Complainant

Respondent

Parties

Colm  Harte

South Dublin County Council

Representatives

Keith Irvine, Local Government Management Agency (LGMA)

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998

CA-00067881-001

04/12/2024

The Complainant has been in continuous employment with the Respondent from 23 July 1998.  Most recently the Complainant was employed as a Water & Drainage Inspector since 2018.  In accordance with Section 86 of the Employment Equality Act, 1998 he brought a complaint contending that an employment agreement contained a provision which was discriminatory.  

The Respondent is a local authority and the Respondent disputed the complaint.

In his complaint form, the Complainant stated that following the water services transiting to Uisce Eireann a voluntary redundancy scheme was made available for ‘eligible’ workers. He stated that he made contact with the appropriate person with the below queries which related to the criteria for eligibility:

1. Minimum 50% work on water Services

2. Under Preserved Pension Age on 30th June 2024- you will be over minimum retirement age (age 60) on 30/06/2024.

3. 2 calendar years reckonable service.

The Complainant outlined that he had no concerns in relation to No.’s 1 and 2 above as he believed that they were in line with the Redundancy Payments Acts 1967–2014. However, he stated that the Preserved Pension age at No 3 was not.

The Complainant noted that in the past, an employee had to be between 16 and 66 years of age to qualify for statutory redundancy pay and that the upper age limit of 66 was removed by the Protection of Employment Act 2007. He proposed that the upper age limit was removed as it was discriminatory.

The Complainant acknowledged that it was understood that there was no automatic right to Voluntary Redundancy but that there must be a fair and transparent selection process when considering eligibility.  He stated that the pensionable age was removed from redundancy payment criteria by law as it was age-based discrimination, it did not seem fair that it was added as additional criteria when determining eligibility under the voluntary redundancy scheme.  The Complainant submitted that an employer should use a fair and objective way of selecting people to make redundant and that this should be based on some objective (unbiased and factual) reasons why you were selected, and other employees were not selected. He stated that using the Pensionable Age seemed to contradict this statement.

The Complainant noted that redundancy is considered unfair if your employer has discriminated in selecting you for redundancy. He stated that he had requested the following from his employer but had received no response or communication:

(a)    A response to the reason the Preserved Pension Age was added as criteria and explain how this does not contradict laws based on age discrimination in Employment Equality.

(b)   That his employer reconsiders the criteria used and allow for employees of Preserved Pension Age to qualify for redundancy selection.

The Complainant stated that he felt strongly that if the upper age limit of 66 was removed by the Protection of Employment Act 2007 due to it being discriminatory, then it is also discriminatory for it to be used when disqualifying employees from redundancy.

The Complainant sought adjudication on the matter as he had exhausted all attempts of to resolve the matter directly with the Respondent.

Evidence given at hearing on 14 March 2025:

Time Limit

At hearing the Complainant confirmed that he believed his complaint was within time as the timeframe should be calculated based on the date on which the Respondent replied to his queries regarding the scheme.  He stated that it was only when he received that correspondence that he understood the basis for him being refused a redundancy package.  He stated that the relevant response was dated 30 September 2024, that he submitted his complaint on 4 December 2024 and therefore the complaint was within time.

 Prima Facie Case

At hearing the Complainant confirmed that he considered that the provisions of the Redundancy Scheme constituted indirect discrimination and he stated that a comparator was anyone who falls within the pension age.

He further clarified that he was not pursuing a case of discrimination in relation to the decision not to offer him redundancy but that he was pursuing a case that the provisions within the scheme were discriminatory. He also clarified that the Framework Agreement was the collective agreement to which he referred in his complaint.  He stated that he believed that the redundancy scheme did not fall within the exception outlined by the Respondent in it’s submission.

Preliminary Issues

Time Limit

The Respondent noted that the Complainant was written to on 23 February 2024 informing him that he was ineligible for the voluntary redundancy scheme and confirming that this was due to him not being under the preserved pension age.  The Respondent further noted that the Complainant submitted his complaint to the WRC on 4 December 2024.

The Respondent drew attention to Section 77(5) of the Workplace Relations Act which provides that an Adjudication Officer “shall not entertain a complaint referred to him or her after the expiration of the period of 6 months beginning on the date of contravention to which the complaint relates.”  In light of the above the Respondent submitted that the complaint related to the Complainant being informed that he was not eligible for voluntary redundancy and noted that the complaint was lodged with the WRC over 7 months later.

Based on the above the Respondent submitted that the Adjudication Officer should not entertain the complaint as it was out of time.

Prima Facie Case

The Respondent noted that Section 8 of the Employment Equlaity Act provides that:

“In relation to –

(a)   Access to employment,

(b)   Conditions of employment

(c)    Training or experience for or in relation to employment,

(d)   Promotion or re-grading, or

(e)    Classification of posts

an employer shall not discriminate against an employee or prospective employee…”

The Respondent also noted the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations, 2001 (S.I. 337 of 2001) which provides that where, in any proceedings, facts are established by, or on behalf of, a person from which it may be presumed that there has been direct or indirect discrimination in relation to him or her, it shall be for the other party concerned to prove the contrary.  The Respondent submitted that the first requirement, therefore, is for the Complainant to establish facts from which it may be presumed that the principle of equal treatment has not been applied to him or her. 

The Respondent submitted that this burden of proof is now also applicable under Irish Law to all grounds of discrimination under section 85 A of the Employment Equality Act 1998 (as amended).  The Respondent further submitted that if an employee is alleging direct or indirect discrimination on the grounds of for example gender, marital status, family status or age then the burden of proof remains the same as if he or she were making a claim specifically for gender discrimination.

In light of the above the Respondent submitted that it was therefore, for the Complainant to establish a prima facie case of discrimination and that it was only when that prima facie case had been established that the burden of proof shifts to the Respondent to submit a defence. 

The Respondent noted that the definition of discrimination in terms of the treatment of individuals necessarily requires a comparison between two persons.  In terms of differences of treatment between two persons, the person with whom an employee may compare him or herself (the comparator under the 1998 Act is someone who:

(i)                  is;

(ii)                has been; or

(iii)              would be treated differently

The Respondent submitted that it is for the Complainant in the instant case to prove, on the balance of probabilities, the primary facts on which he relied in seeking to raise the presumption of unlawful discrimination and that the “primary facts” criteria to establish prima facie discrimination were defined by the Equality Tribunal in the case of Minaguchi v Winesport Lakeshore Restaurant, DEC-E2002-202.  In particular the Respondent noted that the Tribunal stated:

“It appears to me that the three key elements which need to be established by a complainant in order to show that a prima facie case exists are:

1.      that he/she is covered by the relevant discriminatory ground(s);

2.      that he/she has been subject to specific treatment; and

3.      that this treatment is less favourable than the way someone who is not covered by the discriminatory ground is, has been or would be treated.”

The Respondent also referred to the case of Melbury v Valpeters EDA/0917 where it was stated;

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit.  This requires that the Complainant must 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 no exceptions to that evidential rule”.

The Respondent submitted that the Complainant is required to demonstrate that “he/she has been subject to specific treatment” and the Respondent contended that the Complainant had not established what, if any, specific treatment he had been subject to.

The Respondent submitted that the next requirement is for the Complainant to show that “this treatment is less favourable that the way someone who is not covered by the discriminatory ground is, has been or would be treated.”  The Respondent submitted that it was not aware of how or when the Complainant was discriminated against and that no comparator had been identified.  The respondent submitted that the Complainant must identify a comparator with the Respondent’s employ who was treated differently and where they did not hold the equality status of the Complainant.

Based on all of the above, the Respondent contended that the Complainant had not established a prima facie case of discrimination during the 6-month period prior to the complaint being submitted to the WRC, nor had the Complainant provided any details where the Complainant had been discriminated against with regard to the identified grounds, compared to that of a relevant comparator.  On that basis the Respondent submitted that the burden of proof could not shift to the Respondent and the case should be dismissed.

The Substantive Case

The Respondent submitted the following arguments in relation to the complaint:

·       That the Complainant was assessed for the Voluntary Redundancy Scheme and was determined as not being eligible due to reaching the preserved pension age.

·       That the criteria for the Voluntary Redundancy Scheme is determined by the Department of Public Expenditure NDP Delivery and Reform who are responsible for all public sector voluntary severance schemes, and that the criteria set out by them are that only those under the preserved pension age are eligible to apply.

