ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00046620

Parties:

	Complainant	Respondent
Parties	John Byrne	Health Service Executive

	Complainant	Respondent
Anonymised Parties

Representatives

Andrew Turner,

Hamilton Turner Solicitors

Edward Walsh Solr.,

Byrne Wallace Solrs.

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-00057588-001	07/07/2023

Date of Adjudication Hearing: 09/11/2023 and 10/01/2025

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 (as amended) a complaint has been referred to the Director General of the Workplace Relations Commission who has in turn deemed it appropriate that the complaint be investigated with any appropriate and/or interested persons to be provided with an opportunity of being heard. In these circumstances and following a referral of this matter, by the said Director General, to the Adjudication services, I can confirm that I am an Adjudicator appointed for this purpose (and/or an Equality Officer so appointed).

I confirm I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing and in the course of the hearing (and which have been opened to me).

In general terms, an Adjudication Officer cannot entertain a complaint presented after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates. Section 77(5) of the Employment Equality Act states:-

“…a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”

In limited circumstances, a complaint presented outside the relevant period may be entertained if the failure to present was due to reasonable cause. This will not exceed a twelve-month period. No issue arises in this regard.

Where a person believes they have been discriminated against on one of the nine recognised grounds or in any other way has been treated unlawfully under the Employment Equality Acts they must write to the party that they believe has treated them unlawfully using the EE2 form asking for relevant information to determine their course of action. The proposed Respondent may reply by way of form EE3. No issue has been raised in this regard.

The Complainant herein has referred a matter for adjudication as provided for under Section 77 of the 1998 Act (as amended). In particular the Complainant (as set out in his Workplace Relations Complaint Form dated the 7th of July 2023) seeks redress from the Respondent in circumstances where he claims his Employer behaved unlawfully and discriminated against him in the course of his employment wherein he says that he was treated less favourably than another person has or would have been treated in a comparable situation on the grounds of his Age (as detailed in Section 6 of the 1998 Act (as amended)).

The Operative Section is Section 6 of the Employment Equality Act 1998 where :-

Sub Section 6 (1) For the purpose of this Act…discrimination shall be taken to occur where…

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) …..(the “discriminatory grounds”).

Section 6 (2) As between any 2 persons the discriminatory grounds .. are…

(f) That they are of different ages…. (the “age ground”)

In circumstances that the Complainant’s claim is upheld, it is open to me to make an award of compensation for the effects of the acts of discrimination which have occurred or been experienced. It is also open to me to direct that a certain course of action should be taken by an appropriate party which might eliminate such an occurrence in the future (per Section 82 of the 1998 Employment Equality Act).

It is acknowledged that in the context of employment equality issues, a Complainant may well have little or no direct evidence of discrimination. EU law recognised this and has adopted a burden of proof in all Equality Directives which recognises the difficulty of giving evidence of direct discrimination. Article 19(1) of the Recast Directive (Directive 2006/54) provides as follows –

“….when persons, who considered themselves wronged because the principle of equal treatment has not been applied to them, establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.”

This has been transposed into Irish law by section 85A of the Employment Equality Acts:

85A.—(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.

This amounts to the Prima Facie obligation on the Complainant. Section 85A places the burden of establishing the primary facts fairly squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.

There is no exhaustive list of circumstances which are required in terms of discharging the initial burden - the Labour Court has consistently stated that the type or range of facts which may be relied upon by a complainant can vary significantly from case to case.

The approach taken by the WRC and the Labour Court regarding the application of section 85A (burden of proof) is well settled in a line of decisions of both bodies starting with the Labour Court’s Determination in Mitchell v Southern Health Board ([2001] ELR 201) wherein the Court stated:

“The claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only where these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

In the case of Kieran McCarthy v Cork City Council EDA 082 the Labour Court stated that:

“The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts”

Once the Prima Facie case is established, the Respondent must rebut the prima facie case. This will require cogent evidence.

In Nevins, Murphy & Flood v Portroe Stevedores (EDA 051) the Labour Court held in adopting the reasoning of the Employment Appeals Tribunal for Great Britain in Barton v Investec Henderson Crosthwaite:-

“that since the facts necessary to prove a non-discriminatory explanation would usually be in the possession of the respondent, the Court should normally expect cogent evidence to discharge that burden…. mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution”.

The Adjudicator must determine if the explanation provided by the respondent is adequate to discharge the burden of proof that the protected characteristic was not a factor in the treatment complained of.

