or at any stage?
Participation in the respondent pension scheme is optional yet, participation in what might be regarded by some as a less valuable scheme (certainly as far as surviving former employees might see it) is somehow regarded as having to be made compulsory.
In its submission the respondent stated that this was a requirement of the underwriter. That is a matter for the underwriter which may simply be seeking to maximise its business. Its relevance here is whether, regardless of the views of the underwriter, it is lawful to have and apply such a requirement which may have the effect of causing the termination of the complainant’s employment in pursuit of something which is not a requirement for employment at all.
One question for the respondent is, given the nature of the policy and the fact that the employee alone is the beneficiary, why the requirement to have be in the scheme was simply not waived in order to enable the complainant to fulfil the additional year at work, and subject only to his capacity to carry out his duties. It appears the only one requiring the policy is a third party insurer.
However, the main question is whether this breaches the provisions of equality law. The respondent is operating a practise which effectively allows a third party insurance company to determine which of its employees in, or approaching their sixty sixth year should be granted an extension of their employment.
In particular, if in general an employee is fit for work, on what basis can he be lawfully denied the opportunity to do so if that is a standard practise in the respondent company.
As noted above the complainant had suffered his illness some years earlier and had returned to work without any difficulty arising from the Scheme requirements.
It seems from the complainant’s evidence that he successfully navigated that process after his stroke and that on this occasion the requirement (to undertake the assessment) was purely age related and prima facie discriminatory.
If the respondent could competently work for the respondent up to and on August 11th 2015, but could not do so on August 13th for reasons unconnected with his capacity to carry out his work responsibilities competently and safely (and was medically certified as fit do so) then this is the de facto existence of an unnecessary, age related requirement to do the job that renders the company’s actions unlawful.
So on August 11th the complainant was perfectly fit it be employed, his employer was willing to continue him in employment but by August 13th he was not, because he could not comply with the Scheme requirements and had passed his sixty-fifth birthday.
If the conditionality related to capacity to do the job that would be another matter. But the company operates a provision where all its employees may work beyond sixty-five. In doing so it may not then impose conditions which do not apply to employees under sixty five, or which do not affect a person not suffering a condition to which the insurance company takes exception unless it can be justified objectively.
Further, to the extent that the complainant has an ongoing condition which might be seen as a disability the same set of arguments apply. To introduce a test such as it did here, which again is not objectively justifiable and effectively discriminates against the complainant on the grounds of a disability is a breach of the section 6 (2) (g) of the act.
I conclude that the company’s requirements for extension of the contract of employment are discriminatory on both the age and disability grounds
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 was withdrawn.
I uphold the complaint under the Employment Equality Acts and award the complainant €8,500 compensation. This award is for the breach of his rights under the Act and is not subject to tax.
Under section 82 of the Employment Equality Acts I order the company to discontinue its requirement that membership of the Death in Service scheme be a condition for the extension of the contract of employment in that it has a tendency to indirectly discriminate against employees on the grounds of age and/or disability and that medical certification of capacity should suffice.
Dated: 15 July 2016