Employment Equality Acts
DECISION NO: DEC-E2017-003
A Presiding Officer
(Represented by Berwick Solicitors)
A Returning Officer
File Nos. et-156586-ee-15
Date of Issue: 13th January 2017
1.1 This dispute concerns a claim by (the complainant) that she was subjected to discriminatory treatment by A County Registrar (the respondent) on the age ground in terms of section 6(2)(f) of the Employment Equality Acts (hereafter referred to as 'the Acts'), and contrary to section 8 of those Acts when the respondent imposed a mandatory retirement age of 70.
complainant referred a claim of discrimination to the Director of the Equality Tribunal on the 18th May 2015 under the Acts. On 20th September 2016, in accordance with his powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission referred the case to me, Peter Healy, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. I proceeded to hearing on 2nd December 2016. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83.3 of the Workplace Relations Act 2015.
2. SUMMARY OF THE COMPLAINANT'S SUBMISSION
2.1 The Complainant is a house wife and was first appointed as polling clerk in 2002. Subsequently she was appointed to presiding officer in 2004 and since then has presided over twelve polls including general, local, European, referendums and one presidential election. On the 22nd April 2015 the Claimant received a letter from the Respondent, Mr. stating that he was “introducing a retirement age of 70 years going forward”. It further goes on to state “I note from my records that you have achieved this age. I regret that I will not be in a position to employ you in the future”,
2.2 The Claimant was upset and disappointed and inquired of a number of council offices around the country, as to whether or not such an age requirement had been applied in these constituencies by the local returning officer. The complainant submits that all of these offices confirmed that no such age requirement had been imposed. On foot of this the Claimant then arranged a meeting with the Respondent on the 6th May 2015. The complainant submits that at that meeting the respondent stated that “how do I know what a 70 year old is capable of doing”?. Despite the solicitors for the Complainant requesting the Respondnet to reinstate her, he has refused to do so leaving the Claimant with no alternative but to bring a claim under the Employment Equality Act.
2.3 The Complainant submits that she has experienced embarrassment and distress on a number of social occasions following the elections when she had to confirm to friends and neighbours that the reason she was no longer attending at the polling station at was that she had been told that she was too old as she had turned 70 despite her having been present there for the previous twelve elections. As no age limited had been applied nationally on polling personnel the Claimant believes that she has been discriminated against on the grounds of her age.
Legal submissions by the Complainant
2.4 .European Council Directive 2000/78/EC requires any differences in treatment on grounds of age to be objectively justified. In the case of John O’Neill v Fairview Motors Ltd DEC-E2012-093, the Equality Tribunal held that the respondent discriminated against the complainant on the grounds of age in terms of section 6 (2) of the Employment Equality Acts 1998-2008. The Tribunal confirmed that Irish courts
“have an obligation to interpret the Equality Acts in a manner that is harmonious in light of Directive 2000/78/EC”
2.5 In the case of Jimmy Moran -v- Irish Pride Bakeries DEC-E2016-072 a primary factor in determining the discriminatory basis of the dismissal was inherent to the fact that there was no specific retirement age and no such mandatory retirement age had been mentioned in documentation before this. He was forced to retire due to the creation of this new retirement policy. Ultimately, the Equality Officer held that “the complainant was subject to a discriminatory dismissal on the grounds of age, contrary to section 8 of the Act”. This case is indicative of the importance of employers acting reasonably and in coherence with correct procedures.
3. SUMMARY OF THE RESPONDENT'S SUBMISSION
3.1 The respondent rejects the allegation of discrimination. He is a returning officer in an area that encompasses a quarter of a million voters. He employs personnel for one day a year on average and maybe for a second day in respect of any election and /or Referendum called.
3.2 The respondent submits that at the conclusion of any one event no person employed by him is entitled to be re-employed in any future Election/Referendum. At each event I enter in to a separate and unique contract of employment. Once employees have been paid for their work I issue them with a P45. Therefore each event is no guarantee of being re-employed.
3.3 The respondent submits that a number of years ago he decided to introduce a retirement age. In the case of presiding officers and poll clerks he felt that an appropriate age at which he would not reemploy them should be 70 years of age. This is the criteria he applied to the complainant. He submits that the reasons for the introduction of a retirement age is as follows,
He employs almost 850 people for one event in three constituencies. The respondent submits that the retirement age is necessary and in accordance with public policy and practice throughout the state where the average retirement age is 65 years.
The respondent submits that he knows very few of the Presiding Officers and Polling Clerks personally due to the nature of the employment relationship. He does not have the resources or time to interview them and to assess their physical or mental capacity to carry out their functions. The respondent submits that in a general sense capability does become an issue as people reach their seniority. The respondent submits that there have been a number of persons employed in the past who were or retirement age who had health issues and were not capable of carrying out their duties. If an employee lacks the capacity to run a polling station then there is a danger that the integrity of his/her polling station is compromised and such a risk is unacceptable.