Background:

This hearing was conducted over the course of two days and in person at the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

I informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and where there is potential for a serious and/or direct conflict in evidence between the parties to a complaint, then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate and in order that matters might progress. It is noted that the giving of false statement or evidence is an offence.

The Specific Details of the complaint are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 7th of July 2023.

At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the written submissions made by the parties. I have noted the respective position of the parties. I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.

Summary of Complainant’s Case:

The Complainant was at all times fully represented. Initially the Complainant was represented by a representative from the UNITE trade union and thereafter the Complainant was represented by his Solicitor. When it came time to hear the Complainant’s evidence, the Complainant agreed to make an Affirmation to tell the truth. I was provided with a trade union submission dated the 9th of November 2023. A supplemental submission was provided by the Complainant’s Solicitor on the 26th of September 2024. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form. I was provided with supplemental documentary evidence in support of the Complainant’s case. No objection was raised to any of the material relied upon by the Complainant in making his case. The Evidence adduced by the Complainant and his witness was challenged as appropriate by the Respondent’s Representative.

The Complainant set out his complaint as follows:-

The Complainant is 77 years of age. He is a qualified plumber and has worked as a plumber for many years. There is no question as to his ability as a plumber and there are no complaints about his work or his capacity for work. He has recently passed a medical and so there are no questions as to his physical or mental capacity.

His employer has continued to employ him well beyond the retirement age of 70.

Towards the end of 2022 they notified him that they wanted him to retire but have offered no reason that would provide a legitimate aim of his retirement, as required for under the employment equalities legislation. The Complainant does not accept that he should be forced to retire.

We reserve the right to make further and more detailed submissions at the hearing of the claim.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

Summary of Respondent’s Case:

The Respondent provided me with a preliminary submission dated the 15th of March 2024. A second submission was received on the 23rd of December 2024.

The Respondent had representation at this hearing. Initially a senior HR executive represented the interests of the Respondent. This task fell to legal representation on the second day of hearing.

I heard evidence from two witnesses for the Respondent. All evidence was heard following on Affirmation.

The Respondent accepted the Complainant’s assertion that the forcible retirement of the Complainant simply because it had come to the attention of his Employer that he was a certain age was discriminatory. The Respondent asserts that having reversed that decision, the within proceedings were unnecessary.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

Findings and Conclusions:

I have carefully considered the evidence adduced over the course of the two days that his matter was listed for hearing. A long gap between the hearing dates allowed the parties reach a partial and ongoing compromise concerning the Complainant’s status of employment. This narrowed down the issues to be considered on the second day of hearing.

The Complainant was born in 1945. The Complainant was 79 years of age when he came in front of the WRC to give his evidence. The Complainant is a plumber working with the HSE. By 2010 the Complainant had reached the age of 65 but there was seemingly no expectation that the Complainant would retire, and the Complainant was happy to continue working in the workplace. The Complainant’s employment continued, in fact, for another 12 years.

Then, in 2022, the Complainant’s age (which was about 77) came into focus in the course of what I might describe as a routine workplace disciplinary matter. As I understand it, the Complainant had had an issue with a line manager concerning his whereabouts on a particular date. The Complainant worked across a number of HSE sites, and his line manger had challenged the Complainant’s account of where he had been on a particular date. There had been previous issues similar to this and this is why the issue was escalated to a disciplinary process in around August of 2022. I confirm that nothing in particular turns on the fact the Complainant’s perceived misconduct was being looked at. Nothing about this process was discriminatory and in fact I would consider the approach taken by the Employer (particularly the Maintenance Manger) to have been relatively mild and I heard evidence from the Maintenance Manger Mr. S about the disciplinary procedure.

The Complainant was represented by his trade union representative Mr. K. As I understand it, it was whilst the disciplinary process was being conducted that Ms. C (who was the Operations Manager for the estates department in which the Complainant worked) became aware of the Complainant’s age. Ms. C it seems raised the issue of his age together with the workplace policy on the age of retirement with the Complainant and the Complainant felt that the remarks made were pointed and in fact he gave evidence that the linkage between the disciplinary process and his age was tantamount to intimidation.

For the avoidance of doubt, I accept that Ms. C was bound to follow up on the issue of the Complainant’s age once she had been alerted to it. I am not suggesting that she was bound to forcibly retire him, but for health and safety reasons I accept she would have to be satisfied that his continued employment was safe for him and his colleagues. I also note that the Complainant had used the excuse of having “forgotten” where he was at a particular time in the working day which, of itself, was justification for raising an alarm bell with Ms.C.

