ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00030978
Parties:
| Complainant | Respondent |
Parties | Noreen Bouse | The Wild Goose Studio (Kinsale) Ltd |
Representatives | None | Mr Andrew Dillon. |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00041526-001 | 13/12/2020 |
Date of Adjudication Hearing: 12/08/2021
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
Procedure:
In accordance Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designated the Workplace Relations Commission as a body empowered to hold remote hearings. The Respondent submitted extensive documentation including signed statements from witnesses who also gave verbal testimony.
Background:
The Complainant had been employed as a general operative from 18 March 1994 on a whole-time employment contract up until April 2017, when she received a flexi-time contract. In the year prior to the termination of her employment she worked an average of 104 hours per month at a rate of €12.33 an hour. The Complainant submits that her dismissal amounted to discriminatory dismissal on age grounds. |
Summary of Complainant’s Case:
On 27 August 2020 the Complainant received a phone call from the Respondent’s Managing Director informing her that she was to be retired from the company with immediate effect. She was given no written or verbal notice prior to this conversation. The Complainant worked for 26 years for the Respondent, and on 2 April 2017 she turned 65 and believed she had reached retiring age. However, the Complainant submits that the Managing Director had asked her to continue working and received a further part-time contract for 12 months which stated that the contract terminated upon the Complainant reaching her 66th birthday. Despite reaching the age of 66 in April 2018 she continued to work part-time on a verbal agreement she had with the Managing Director. During the verbal performance review in January 2020, the Managing Director again asked her to continue working. The Managing Director sent her a letter on 14 September 2020, subsequent to the phone call in August which stated that the Complainant “…was retired from working.” The Complainant accepted that her work hours after signing the contract varied from week to week and that the Respondent was flexible in accommodating her in hours and duties worked. She denied she had misled the Respondent on the matter of her correct age. |
Summary of Respondent’s Case:
In April 2017 the Complainant asked the Managing Director if she could work a shorter week and only up to 4 days at most. The reason that she gave for this was that she found 5 days too tiring and would prefer to work part-time. This resulted in the company drawing up a revised version of her existing contract. This was signed and dated 14th April 2017. Paragraph 4 of the Complainant’s contract states that her position was part time and therefore the hours would be variable: some days she might come in at the normal time with a view to staying for the day but be let go home at lunch time because her work was finished. Paragraph 25 states quite clearly that "this agreement, which is predicated solely on the fact that at present there is sufficient work available on a part-time basis...will automatically terminate on the 66th birthday of the employee". At this time The Respondent believed that the Complainant was aged 63 having given her date of birth as 1954 and believed that she would reach normal retirement age at 65 in 2019. In normal circumstances the Complainant’s contract of employment should have terminated on her birthday in April 2020 when the Respondent believed she reached 66 years of age. The Respondent submits that it is clear from her submission she was in fact 68 and had been receiving the old age pension for two years already. In late March the Respondent placed the entire workforce on the Government EWSS securing a payment of €350 a week for each employee. Prior to that, the Respondent had told everyone to stay at home for the first week of closure and then everyone received a full week's holiday pay by which time the government policy had been clarified. The Complainant should have been given her notice to leave in April 2020 but due to the prevailing circumstances, this was simply overlooked. Because of Covid, there was literally nobody working with the Respondent from late March to late August, with the exception of the General Manager. The Respondent submits that It is true that the Managing Director enquired of the Complainant if she wanted to continue working at the beginning of January, but It is not true for the Complainant to suggest that he requested her to stay. The Complainant’s retirement was due in April 2020. After the Temporary Wage Subsidy Scheme (TWSS) was introduced in late August 2020 the Respondent noticed a mistake vis a vis the Complainant’s position. Management met to consider the entire prospect for the Respondent and considered the chances of the survival of the business. The Respondent laid off two staff members, one being the last in and the other being the office administrator for whom there was no prospect of work in the foreseeable future. The Respondent submits that the Complainant being part time, did not rank in the same level as the remaining three staff who were each offered two days a week at first, largely to tidy up and prepare the entire place and get ready for some real work which the Respondent hoped would arise for the last of the Summer and the Christmas period. There was insufficient work to merit employing the Complainant since the Respondent’s turnover had more than halved as a result of the pandemic and full-time staff members continued to work part-time. Even if there were to be an increase in available work the last worker in, who was put on temporary lay-off and was a full-time employee, would have to be fully reinstated on the same level as the others before the Respondent could have considered part-time staff again. The Respondent referred to the S.l. 600 of 2017 – Industrial Relations Act 1990 (Code of Practice on Longer Working). The Respondent wishes to have noted that this Code was not introduced until December 2017, some eight months after the Complainant requested to work part-time and received a new contract. The Respondent submits that it had had standard retirement arrangements in every contract. In the Complainant’s case her time of retirement was an express term of her contract of employment. The Respondent cites section 34(4) of the Employment Equality Act 1998, as amended in relation to the setting of a retirement age where it states: "lt shall not constitute discrimination on age grounds ...if it is objectively and reasonably justified by a legitimate