3.4 The respondent submits that the corollary of the implications of the complainant’s position is that he would be required to employ staff ad infinitum until they advised me that they would not be taking up their positions. The respondent wrote the complainant as a matter of courtesy to advise her he would not be reemploying her.
Repose to legal submissions.
3.5 John O’Neill v Fairview Motors Limited The respondent submits that the quotation set out must be measured against the context of the position held by the Claimant as Presiding Officer and the sporadic and unusual nature of the circumstances of her employment.
3.6 Jimmy Moran v Irish Pride Bakeries In this particular case JM was permanently employed with the Respondent and the comments made must be seen in this light. The Claimant here was only employed by me for one day and then her employment was terminated. Her employment has been for a one day event per year in the last few years except when there were 2 events in one year. However heretofore in the past a number of years could pass without there being any Event held and this could possibly be the way going forward.
The respondent submits that If he were to advise all my staff, whether already having been employed or about to be employed, that there was a retirement age of 70 years it could be interpreted and argued that they would be entitled to be employed by me until that age. The quotation ignores the transient and erratic nature of the employment and the employment and re-employment of personnel working in the electoral system.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent discriminated against the complainant on grounds of age, in terms of section 6 of the Acts and contrary to section 8 of those Acts, in relation to access to employment
4.2 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 from which discrimination may be inferred. 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.
4.3 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc  IRLR 246, stated that "... the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent ...".
The Employment relationship.
4.4 It is agreed that the complainant is an employee of he respondent for usually one day a year for the last 12 years. Regardless on the limited time of employment and the sporadic nature I am satisfied the complainant in terms of the Acts is an employee of the respondent and can be afford their protection. The complainant has framed the existing complaint in terms of “getting a job” in reaction to the introduction of a retirement age by the respondent. I am satisfied that in relation to the complainant this means she will not be re-employed due to her age. However, it was established at the hearing of this complaint that the only method for the employment of presiding officers and polling clerks is to have their name on an already existing list. The respondent has by removing her name from that list effectively removed a reasonable expectation of continued employment. I am satisfied that for the purposes of the acts that the complainant is an employee of the respondent and that the “introduction of a retirement age” using the respondents phrase constitutes dismissal of an existing employee.
4.6 At the hearing of this complaint I made the respondent directly aware of the provisions of the acts and directly requested that he provided me with objective justification.
(4) Without prejudice to subsection (3), it shall not constitute discrimination
on the age ground to fix different ages for the retirement (whether voluntarily or
Compulsorily) of employees or any class or description of employees if—
(a) it is objectively and reasonably justified by a legitimate aim, and
(b) the means of achieving that aim are appropriate and necessary.]
4.7 Having examined the written submissions by the respondent and taking in to account his oral evidence at the hearing I can find nothing presented by the respondent that addresses the requirement for objective justification.
While the respondent has vaguely alluded to the need to replace staff at some point, he has presented no evidence of any empirical process which examined the demography of his workforce. Although the age of his workforce is available to him, it is the respondent’s submission that he has never referred to such data. While, I accept in a general sense that a retirement age is required, the respondent has presented no evidence to confirm that that age should be 70 for his employees. The Respondent made the decision to introduce a retirement age entirely by himself without any consultation or reference to any reports, investigation or data or any kind.
The respondent does submits that he chose 70 as it is consistent “with public policy and practice throughout the state where the average retirement age is 65 years”. I cannot accept this as a valid argument as it does not address discrimination as set out under the acts.
Taking into account the above it is clear that the imposition of a retirement age in this case was an entirely arbitrary decision. The complainant has been advised that she will no longer be employed based entirely on her age and with reference to no other criteria.
4.8 The respondent has submitted that there is no obligation on him to re-employ individuals once a P45 has been issued. However the mechanism for further employment is simply to have ones name on a list of employees. I find that removal of individuals from that list based entirely on their age is a discriminatory act, further any arbitrary arrangement but in place to exclude individuals based on an age is discriminatory.
5.1 6. I have concluded my investigation of this complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that
(i) the respondent has discriminatorily dismissed the complainant on the ground of gender.
Therefore, I find for the complainant.
5.2 I hereby order, that
(a) the respondent pay the complainant the sum of €3000 in compensation for the effects of the discrimination. This figure represents compensation for infringement of her rights under employment equality legislation in relation to discrimination and does not include any element relating to remuneration and is therefore not taxable.
(b) the respondent reinstates the complainant on the list used to appoint Returning Officers.
12th January 2016