Complainant

Respondent

Parties

Seamus  Casey

 Irish Heart Foundation CGL (amended on consent)

Complainant

Respondent

Anonymised Parties

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Representatives

Ormonde Solicitors

 Siobhan Browne and Associates Limited

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-00062724-001

11/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00062724-002

11/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00062724-003

11/04/2024

The Complainant gave evidence on Affirmation. It was his complaints that he was discriminated against on the grounds of his age on the grounds of equal pay, his conditions of employment and ultimately forced to retire from his position as a Stroke Group Co-Ordinator on 31 December 2023.

The Respondent was represented by Siobhan Browne, HR Consultant, who during the course of the hearing did give evidence on Affirmation as did Chris Macey, Director of Advocacy, Tracy Egan, Manager and Helen Redmond, Director of Corporate Finance. The Respondent is a charity dedicated to preventing death and disability from heart disease and stroke and offering support and care for those living with these life-changing conditions.

The correct name of the Respondent was amended at the outset out the hearing on consent.

Submissions were exchanged and relied upon by both parties.

It was the Complainant’s evidence that he was employed by the Respondent as a Stroke Group Co-Ordinator from 23 March 2015 until his dismissal on 31 December 2023, the most recent date of discrimination. At the time of dismissal, he was 68 years old and earning €16.48 p/hr working a 20-hour week.

He initially worked a 37 hour week, but in October 2022, the Respondent reduced his hours to 20 per week. This reduction was presented as temporary, not to exceed 12 months. The Complainant continued to work in excess of these hours and expressed disappointment, though he did not lodge a formal grievance.

It was the Complainant’s evidence that upon reaching the age of 65, the Respondent encouraged him to remain in his role and extended his employment through a series of fixed-term contracts, with the understanding that he would continue until age 70. The Complainant referred at the time to the newly announced Flexible State Pension Scheme which would have allowed him to receive €315 per week if he deferred receipt of his State pension until he received 70 years of age.

 Despite this, he was informed in December 2022 via Microsoft Teams that “it’s company policy that you have to be let go,” which came as a shock given his recent positive performance review and prior discussions about continuing employment.

During his final year, the Complainant covered multiple regions including Cavan, Navan, Monaghan, Dundalk, and Drogheda. In October 2023, the Respondent hired a younger employee who assumed responsibility for some of these areas.

It was the Complainant’s evidence that he was paid €32,500 annually when working full-time, while younger colleagues performing similar duties were paid more:

·       Ms. M. G.: €39,500

·       Ms. N. B.: €38,000

The Respondent claimed the pay disparity was due to qualifications. However, the Complainant held relevant certifications including Health and Safety Management, First Aid, CPR, and Dignity and Respect at Work training.

Despite denying unequal pay, the Respondent increased the Complainant’s salary to €34,000 and issued a back payment of €4,453.60. In correspondence dated 19 December 2023, the Respondent dismissed his concerns, citing their flexibility in extending his employment beyond the contractual retirement age.

It was the Complainant’s evidence that he had a strong passion for his work and genuine care for the individuals attending his stroke support groups. He believed his dismissal and the pay disparity were discriminatory on the grounds of age.

It was the Respondent’s evidence that the Complainant transferred to the Respondent under TUPE in January 2020. It was submitted the Complainant’s new contract was more favourable, including higher pay €15 p /hr, pension, life cover, and other benefits until age 65.

Upon discovering his date of birth, the Respondent noted the Complainant would reach retirement age in March 2020. To accommodate his wish to continue working, he was offered a one-year fixed-term contract at €16 p/hr for 37 hours per week, which he accepted.

Due to COVID-19, the Complainant requested to stay on, and a second fixed-term contract was agreed for March 2021 to February 2022, with a pay increase to €17 p/hr.

In 2022, a strategic review introduced new roles requiring higher qualifications and set salary ranges for new hires. The Complainant was informed that his final working day would be 31 December 2023. Meetings in October 2023 confirmed this, and retirement planning support was offered.

On 18 December 2023, the Complainant raised pay concerns. The Respondent stated there was no underpayment and explained that new hires had expanded roles and qualifications. As a goodwill gesture,  a back payment was made.