Ms. C gave evidence that as of the 22nd of April a circular (019- 2021) directed at the HSE, it was confirmed that:

A relevant public servant shall retire from being a public servant at the latest upon attaining the age of 70 years or, where a higher age is prescribed by order under subsection (2), upon attaining that higher age.

This notification was in line with the Public Service Superannuation (Age of Retirement) Act 2018

The Complainant received a Disciplinary Hearing letter from Ms. C on the 30th of August 2022 concerning the ongoing monitoring of his attendance in the workplace and referring the Complainant on to Occupational Health. This step was ostensibly to deal with the forgetfulness which the Complainant had complained of.

The Complainant then received a letter from Ms. C on the 20th of September 2022 which read:

“It is HSE policy that staff who are Class A PRSI contributors must retire at maximum retirement of 70 years. As you have now exceeded the age limit, I must bring this policy to your attention.

I have attached HR 106 and HR 107a retirement forms for you to complete as soon as possible. Please return the forms to your line Manager.

I wish to take the opportunity to thank you for all the service that you have given the HSE over the last 40 years and wish you the best during your retirement.

This letter was unsolicited and came as a shock to the Complainant who had no ambition to retire.

The Complainant then received a second letter from Ms. C on the 3rd of October 2022 which was identical to the one of the 20th of September 2022. A third one arrived on the 18th of October 2022. These were all pro forma letters. I accept that the Complainant must have felt somewhat overwhelmed by these letters in circumstances where the Complainant was not looking to retire and did not have the required financial wherewithal to retire.

It is important to note that the Complainant (at the request of his Employer) had had a routine physical assessment conducted by Medmark in and around September and October of 2022. In essence the Complainant was certified fit to work.

The Complainant contacted his Union Representative Mr. K, who was happy to represent the Complainant in the next few steps. In a communication dated the 25th of November 2022, Mr. K indicated that the Complainant wished to appeal the HSE decision to retire the Complainant. Mr. K points out that:

There is no question as to Mr. Byrne’s capacity at this point. There are no reasons offered that would provide a legitimate aim as required for under the employment equalities legislation.

The Respondent witness who had been dealing with this issue - Ms. C - said that she brought the HR department in at this stage. She explained that she had HR oversight for the Department at a local level but was not trained.

In tandem with this line of communication the Complainant was also moving through the tail end of the disciplinary process started in August of 2022. On the 24th of January 2023 the Complainant received a letter from the above mentioned Maintenance Manager stating:

I had asked that you review your attendance at work pattern, and I am happy to note the marked improvement. I would urge you to continue with this.

I note that you attended Occupational Health Department who are satisfied that you continue to work. We will review this with OHD on annual basis. Please be aware that my door is always open to you, if your wish to discuss any matters.

This last communication seemed to park the issue of retirement for the time being and as I understand it the parties agreed that the issue of the Complainant’s retirement might be put to the WRC for a final adjudication. This was negotiated between HR Manager Mr. R of the HSE and Mr. K. I can understand that the HSE might have been looking for an adjudication decision in circumstances where any number of employees were remaining in the workplace beyond what might be described as more usual ages. The evidence of the Respondent witness Ms. C confirmed that the issue of persons over 70 continuing to work in the workplace was under active review at that time. The witness suggested that arising out of covid and the HSE cyber attack there had been a backlog in reviewing staff profiles to propose retirements. This witness was very clear that most if not all candidates eligible to retire, do retire. They are happy to do so. The Complainant was an anomaly in this regard.

The Respondent has therefore asked that I consider this suggestion that the matter be put before the WRC to have been an extremely reasonable step to take. As against this, the Complainant found the fact of having to put the issue of his continued employment before a third-party body such as the WRC, was intimidatory.

Unfortunately, however, the Complainant went out sick following a workplace accident in and around the March of 2023. This did not impact his continued service. However, this does appear to have delayed the referral of this matter to the WRC which also suffered from a false start as it was initially referred for conciliation. Ultimately this matter was referred to Adjudication on the 7th of July 2023. Unfortunately, before that date at least one more pro forma letter issued concerning the Complainant’s proposed retirement.

