Calor Teoranta v McCarthy

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 19 March 2009
• Neutral Citation: [2009] IEHC 139
• Judgment citation (vLex): [2009] 3 JIC 1903
• Court: High Court
• Date: 19 March 2009

[2009] IEHC 139

THE HIGH COURT

[No 62 MCA/2008]

Calor Teoranta v McCarthy

IN THE MATTER OF THE EMPLOYMENT EQUALITY ACT 1988 AND IN THE MATTER OF AN APPLICATION PURSUANT TO S. 90(1) OF THE SAID ACT

BETWEEN

CALOR TEORANTA

APPLICANT

AND

MICHAEL McCARTHY

RESPONDENT

EMPLOYMENT EQUALITY ACT 1998 S90(1)

EMPLOYMENT EQUALITY ACT 1998 S8

EMPLOYMENT EQUALITY ACT 1998 S83

HENRY DENNY & SONS IRL LTD v MIN FOR SOCIAL WELFARE 1998 1 IR 34

NATIONAL UNIVERSITY OF IRELAND CORK v AHERN & ORS 2005 2 IR 577

ANTI DISCRIMINATION (PAY) ACT 1974 S8(3)

ASHFORD CASTLE v SIPTU UNREP CLARKE 21.6.2006 2006/3/487 2006 IEHC 201

EMPLOYMENT EQUALITY ACT 1998 S34(4)

EMPLOYMENT EQUALITY ACT 1998 S6(1)

FELIX PALACIOS DE LA VILLA v CORTEFIEL SERVICIOS SA 2007 2007 IRLR 989 2008 AER (EC) 249

VON COLSON & KAMANN v LAND NORDHEIN-WESTFALEN 1984 ECR 1891

EMPLOYMENT

Discrimination

Age - Termination of employment at age of sixty - Claim that retirement age of sixty five agreed - Assurances of employer - Appeal against determination of Labour Court -Appeal on point of law - Scrutiny of decision - Decision on retirement age - Whether outside role of court to determine retirement age - Whether finding sustainable on evidence - Procedural issue - Surprise - Request to call additional evidence - Procedural autonomy - Constitutional justice - Ability to seek information in advance of hearing - Discretion - Compensation - Jurisdiction - Requirement for compensation to be effective and proportionate - Complaint of absence of analysis regarding award of compensation - Pecuniary loss - Henry Denny and Sons Ireland Ltd v Minister for Social Welfare [1988] 1 IR 34, National University of Ireland Cork v Ahern [2005] IESC 40, [2005] 2 ILRM 437, Ashford Castle v SIPTU [2006] IEHC 201 [2007] 4 IR 70, Felix Palacios de La Villa v Cortefiel Servicios SA [2007] ECH 6773 and Von Colson v Land Nordhein-Westfalen [1984] ECR 1891 considered - Employment Equality Act 1998 (No 21), ss 34 and 90 - Appeal dismissed (2008/62MCA - Clarke J - 19/3/20089) [2009] IEHC 139

Calor Teo v McCarthy

1. Introduction

2 2 1.1 These proceedings involve an appeal taken by the applicant ("Calor") under s. 90(1) of the Employment Equality Act 1998, ("the Act") against a determination of the Labour Court (Determination No. EDA089) made on the 11 ^th April, 2008. In that determination the Labour Court found that Calor had discriminated against the respondent ("Mr. McCarthy") on the grounds of age in contravention of s. 8 of the Employment Equality 199821 and 2004 ("the Acts"). The Labour Court, in consequence, awarded Mr. McCarthy the sum of €46,000.

3 3 1.2 It is necessary to turn first to the procedural history of the application up to the determination of the Labour Court.

2. The Process Before and at the Labour Court

2 2 2.1 On the 23 ^rd December, 2004, Mr. McCarthy made a complaint of discrimination against Calor to the Equality Tribunal under the provisions of the Act. The basis of Mr. McCarthy's complaint was that the termination of his employment with Calor on reaching the age of sixty constituted discrimination on the basis of age. Mr. McCarthy's complaint was heard by an Equality Officer on the 18 ^th June, 2007. By decision dated the 12 ^th September, 2007, the Equality Officer concerned found that Mr. McCarthy had not been discriminated against.

3 3 2.2. On the 16 ^th October, 2007, Mr. McCarthy appealed the decision of the Equality Officer to the Labour Court in accordance with s. 83 of the Act. The Labour Court heard Mr. McCarthy's appeal on the 14 ^th March, 2008. It will be necessary to return to one aspect of that hearing in more detail in due course as it gives rise to one of the grounds of appeal with which I am concerned. However, Calor says that it was taken by surprise by one aspect of the evidence given at the hearing. It would appear that some days later a representative of Calor wrote to the Labour Court asking that Calor be permitted to lead additional evidence to counteract the evidence which, it was said, had taken Calor by surprise. Correspondence ensued between the Labour Court and both parties. In substance the Labour Court declined to hear that additional evidence and proceeded to make the determination of the 11 ^th April, 2008, to which I have already referred.

4 4 2.3 It is next appropriate to turn to the general legal principles applicable to an appeal such as that with which I am concerned.

3. The Legal Basis of the Appeal

2 2 3.1 The appeal provided for from a decision such as that of the Labour Court in this case is confined to an appeal on a point of law. The scope of such an appeal has been considered in a number of cases stemming from Henry Denny and Sons Ireland Limited v. Minister for Social Welfare [1988] 1 I.R. 34. In more recent times the Supreme Court again had to consider the scope of such an appeal in National University of Ireland Cork v. Ahern and Others [2005] 2 I.L.R.M. 437, where McCracken J. (speaking for the Supreme Court) indicated that the fact that an appeal is on a point of law does not prevent the court from examining "the basis upon which the Labour Court found certain facts". McCracken J. went on to note that:-

"The relevance, or indeed the admissibility, of the matters relied on by the Labour Court in determining the facts is a question of law. In particular, the question of whether certain matters ought or ought not to have been considered by the Labour Court and ought or ought not to have been taken into account by it in determining the facts, is clearly a question of law, and can be considered on an appeal under section 8(3)."

3 3 3.2 Ahern was a case involving a complaint under the Anti Discrimination (Pay) Act 1974. The reference to s. 8(3) was a reference to the relevant section of that Act. The case is illustrative of the sort of matters which are properly scrutinised by a court hearing an appeal on a point of law. One of the issues in Ahern was as to whether the workers concerned were engaged in "like work" to comparators put forward as the basis for their contention as to discriminatory pay and conditions. Dealing with that aspect of the case McCracken J. noted as follows:-

"I accept that the consideration of whether there was 'like work' or not is almost entirely a question of fact. The Labour Court did set out in some detail its considerations of the various aspects of the work performed by the security services officers and the switchboard operators and reached a conclusion of fact. Insofar as this conclusion determines that there was 'like work' there were grounds upon which the Labour Court was entitled to make that finding, and indeed as the general duties between the main body of switchboard operators and the comparators did not differ greatly, the Labour Court was also entitled to find that the comparators were engaged in 'like work' with the Respondents."

4 4 3.3 Thus, on the "like work" aspect of the case, the Supreme Court determined that the question was one of fact and that the court should not interfere with that finding of fact by the Labour Court provided that there was a basis in the evidence for the relevant determination.

5 5 3.4 However, on the question of discrimination, the Supreme Court, having noted that there were different terms as to pay between the workers concerned and the comparators put forward, but that there were established differences in pay between other categories of workers which appeared to be based on objective factors, found that the Labour Court "ought then to have considered the question whether the difference in remuneration between the respondents and the comparators might have the same basis. The Labour Court failed to give any consideration whatever to the fact that the comparators worked shorter hours and lesser duties than their full time colleagues".

6 6 3.5 This latter passage demonstrates that the Supreme Court was happy to scrutinise the manner in which the Labour Court had come to its conclusion in that case concerning discrimination. The failure to carry out an appropriate analysis was identified and resulted in a successful appeal with the matter being remitted back to the Labour Court to carry out the analysis which the Supreme Court determined should originally have been made. The difference between the two issues is, of course, that the "like work" question was a pure question of fact while the discrimination question involved a number of issues which required the Labour Court to address the reasons for any established difference in terms and conditions. The discrimination question was open to scrutiny on the basis of whether all relevant factors had been addressed.

7 7 3.6 It is clear, therefore, that this Court can scrutinise the extent to which the Labour Court considered all necessary matters and excluded from its consideration any matters that were not appropriate. However, a legitimate and sustainable judgment of the facts based on a proper consideration of all relevant materials should not be interfered with by this Court. Likewise, particular deference should be paid to the judgment of the Labour Court on matters which are within its own special expertise. See Ashford Castle v. S.I.P.T.U. [2006] I.E.H.C. 201

8 8 3.7 Against that general background it is necessary to turn to the central grounds of appeal raised on behalf of Calor.

4. The Grounds of Appeal

2 2 4.1 In order to understand the grounds of appeal it is necessary to say something about the issues which arose before the Labour Court. There was no doubt but that Mr. McCarthy was, in fact, required by Calor to retire at sixty. There was a dispute between Mr. McCarthy and Calor as to whether sixty was, in fact, his agreed retirement age. It will be necessary to consider the basis of the findings of the Labour Court in...