aim". In this case the Complainant had indicated 3 years earlier that she found the work and hours too arduous. The Managing Director asked her if she wanted to continue working, and in doing so was cognisant and considerate of her situation. Furthermore, when the Managing Director telephoned the Complainant in August 2020 to explain the position to her she did ask if there was a way to be kept on but after having the situation explained, she appeared to accept the position and the conversation ended cordially. Summary of Testimony of the Managing Director (MD): In January 2017, the Complainant requested a reduction in the number of days worked and a more flexible approach to work with variable hours, as she was finding the work and hours too arduous. The MD agreed to her request and this resulted in a new part-time contract being drawn up for her and signed on 14th April 2017. The Complainant did not mention her age at the time, but the MD thought she was 63 years old. At subsequent reviews, the MD checked with the Complainant that that she was happy to continue with the new flexible arrangement and made it clear to her it was dependent on how busy the company was, and that there may be some weeks when there was no work. On an ongoing basis, the Complainant’s work pattern was discussed and agreed in advance with the General Manager. The Complainant’s final review on 1O December 2019 notes that there is 'significant improvement' in the areas of Enthusiasm, Cooperation and Work Relations; under Dependability, 'is always ready to work when we need her'. In late March 2020 the Studio closed as the Covid-l9 pandemic regulations came into force and all staff, including the Complainant, were placed on the EWSS scheme securing everyone a weekly payment of €350. When the Government announced the end of this scheme and its replacement with TWSS and PUP, the Studio's management discussed how to proceed with turn over having dropped by 70%. Having looked at all the options, it was decided that two full-time staff members would be temporarily laid off and moved to the PUP, three full-time staff would return on a part-time basis under the TWSS and that it would activate the clause in the Complainant’s 's contract which allowed for her retirement when there was insufficient work, given that she had now passed her 66th birthday. The MD spoke to the Complainant on 28th August 2020 to inform her of the decision and she requested a letter confirming it, so that she would be able to sort her pension with social welfare. The MD said to her that it was sad that her retirement could not be celebrated with a leaving lunch as circumstances did not allow it but that when they did, they would celebrate it in a fitting way. It was not the MD’s recollection that the new contract in 2017 was on account of the Complainant reaching the age of 65. Summary of Testimony of the General Manager (GM): The Complainant was employed from April 2O17 as a part-time worker. ln the last 12 months of the year preceding the pandemic, she worked an average of 98 hours per month, depending on the requirements of the business. There was an agreement between the Complainant and the GM that she would come to work more often. Unfortunately, due to the decrease in sales and her physical abilities, she was informed by the GM and the MD, that there may be weeks, when they would not be able to offer her any work. She understood the situation and they were both very flexible on this matter. Due to the Pandemic and drastic drop in sales (70%), the GM could not offer any working hours for the Complainant. Considering the fact, that the Complainant could not receive the Covid Unemployment Benefit, due to the old age pension she received, the GM decided that despite long-term cooperation and personal sympathy to the Complainant, he would not be able to offer her any working hours indefinitely. During a meeting with the company's management, the GM recommended the termination of the Complainant’s employment contract. The GM accepted that in his review of the Complainant’s performance on 8 December 2016 he wrote as follows: “… a lack of enthusiasm for work due to upcoming retirement…”’. He stated that he understood her retirement to be some years down the line in that context, and not to be in April 2017. He stated that he had no knowledge of the provisions of the 2017 contract, nor of any work arrangements agreed between the Complainant and the MD. |
Findings and Conclusions:
The Employment Equality Acts 1998 and 2008 transposed Directive 2000/78, which, via Article 2(2), prohibits discrimination on four grounds (including age). The Directive, however, permits direct discrimination on the age ground, where justified. Addressing the justification of differences of treatment on grounds of age, article 6(1) provides “Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.” Section 6 of the Employment Equality Acts 1998-2015 (The Act) provides that discrimination shall be taken to occur where a person is treated less favourably than another person on one of the discriminatory grounds which ‘exists, existed but no longer exists, may exist in the future, or is imputed to the person concerned.’ Section 6(2) sets out the age discriminatory ground as ‘between any 2 persons … that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”)’. Section 34 of the Act provides for savings and exceptions. The provisions relevant to age discrimination are contained in subsections (4) and (5). Section 34(4) addresses retirement age: “(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.” The original burden of proof is on the Complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably on the discriminatory ground cited. Section 85(A) of the Act states as follows: (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary. (2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant… In Arturs Val Peters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how the above section is to be interpreted.: “Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.” The Complainant in this case fulfilled the initial burden of proof in that it was common case that when a decision was being made to terminate the Complainant’s contract, she was the oldest worker in her cohort of staff and that workers younger in age were retained. Furthermore, in a letter issued by the MD, and exhibited by both parties, the Respondent states that the Complainant “…was retired from working…”. The burden of proof now shifts to the Respondent to show that the termination of the Complainant’s contract was objectively justified on the grounds of age. The Respondent claimed that the Complainant misled the Respondent in the matter of declaration