The Respondent maintained all extensions were voluntary, mutually agreed, and based on operational needs and the Complainant’s request to work beyond retirement age.

It was the Respondent’s evidence that in early 2022, while a new service model requiring different skills was being developed, the Complainant requested to continue working. A further fixed-term contract was agreed to the end of 2022 on the same terms, as his role did not include new duties.

Throughout 2022, the Respondent communicated the new strategy and its impact on roles. In October 2022, the Complainant again sought an extension. The Respondent offered two options: Six months at 37 hours per week, or 12 months at 20 hours per week.

The Complainant chose the latter and was clearly informed this would be the final contract, ending December 2023. The Respondent repeatedly offered retirement planning support, which the Complainant declined.

In November 2022, the Complainant proposed working until age 70 for financial reasons. The Respondent refused, citing prior extensions beyond retirement age and the new structure requiring different qualifications. The Respondent confirmed the final extension and documented this in writing to ensure transparency.

It was the Respondent’s evidence that on 18 December 2023, the Complainant emailed HR claiming unequal pay among Stroke Coordinators. HR replied on 19 December, confirming no underpayment had occurred.

The Respondent explained that since late 2022, new roles required higher qualifications and carried a broader scope, which justified a higher salary range. However, upon cross examination of Ms Redmond she stated she did not know what the exact details of the role or the responsibilities that allowed for the Complainant and the named comparators to be paid differently. It was her evidence that there was no objectively justifiable reason why the Complainant was paid €32,000 per annum when new entrants were being paid €34,000.

As regards Ms. M. G. it was submitted she held a different role and therefore was on a higher salary of €39,000. Upon cross examination it was put to her that Ms M.G. reigned from the additional duties but retained the same salary. It was Ms Redmond’s evidence this was objectively justifiable as she was hired for a different role and stayed on that salary when she reverted to a full time Co-Ordinator role but accepted, she was not placed on a reduced salary in line with the Complainant.

As a goodwill gesture, the Respondent made an ex-gratia payment based on the full-time equivalent for new hires from January 2022. It was submitted the payment was intended as a positive gesture at retirement.

Preliminary Objection

The Respondent raised a preliminary objection that the Complainant never objected to the retirement clause in his contract until late 2022 nor did he indicate he wanted to continue working until he was 70 years until October 2022. It was submitted this was 2.5 years after he turned 65 years of age. The Respondent relied upon Mallon v. The Minister for Justice, Ireland and the Attorney General [2024] IESC 20 and Carl Davidson v Amari Ireland Limited, ADJ-00037379.

In response, the Complainant refuted the objection, stating that he was given multiple fixed-term contracts. Furthermore, his request to renew his contract in October 2022 was not the first time he notified the Respondent of his wish to continue working until he was 70 years of age.

CA-00062724-003 – Dismissal

Council Directive 2000/78/EC of 27 November 2000, which establishes a general framework for equal treatment in employment and occupation, has been transposed into Irish law through the Employment Equality Acts 1998–2015.

The Employment Equality Acts 1998- 2015 (the “Acts”) prohibit discrimination on the ground of age.

Section 6(1) of the Act provides as follows:

“6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred 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 this Act) are—

….

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

Section 6(3)(c) provides:

“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 if—

(i.) it is objectively and reasonably justified by a legitimate aim, and

(ii.) the means of achieving that aim are appropriate and necessary.”

Section 34(4) of the Act transposes article 6 of the Directive and provides for exceptions relating to, inter alia, the age ground:

“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 —

(i) it is objectively and reasonably justified by a legitimate aim, and

(ii) the means of achieving that aim are appropriate and necessary.”

Section 37 of the Act transposes article 4 of the Directive and provides for exclusion of discrimination on particular grounds in certain employments:

“(2) For the purposes of this Part a difference of treatment which is based on a characteristic related to any of the discriminatory grounds (except the gender ground) shall not constitute discrimination where, by reason of the particular occupational activities concerned or of the context in which they are carried out—

(a) the characteristic constitutes a genuine and determining occupational requirement, and

(b) the objective is legitimate and the requirement proportionate.”

The Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017 (S.I. No. 600/2017) outlines best practice in industrial relations for managing engagement between employers and employees approaching a mandatory retirement age. It also lists a range of legitimate aims that may justify the setting of a mandatory retirement age.

The current legal position on retirement age was set out in Seamus Mallon v. The Minister for Justice, Ireland, and the Attorney General [2024] IESC 20 where the Supreme Court considered the compatibility of a mandatory retirement age with Council Directive 2000/78/EC. The Court held that a mandatory retirement age does not constitute unlawful age discrimination where it pursues a legitimate aim and the means of achieving that aim is appropriate and proportionate, in accordance with Article 6(1) of the Directive and relevant CJEU jurisprudence.

The Supreme Court held “measure providing for mandatory retirement (whether a legislative measure or a provision of a collective agreement) may be justified even where it does not identify the aim being pursued: the ‘general context of the measure concerned’ may be relied on to identify the underlying aim of the measure for the purpose of judicial review of its legitimacy and whether the means put in place to achieve that aim were appropriate and necessary”.

The Supreme Court noted that legitimate aims can include:

·       Promoting the employment of younger people and facilitating their entry to the labour market;

·       Promoting the access of young people to the professions;

·       Establishing an age structure that balances younger and older workers;

·       Sharing employment between the generations;

·       Improving personnel management by enabling efficient planning for departure and recruitment of staff;

·       Preventing possible disputes concerning employees’ fitness to work beyond a certain age;

·       Avoiding employers having to dismiss employees on the ground that they are no longer capable of working which may be humiliating for the employee; and

·       Standardising retirement ages for professionals in the public service.

Departing from the High Court judgment in the Supreme Court found that the avoidance of an individual capacity assessment has been recognised as a legitimate aim in favour of justifying a general retirement age.

Considering the financial hardship argument put forward by the Complainant. Fuchs & Kohler Case C 160/10 in that judgment the CJEU held at para 66 and 67:-

“The Court has also held, in regard to a measure requiring the automatic termination of employment contracts at that age, in a sector in which, according to the national court, that measure was liable to cause significant financial hardship to the worker concerned, that that measure did not go beyond what was necessary to achieve the desired aims, in particular the encouragement of recruitment. The Court took into account the fact that the worker was eligible for payment of a pension while at the same time remaining in the labour market and enjoying protection from discrimination on grounds of age (see, to that effect, Rosenbladt, paragraphs 73 to 76).

67      In the present cases in the main proceedings, it is apparent from the documents before the Court that prosecutors retire, as a rule, at the age of 65 on a full pension equivalent to approximately 72% of their final salary. Furthermore, Paragraph 50(3) of the HBG provides for the possibility of prosecutors working for a further three years until the age of 68 if they so request and if it is in the interests of the service. Finally, national law does not prevent prosecutors from exercising another professional activity, such as that of legal adviser, with no age limit.”

At para. 10 of the Mallon judgment, Mr Justice Collins held:-

“A significant factor in assessing whether a mandatory retirement rule is “appropriate and necessary” will be the financial impact on the persons involved and whether it will result in undue hardship to them. In that context, whether they will, on retirement, be entitled to an adequate pension is an important consideration.”

Burden of Proof

Section 85A(1) of the Acts provides:

“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”.

The evidence is clear from both sides: the Complainant’s employment ended because of his age. He had sought an extension of his contract of employment, which was denied.

Consequently, the burden of proof shifted to the Respondent to rebut the presumption of discrimination.

The Respondent relied on the decision in Carl Davidson v Amari Ireland Limited (ADJ-00037279), where the Complainant, upon reaching the age of 65, was offered a one-year fixed-term contract. However, the Complainant’s representatives, who were also involved in the Davidson case, distinguished this matter on the basis that Mr Davidson was only offered one fixed-term contract, whereas the Complainant in this instance was offered four separate one-year fixed-term contracts from March 2020 to 31 December 2023.

It was further noted that Mr Davidson did not seek a further contract until after his fixed-term contract expired.