·       That it was important to note that local authority water service employees had, under the terms of the WRC Framework Agreement, the choice of either joining Uisce Eireann, availing of voluntary severance or being assigned to another role in the local authority whilst maintaining their existing earnings.

·       That all of the above options were open to the Complainant.

The respondent submitted that the Voluntary Severance Scheme comes within the scope of Section 34(7)9b) of the Employment Equality Act 1998 which states that schemes based on seniority or service are excluded from the provisions of the Act relating to age discrimination.

Hearing on 14 March 2025:

Time Limits

At hearing the Respondent confirmed that the Complainant was notified of the decision regarding his application for voluntary redundancy in February 2024.  The Respondent stated that the Complainant had not appealed the decision contained in that correspondence but had merely raised a query.  In that context the Respondent submitted that the complaint was out of time.

The Substantive Case

The Respondent outlined its position in accordance with the submission detailed above.  The Respondent confirmed that the Framework Agreement only referred to the provision of a redundancy scheme and that the redundancy scheme was authored by the Department of Expenditure NDP Delivery & Reform.

The Respondent noted that no case law had been submitted by the Complainant to support his position and that it did not understand the basis for the complaint.

In all the circumstances the Respondent submitted that the complaint should be dismissed.

Witness Evidence – Ms. Wall

Ms. Wall confirmed that she was employed as a Senior Executive Office in the HR function.  She confirmed that redundancies were considered in early February 2024 in accordance with the relevant circular.  She advised that the based on the circular the following criteria was applied to employees in terms of their eligibility:

(i)                  That 50% of the employee’s work had to be within the water services

(ii)                That the employee had to be under the preserved pension age as at June 2024

(iii)              That the employee had to have a minimum of 2 years’ service

Ms. Wall confirmed that the Respondent wrote to applicants to advise them of decisions relating to their applications for redundancy and that in that context correspondence had issued to the Complainant on 3 February 2024.  She confirmed that in that correspondence the Respondent outlined that the Complainant did not meet the eligibility criteria and also outlined the remaining options available to him

She confirmed that there was no appeal process as the eligibility criteria was clearly defined by the circular.  She further confirmed that a total of 12 other staff were also ineligible due to preserved pension age.

Ms. Wall advised that a query was received from the Complainant in September 2024 which was forwarded to the Department for consideration and she advised that the Department provided its’ response in October 2024, confirming that there was no change to the position as originally advised to the Complainant.

Ms. Wall confirmed that the initial closing date for application for redundancy was extended to 30 September 2024 and she acknowledged that the Complainant had submitted his query within that timeframe.

I have considered carefully the submissions and supporting documentation provided by the parties, together with evidence and information provided by the parties at hearing.

Time Limit

Section 41 of the Workplace Relations Act 2015 which provides that: (6) Subject to subsection (8), “an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates……. (8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.” 

I note the Respondent position that the Complainant was advised of the outcome of his application for redundancy on 3 February 2024 and that therefore the complaint is outside of the cognisable period.

I further note the Complainant position that he queried matters relating to the redundancy scheme in September 2024 and received a response to that query on 30 September 2024.  He therefore, was of the view that his complaint was within time.

I draw the attention of the parties to the complaint that was submitted by the Complainant, which was that the Framework Agreement governing the transfer of staff from local authorities to Uisce Eireann contained a provision which was discriminatory.  It is noteworthy that the Complainant did not make any complaint of discrimination on any of the 10 grounds prohibited under the Act.  It is clear from the complaint submitted that the provision the Complainant contends was discriminatory was the provision relating to the eligibility criteria for the redundancy scheme.

The Respondent gave evidence that access to the scheme was extended to 30 September 2024 and I consider this to be the relevant date for the purpose of determining timelines.  As the Complainant lodged his complaint on 4 December 2024, I find his complaint to be in time.

Prima Facie Case

As outlined under Time Limits above, the Complainant’s complaint contends that the Framework Agreement contained a discriminatory provision.  He did not make a complaint of discrimination on any of the 10 grounds prohibited by the Act.  In those circumstances the arguments relating to a prima facie case are not relevant.

The Substantive Case

Section 9-(2) of the Employment Equality Act 1998 states that “If an agreement or order to which this section applies contains a provision which does not fall within subsection (1) but which gives rise to discrimination in relation to any of the matters in paragraphs (a) to € of section 8 (1) then, subject to subsection (4), that provision shall be null and void.”

Section 9(3) states that “This section applies to the following agreements and orders, whether made before or after the coming into operation of this section:

(a)   Collective agreements;

(b)   Employment regulation orders, within the meaning of Part IV of the Industrial Relations Act, 1946; and

(c)    Registered employment agreements, within the meaning of Part III of that act.”

The above provisions clearly set out that in the case of collective agreements a provision which in itself is discriminatory “shall be null and void” and Section 86 provides that where “a person is affected by a collective agreement claims that a provision of that agreement is null and void….that person may refer the question of that agreement to the Director”.

On that basis I consider that this complaint is properly presented to the Director General of the Workplace Relations Commission for adjudication and that I have authority to hear this matter.

The Complainant contends that a provision of the Framework Agreement, namely the eligibility criteria for the redundancy scheme, is discriminatory.

I reviewed the Framework Agreement and noted that it’ purpose was set out as a framework for the future delivery of water services which “was developed through an engagement process facilitated by the WRC between the Department of Housing, Local Government & Heritage, Irish Water, the CCMA, the LGMA and union representatives.”  It is clear that the Framework Agreement is therefore a “collective agreement” within the meaning of the Act. I note from post hearing clarifications provided by the Respondent that the WRC issued the Agreement to the parties on 23 June 2022.

I further noted that section 5 of that agreement confirms that “a voluntary redundancy (VR) scheme will be available to local authority water service staff who are otherwise eligible to transfer to Irish Water yet do not see such transfer or reassignment to other local authority services areas, as realistic options.”

The agreement provides details of the redundancy package available and states that “The VR scheme will apply to those who are under preserved pension age at 30 June 2024, and who have accrued entitlement to preserved superannuation benefits under a local government scheme (2 calendar years’ reckonable service) at that date”.

The above provision is the provision complained of by the Complainant and it is a fact that it did form part of the collective agreement finalised in June 2022.

I reviewed the Circular appended to its submission by the Respondent i.e. Circular LG(P) 01/2024.  I noted that this circular was issued by the Department of Housing, Local Government & Heritage on 1 February 2024 and although the Respondent put forward the argument that the terms of the redundancy scheme were set by the Department through the circular, it would appear that this was not the case and that, in fact, the circular gave effect to the provisions of the Framework Agreement.

I noted that the Respondent, in it’s post hearing submission, advised that it had been accepted by the parties to the Framework Agreement that the terms of the redundancy scheme would be in accordance with existing public sector VR schemes as operated by the Department of Public Expenditure & Reform.

Nonetheless, based on the content of the Framework Agreement it is a fact that the terms of the redundancy scheme, as well as the eligibility criteria were contained in the agreement, and as such, the Complainant is entitled to pursue his complaint that this is a provision of the agreement and his contention that this provision is discriminatory.

Section 34 (3) of the Employment Equality Act states that “In occupational benefits scheme it shall not constitute discrimination on the age ground for an employer –

(a)   To fix ages for admission to such a scheme or entitlement to benefits under it,

(b)   To fix different such ages for all employees or a category of such employees,

(c)    To use, in the context of such a scheme, age criteria in actuarial calculations, or

(d)   To provide different rates of severance payment for different employees or groups or categories of employees, being rates based on or taking into account the period between the age of an employee on leaving the employment and his or her compulsory retirement age.”

The above provision makes clear that it is not discrimination for an employer when providing benefits to an employee or category of employees to provide different benefits or different ages for admission to such schemes.  Such occupational benefits would encompass schemes such as illness and incapacity schemes and redundancy schemes.

Based on the above I find that the eligibility criteria contained in the Framework Agreement is not discriminatory in accordance with the provisions of Section 34(3) of the Act.

I have found that the eligibility criteria contained in the Framework Agreement is not discriminatory in accordance with the provisions of Section 34(7) of the Act.  Accordingly, I decide that this complaint is not well founded.

Collective agreements, discrimination