of age – that the Complainant said she was born in 1954, whereas her true year of birth was 1952. The Complainant submitted that she had been honest about her age from the start with the Respondent. I did not find the Respondent’s position to be convincing on this point for a number of reasons. The Respondent gave no documentary or otherwise proof on a purported misrepresentation by the Complainant of her age, other than mere assertion. The General Manager gave evidence in his performance review of the Complaint in December 2016 that she was showing a lack of enthusiasm for work “due to upcoming retirement”. On further questioning he said he was referring to her retirement more than two years down the line, and not to 2 April 2017, which was months away. I did not find this to be a convincing position. Furthermore, the fixed contract offered to the Complainant commenced in April 2017 which for all intents and purposes coincides with the Complainant’s evidence that she was offered a fixed term contract to work part-time hours upon reaching her contractual retirement age of 65 on 2 April 2017. I find that the evidence of the Complainant to be more credible on this point and that her version of the particular fact in dispute, namely that the Respondent had full knowledge of her reaching the age of 65 on 2 April 2017 at the material time, to be more plausible. The fixed term contract offered in 2017 referred to termination of contract upon reaching the age of 66. It logically follows then that the envisaged date of termination would have been 2 April 2018. The verbal arrangement between the Respondent and the Complainant, allowing her to continue to work up to the date of termination of her contract, had all the ingredients of an implied contract of indefinite duration. The Respondent claimed that it believed that the correct termination date, based on the purported misrepresentation of the age of the Complainant, to be 2 April 2020 which would have been the legitimate termination date of the Complainant’s contract. However, the Respondent submitted it made a mistake and allowed the Complaint to continue working until August 2020. The General Manager recommended the termination of the Complainant’s employment contract. He chose to offer part-time work to younger full time-staff even though the Complainant was already on a flexitime contract. The inescapable conclusion to be reached is that the Complainant was chosen to have her contract terminated because of her age. This was not disputed by the Respondent when it submitted that the decision to dismiss the Complainant was based on the belief that she had worked beyond the age of 66, and that it had a contractual right to do. However, the contract relied upon had run its course on 2 April 2018 and the decision to dismiss on age grounds was instead grounded on a misconceived contractual authority. Certain arguments were relied on by the Respondent by way of objective justification, for example, relating to the fitness and dignity of the Complainant. On the face of it, such views are legitimate. However, I note that in the General Manager’s final review of the Complainant on 10 December 2019 he states: “There is significant improvement in the areas of Enthusiasm, Cooperation and Work Relations”; and under ‘Dependability’, …”is always ready to work when we need her.” This review negates any contention that the Complainant was anyway unfit to carry out her duties. In terminating the contract, it is clear to me that the Respondent looked only at the Complainant’s age. The Respondent did not discharge the burden of proving that the forced retirement of the Complainant was an objectively justified legitimate aim nor were the means it used in achieving this aim appropriate. The manner of dismissal was inappropriate and aggravated the discriminatory treatment. S.I. 600/2017 – Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017, which the Respondent opened, provides guidance on the retirement process as follows: It is good practice for an employer to notify an employee of the intention to retire him/her on the contractual retirement date within 6 — 12 months of that date. This allows for reasonable time for planning, arranging advice regarding people succession, etc. While the initial notification should be in writing, it should be followed up with a face-to-face meeting which should focus on addressing the following: • Clear understanding of the retirement date and any possible issues arising; • Exploration of measures (subject to agreement) which would support the pathway to retirement, for example flexible working, looking at alternative roles up to the date of retirement; • Transitional arrangements in regard to the particular post; and • Assistance around guidance and information.
The plain fact of the matter is that the Complainant was told she was to retire immediately by phone call from the managing director in August 2020. None of the guidelines of S.I. 600/2017 as set out above, were followed. For the reasons set out above in the body of the Decision, I find that the Complainant was subject to unlawful and less favourable treatment because of her age. In awarding redress, I am considering the distress and indignity of the Complainant in consequence thereof, including the manner of her dismissal. However, there were certain mitigating factors in this case which I believe place the effects of the discrimination at the lower end of the scale. The Complainant’s evidence suggested that she did expect to retire upon reaching the contractual age in 2017 and gave no account of communicating an intention to continue working at that time. Nor did I detect an intention to breach the Act to be at the root of the Respondent’s decision to dismiss, but instead there laid a mistaken belief that it had a contractual right to do so. Furthermore, there was convincing evidence that the Covid 19 pandemic had seriously affected the Respondent’s business and that only minimal part-time hours would have been available to the Complainant in any event. Having considered the foregoing, I direct the Respondent to pay the Complainant the compensatory sum of €5000 for the effects of discrimination. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
For the reasons set out above in the body of the Decision, I find that the Complainant was discriminatorily dismissed because of her age and I award the Complainant €5,000. The award is redress for the infringement of the complainant’s statutory rights and therefore not subject to the PAYE/PRSI/USC code. |
Dated: 08-09-21
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
Key Words:
Employment Equality Act 1998, Age Grounds, Discriminatory Dismissal. |