The Complainant’s contract history can be summarised as follows:

The Complainant’s original contract of employment did not contain any retirement clause, nor did any of the fixed-term contracts, except for the 2023 contract, by which time the Complainant had already surpassed 65 years of age. While there was no direct evidence from the Respondent regarding the reasons for the first fixed-term contract, it was not disputed by the Complainant that this occurred during the Covid-19 pandemic, when he adapted to hosting online group meetings.

From the subsequent two contracts, it appears they were renewed annually. At all times, his service was expressly acknowledged, albeit with errors noting the date the contract was signed rather than the commencement date.

In the absence of any evidence to the contrary, the Complainant’s evidence that he expressed a desire to continue working until he was 70 years of age is accepted. This is further supported by his email of 9 November 2022, where he specifically referred to the positive financial impact that working until age 70 would have on his State Pension.

Several emails from October, November, and December 2022 were presented relating to the Complainant’s further fixed-term contract, which he was offered by letter dated 15 December 2022, in advance of the end date of his 2021 fixed-term contract.

By email dated 10 November 2022, the Complainant expressed his disappointment with the Respondent’s decision that this would be his final offer, 20 hours per week until 31 December 2023, and that no additional contract would be offered thereafter. Despite this, he signed the contract, which clearly provided for a fixed period of employment until 31 December 2023.

The Complainant wrote to the Respondent on 18 December 2023, shortly before the contract end date, raising his dissatisfaction with the unequal pay he was receiving. The email did not contain any reference or application to continue his employment beyond 31 December 2023. However, Ms Browne’s reply on 19 December 2023 went into detail as to why he was not being offered any additional contracts with the Respondent.

Having regard to all the circumstances, the Complainant was at all times aware by the end of 2022 that he was being offered a final fixed-term contract and signed it. While he did raise his disappointment and desire to continue working until, he reached 70 years of age in 2022, the contract and correspondence were clear that this would be his final contract.

While his complaint of discrimination might have been viewed differently had it been lodged in late 2022 or early 2023, based on the facts before me, I find that the Complainant was not dismissed on the grounds of discrimination, as he did not apply for an extension of his contract in 2023.

CA-00062724-002

Section 7 of the Acts defines “Like work”

“7.—(1) Subject to subsection (2), for the purposes of this Act, in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if—

(a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work,

(b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or

(c) the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.”

Section 19 of the Acts sets out the requirement for a valid comparator:  

19.-(1) It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer.

(2) In this section “relevant time” in relation to a particular time is any time (including a time before the commencement of this section) during the 3 years which precede, or the 3 years which follow, the particular time.”

While much of the case law on age and unequal pay relates to seniority or length of service, which may be deemed objectively justifiable, this complaint raises the opposite issue. In this instance, the Complainant, who held significant experience in a role he had worked in since March 2015, claims he was paid less than a new recruit.

It was noted that no evidence was presented on behalf of the Respondent to support its objective justification for paying the two identified comparators a higher wage. While there was reference to the role requiring a third-level qualification and a broadened job description to justify a higher salary, no documentary evidence was presented to distinguish this role from the Complainant’s role.

A job advertisement for a Patient Support Services Co-Ordinator from around September 2022 was presented. It was the Complainant’s evidence, when asked about this being the standard job description since 2022, that he was unaware of it because he “had the job” and was “not issued with a job description.” It is noted that job descriptions for Stroke Group Co-Ordinator existed in 2020 and 2022, but none was presented for 2023. The Complainant further stated that upon reviewing the list of duties, he was carrying out all of them.

It is accepted that the Complainant held the job title “Stroke Group Co-Ordinator,” while the 2022 job description refers to “Patient Support Services Co-Ordinator.” However, correspondence shows that the Stroke Group Co-Ordinator role continued to exist after September 2022. This is evident from Ms Browne’s email of 19 December 2023 to the Complainant, where she acknowledged his concern about equal pay and stated:

“You are correct in saying not all stroke co-ordinators are paid the same rate due to the range of factors I have detailed above in this note; your rate mirrors that of some of the team.”

This is a clear acknowledgment that the Complainant was paid differently from other team members.