The complainant’s trade union representative Mr. K gave evidence in support of the Complainant’s case. Mr. K confirmed that he thought that a referral to the WRC was a reasonable proposal. He confirmed the Complainant’s evidence and further noted that between the issuing of the within complaint form and the bringing of this matter on for hearing, the HSE indicated that it was no longer contesting the Complainant’s entitlement to continue to work with the HSE. This was confirmed in March of 2024. This did not effect the Complainant’s day to day position in the workplace one way or another.

It is noted that the Complainant has continued to be an employee of the HSE right up to the final date of the hearing of this matter in January 2025 and beyond. Despite this, the Complainant is aggrieved at the fact that his position was ever threatened with a forced retirement. He felt, I was told by his representative, very let down by his Employer. His case is that the series of letters he received coupled with the stress and duress he experienced amount to discriminatory acts for which he is entitled to be compensated.

In response to this assertion, Ms. C on behalf of the Respondent said she sent out the repeated letters inline with her approach to all persons who had attained the age of 70 in and around that time. Ms. C also noted that the Complainant incorrectly tried to conflate the issue of an ongoing disciplinary procedure with the fact that she was trying to implement a retirement process in accordance with legislation.

It is worth noting that in between the first and second hearing dates compulsory retirement ages in the public sector were considered by the Supreme Court in the case of:

Seamus Mallon v The Minister for Justice, Ireland, and the Attorney General [2024] IESC 20

In that case, the Supreme Court found that the retirement age of 70 imposed on sheriffs pursuant to section 12(6)(b) of the Court Officers Act 1945 was not in breach of the EU Equality Directive. It found that a generally applicable retirement age has to be justified. Provided that the aim sought is legitimate and the means of achieving that aim are “appropriate and necessary” (proportionate), a mandatory retirement rule does not offend the prohibition on age discrimination in the Directive

As pointed out by Mr. K there was no clear justification being provided for the decision to retire the Complainant at the age of 77 when he had clearly long since moved past the age of 70 which purported to operate as the age of retirement in the workplace.

On balance, I am finding that the decision to put pressure on the Complainant to retire at the end of 2022 was discriminatory. The pressure was applied simply because he was of an age. Repeatedly sending letters were acts of discrimination which were upsetting for the Complainant. That said I cannot find that the Respondent has acted completely unreasonably. When this issue came to a head in 2022 the Respondent had a policy which it sought to abide by. The Complainant pushed back, and the Respondent agreed (in collaboration with the Complainant’s union representative) to consider that push back with the assistance of the WRC – this was not an unreasonable approach given the implications of any change in policy or latitude given across this wide and varied workforce.

Thereafter, it is noted the Respondent opted to acquiesce altogether and ultimately came before the WRC to meet some sort of claim for compensation for the stress and uncertainty experienced by the Complainant.

Had the Complainant been forcibly retired on the basis of his age and not his competency and/or ability then there is no doubt that this would have amounted to a wholesale age related discrimination. However, the Complainant was not retired. The complainant’s status was not put on hold in any way. The Complainant continued to work and get paid a wage for the duration of this process.

I cannot therefore compensate the Complainant on the scale that was indicated to me as being acceptable to him.

I award the complainant €2,000.00 compensation for the fact of letters directing his imminent retirement having been issued. This might be seen as having been a somewhat insensitive approach which I accept did give rise to upset.

Also, I am finding as a matter of fact that the disciplinary issue is separate and apart from the discrimination issue. The fact that the Complainant and his foreman had a difficult relationship seems to have been accepted in the course of the hearing before me. This was not particularly challenged by the Complainant. The Complainant had had performance issues concerning his accountability and this issue came to a head when his foreman asked him to return to the workplace from a satellite location and the Complainant refused. This amounted to a perception of insubordination coupled with the fact that the Complainant could not when asked account for his whereabouts at the time in question.

The Complainant said he could not remember what he had done and where he had been two days earlier. The Respondent opted to take this at face value and have the Complainant’s cognitive function and general health assessed. This is well within the limits of what the Employer should be seen to be doing in the circumstances. The Employer Respondent is under a duty of care to HSE patients and colleagues alongside whom the Complainant works to ensure that the Complainant is capable of performing the tasks required of him.

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.

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

CA-00057588-001 -

In circumstances that the Complainant’s claim is upheld, it is open to me to make an award of compensation for the effects of the acts of discrimination which have occurred or been experienced. For the reasons outlined above I am awarding compensation for the acts of discrimination in the amount of €2,000.00.

Dated: 14-05-25

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Key Words: