Case Number: ADJ-00006654. Workplace Relations Commission

Docket NumberADJ-00006654
Date01 November 2017
CourtWorkplace Relations Commission
PartiesA Box Office Cashier v An Arts & Entertainment Centre

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00006654

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-00008980-001

05/01/2017

Date of Adjudication Hearing: 24/10/2017

Workplace Relations Commission Adjudication Officer: Ewa Sobanska

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015 (‘the Act’), 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.

Background:

The Complainant was employed as a Box Office Cashier, commencing with the Respondent on 30th April 2007 until the termination of her employment on 29th July 2016 on reaching the age of sixty-five. She was paid on average €220 gross per week and worked 20 hours a week. She claims that she was discriminated against by the Respondent on the grounds of age and gender, and that she was treated unlawfully by being dismissed for discriminatory reasons.

Summary of Complainant’s Case:

The Complainant signed a contract of employment dated 23/02/2010. That contract contains a provision that the normal retirement age (‘NRA’) was set at age sixty-five. On 26th May 2016 the direct manager of the Complainant reminded her of her upcoming birthday and her prospective retirement. In June 2016, the Complainant queried the basis of the Respondent’s decision to retire her on attaining the age of 65 given that other staff members were not subject to the application of the aforementioned retirement age. The Respondent informed her that they were “implementing the retirement terms as per your contract, and adhering to what is the wider company policy”. The Respondent indicated that they could consider offering casual work on a fixed term basis. However, the Respondent did not identify how was the offer objectively justified. The Complainant declined that offer. SIPTU wrote to the Respondent on 6th October 2016 seeking clarification. The Respondent replied on 6th December 2016 setting out what they deemed to be the objective justification for the retirement age of 65. No explanation as to why differing retirement ages for other staff had been applied or continued to be applicable was provided.

In relation to discrimination on the grounds of age the Complainant told the hearing that the decision to terminate her employment was directly related to her age. At the time of her dismissal other employees had been and were being treated more beneficially in relation to the application of NRA. Ms R was employed until 2014 when she retired aged 69. Mr K is still in employment at the age of 79. The Complainant submits that these are clear examples that there are differing and more beneficial retirement requirements applicable within the Respondent’s employment. At the time of the Complainant’s retirement the Respondent did not objectively justify her age of retirement as per S. 34(4) of the Act.

In relation to discrimination on the grounds of gender, the Complainant submits that it is obvious in comparison to Mr K, given his gender, that the concept of equal treatment between the genders has not been adhered to by the Respondent when dismissing the Complainant. She argues that at the time of her dismissal she was entitled to the application of gender equality in comparison to her male colleague.

At the time of dismissal, the Complainant was fit, well and capable of carrying out the functions and duties associated with her job. The State had at the time of the Complainant’s dismissal increased the State pension age to 66 and required the Complainant to remain available for work until at least age 66.

The legal submission on her behalf relied on section 6(1) of the Employment Equality Act, 1998 and the Equality (Miscellaneous Provisions) Act, 2015. The latter amends the former Act in respect of retirement age in requiring retirement on grounds of age to be ‘objectively and reasonably justified by a legitimate aim’, and requiring the means of achieving that aim to be ‘appropriate and necessary’.

Summary of Respondent’s Case:

The Respondent submits that they came under control of a separate legal entity in 2012. In preparation for the taking over a range of corporate governance and best practice audits were undertaken. As a result, formal contracts were entered into with all staff. The Complainant’s contract was signed and dated by her on the 23rd February 2010. In addition, a detailed set of policies and procedures (including clear view of the Respondent in respect of discrimination) were adopted and introduced through an Employee Handbook. Both documents refer to the normal retirement age as being 65. At no time did the Complainant challenge, dispute or seek further clarity of the NRA.

In the circumstances, it was at all times clear to the Complainant that her employment would terminate upon her reaching the retirement age of 65. The Respondent inquired with the Complainant her interest in coming back to working occasionally during busy periods. The Complainant subsequently declined. Only then the Respondent started a recruitment process with regard to the Box Office.

In June 2016, the Complainant queried the application of the NRA and the Respondent replied that they were “implementing the retirement terms as per your contract, and adhering to what is the wider company policy”. The Complainant raised no further issue and attended in good humour a retirement lunch to honour her service.

In October 2016, the Respondent received correspondence from SIPTU challenging the retirement as a breach of the 1998 Act. The Respondent replied setting out the contractual basis for the NRA, the exceptional basis that applied in respect of a previous extension for an employee remaining in employment post the age of 65 and the objective justification underpinning the NRA.

The Respondent relies on Section 34(4) of the Act, which provides a statutory basis for the age-related derogations as permitted by Art. 6 of the Directive 2000/78/EC. The Respondent submits that the validity of Section 34(4) of the Act had been upheld in numerous national domestic and European cases and cited extensive case law in that regard.

The Respondent never sought to adopt an absolutist approach to the application of the NRA and has applied a very limited number of extensions where exceptional circumstance arose, including extension offered to the Complainant.

In respect of the comparators the Respondent submits that Ms R worked with the Respondent from 1998 and retired voluntarily in May 2014 aged 69. Ms R being a female cannot be a comparator within the meaning of the 1998 Act in respect of alleged gender discrimination. Ms R was already 65 when the ownership of the Respondent changed. Therefore, at the point of Ms R reaching 65, the Respondent held only a letter of offer from 1998, which made no mention of a NRA. Ms R’s retirement was addressed. However, given the weaker contractual position and her having already worked beyond age 65 it had to be approached in different manner.

Mr K is a Front of House Supervisor. He may be the only member in the organisation with whom the patrons interact with so their interactions are of prime importance. The Respondent outlined specific in depth experience and qualifications of Mr K. Mr K and the Complainant are not engaged in like work and they do not share either like roles or offer like experience to the role of Mr K. In retaining Mr K on past the NRA, the Respondent recognised that he is uniquely positioned to fulfil that longstanding role within Front of House. Mr K commenced his employment with the Respondent in 2002 and was 72 when the ownership of the Respondent changed.

However, with exception...

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