Consequently, I find that he has discharged the burden of proof that he carried out like work.

Ms Browne continued in her email, citing “recruitment pressures” and “level of academic attainment,” noting that “many cases new entrants hold relevant Masters qualifications or other postgraduate qualifications,” as well as “relevant related organisational experience, strong IT and project skills.” She also referred to the move away from the “historical hourly paid, part-time model of service delivery.”

The justification of full-time versus part-time hourly paid employees is particularly noteworthy, given that the Complainant sought to continue working 37 hours per week until he was given an ultimatum in November 2022: either accept a 20-hour contract for one year, a 37-hour contract for six months, or no further contract would be offered. This is evident from emails between Ms Browne and Ms Gaynor dated 7 November 2022 with the subject line: “Seamus Casey – conversation re reduction in hours from 37 to 20.”

Furthermore, no statistical data was provided in evidence, despite references to benchmarking and pay reviews by the Respondent, to justify the different rates of pay for Stroke Group Co-Ordinators. No evidence was presented from either of the named comparators or any other Stroke Group Co-Ordinators regarding their duties, academic qualifications, organisational experience, IT or project skills, as referenced by Ms Browne and Ms Redmond. Neither was evidence presented of any Co-Ordinators paid the same hourly rate as the Complainant.

Finally, it is noted that the Respondent offered an “adjustment” to the Complainant’s final salary in the sum of €4,453.60, applied in the week ending 29 December 2023. It was noted as “back pay” on his payslip. In Ms Browne’s email of 19 December 2022, she stated that this “back pay” increased the Complainant’s wages to a “full-time equivalent of €34,000 effective January 2022.” While this may have been a goodwill gesture, it was an open offer, effectively admitting that his colleagues earned a higher hourly wage of €17.67 compared to the Complainant’s €16.48 per hour in 2022.

Consequently, I find there is no evidence of objective justification on the part of the Respondent as to why the Complainant was treated less favourable in being paid a lower hourly rate for the like work he carried out with the two valid named comparators.

For the reasons outlined above, I find the Complainant was discriminated against by the Respondent in his complaint under the Equal Pay provisions of the Employment Equality Acts 1998–2015

.CA-00062724-001

After carefully considering the evidence, I find the Complainant was not discriminated against by the Respondent in his conditions of employment on the grounds of his age where no evidence was adduced by the Complainant. The Complainant presented evidence of his unequal pay complaint which falls under the Equal Pay Directive. He also lodged a separate and distinct complaint in his Complaint Form and succeeded.  

CA-00062724-003

I find the Complainant was not dismissed by the Respondent on the grounds of age.

CA-00062724-002

I find the Complainant was discriminated against by the Respondent in his complaint under the Equal Pay provisions of the Employment Equality Acts 1998-2015.

Redress is provided for in Section 82 of the Acts:

“(1) Subject to this section, the types of redress for which a decision of the Director General of the Workplace Relations Commission under section 79 may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:

(a) an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 3 years before the date of the referral under section 77(1) which led to the decision;

(b) an order for equal remuneration from the date referred to in paragraph (a);

(c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77;

(d) an order for equal treatment in whatever respect is relevant to the case;

(e) an order that a person or persons specified in the order take a course of action which is so specified;

(f) an order for re-instatement or re-engagement, with or without an order for compensation.”

Article 17 of the Framework Directive requires awards for discrimination must be “effective, proportionate and dissuasive”.

Having regard to all the circumstances including the Respondent’s payment of “backpay” of €4,453.60, albeit at the end of his employment which was made to the Complainant in December 2023, I order the Respondent to pay the Complainant compensation in the form of arrears of renumeration in the sum of €1,363.12 in accordance with the three year limit set out in Section 82 (1) (a).

I further order the Respondent to pay €15,000 in compensation for the effects of the discrimination on the Complainant in accordance with Section 82 (1) (c).

CA-00062724-001

I find the Complainant was not discriminated against by the Respondent in his conditions of employment on the grounds of his age.

Discrimination on the grounds of Age -  Conditions of Employment

Equal Pay

Dismissal