Case Number: ADJ-00011207. Workplace Relations Commission

• Docket Number: ADJ-00011207
• Hearing Date: 17 December 2018
• Date: 08 May 2019
• Court: Workplace Relations Commission
• Parties: James Peter Maloney Vs. Ability West Clg

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, andfollowing 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 responded to an advertisement for a position of permanent, part-time bus driver with the Respondent, who provides residential and respite care services to intellectually disabled children and adults. The Complainant was successful in his application and was provided with a job offer both verbally and in writing. However, subsequent to the Complainant’s acceptance of the job offer, the Respondent realised that he was over 65 years of age and, as they have a retirement policy with a mandatory retirement age of 65, the job offer was withdrawn. During subsequent discussion the Respondent offered the Complainant a one-year fixed term contract. The Complainant rejected this offer and submitted a complaint, under the Employment Equality Act, 1998 – 2015, for discrimination on the age ground to the Workplace Relations Commission on 11 October 2017. An initial hearing took place into the Complainant’s complaint on 22 February 2018. However, the matter was subsequently referred to me for de novo investigation and I duly conducted a Hearing in this regard on 17 December 2018. In addition to considering the original complaint as submitted, I also considered all the evidence, written and oral, as presented by the parties.

Summary of Complainant’s Case:

Background: It was submitted on behalf of the Complainant, that, in about May 2017 the Respondent advertised a vacancy for a minibus driver, on an intranet recruitment site. It was submitted that the position was a permanent, part-time post involving 16 hours of work on Mondays/Tuesdays. According to the Complainant’s submission, the essential criteria for the position were as follows: · A full, clean B, D and D1 driving licences; · An awareness of and interest in the needs of people with intellectual and physical disability; · Evidence of the Driver Certificate of Professional Competence. The following section from the job advertisement was also cited: “[The Respondent] ispleased to be an equal opportunity workplace and is an affirmative action employer. We are committed to equal employment opportunity regardless of race, colour, ancestry, religion, sex, national origin, sexual orientation, age, citizenship, marital starters, disability, gender identity or Veteran status”. It was submitted on behalf of the Complainant that, apart from the reference to age in the previous paragraph, the issue of age was not mentioned anywhere else in the job advertisement. According to evidence submitted on his behalf, the Complainant applied for the position on 24 May 2017. It was further stated that the Complainant submitted his Curriculum Vitae, copies of his driver’s licence, driver’s card and driver’s qualification card. It was further submitted that the latter three documents all stated the Complainant’s date of birth. It was submitted that on, 12 June 2017, the Complainant received an email inviting him to interview, which he attended on 16 June 2017. It was further stated that, on 20 June 2017, a representative from the Respondent’s Human Resources Office (HR) telephoned the Complainant and advised him that he had been successful at interview and was being offered the job of permanent part-time minibus driver. On 23 June 2017, the Complainant received a letter from the Respondent offering him the position. The Complainant signed the offer letter, accepting the position, on 26 June 2017 and returned it to the Respondent. It was stated that the Complainant also completed the NFVB Salary Protection Scheme and return same to the Respondent. It was submitted that this document requires the Complainant to provide his date of birth. According to the Complainant’s evidence, on 28 June 2017, he received an email from the Respondent’s Training Coordinator, welcoming him to the organisation and inviting him to attend Fire Safety Training on 30 June 2017 and Manual Handling Training on 4 July 2017. It was stated that the Complainant attended the Fire Safety Training on 30 June 2017. It was further submitted that, on 3 July 2017, the Complainant attended a medical assessment at the request of the Respondent. According to the evidence submitted, the doctor who carried out the medical assessment, confirmed that the Complainant was “fine to drive for [ the Respondent]” and provided him with a report to that effect. The Complainant delivered the report directly to the Respondent’s offices. According to the Complainant’s evidence, he was contacted, later that day, by his then current employer, as he had heard that he (the Complainant) had been offered a position with the Respondent. The Complainant confirmed that he was taking up the position with the Respondent. It was further submitted that, as the Complainant had now informed his former employer, he started informing his former workmates. It was further submitted on behalf of the Complainant that, shortly after completing his Manual Handling Training, on 4 July 2017, he received a telephone call from the Respondent’s Assistant Director of HR (ADHR), in which he was asked to confirm his date of birth. It was stated that when the Complainant confirmed his date of birth to the ADHR, she informed him that the Respondent had just realised, from his Garda Vetting form, that he was over 65. According to the Complainant, the ADHR then informed him that, although she was sorry, the Respondent could no longer give him the job as their policy does not allow people to work after 65 years. The Complainant stated, in evidence, that he was completely shocked and embarrassed by the situation. He submitted that his date of birth was expressly stated on at least five documents which he had submitted as part of the recruitment process. The Complainant further stated that there was no mention of an age limit in the advertisement or in the Contract of Employment. According to the Complainant’s evidence, on 6 July 2017, he emailed a number of people in the Respondent’s organisation, including the Director of Human Resources (DHR) setting out what had occurred and expressing the deep levels of upset the Respondent’s actions had caused him and how humiliated he felt by the entire situation. The Complainant stated in evidence that, on the following day, 7 July 2017, the DHR acknowledged the email and stated that the matter would be looked into. According to the Complainant, later that day, the DHR telephoned him and requested to meet with him. The Complainant stated that he met with the DHR and the ADHR on 12 July 2017. According to the Complainant’s evidence, during the meeting, the DHR denied that details of his application for the job had been “leaked” to his former employer. However, the Complainant stated that he does not accept that. The Complainant also submitted that when he pointed out that his date of birth was on a number of documents provided to the Respondent, the DHR stated that they do not look at these at “that stage” and it was only when they received the Garda vetting that the realised the Complainant was over 65 years of age. The Complainant stated that the DHR then indicated that he was prepared to offer a one-year contract, with the possibility of another year. The Complainant stated that, in response to this offer, he indicated to the DHR that the Respondent had already offered him a position which he had accepted. According to the Complainant, the DHR contended that they were breaking policy by offering him a one-year contract. According to the Complainant, he rejected this and got extremely upset about the situation. The Complainant further submitted that, at this point he stated that he would seek advice. According to the Complainant, the DHR concluded by informing him that he (the DHR) would be stating in a letter that he (the Complainant) had refused the job with the Respondent. According to the evidence submitted on behalf of the Complainant, he received an email from the DHR, on 14 July 2017, which contained two attachments. One of the attachments was the one-year fixed-term contract which was on offer and the second attachment was the account/minute of the meeting of 12 July 2017. The Complainant stated that when he received a telephone call from the DHR, on 25 July 2017, he (the Complainant) confirmed that he was staying in his current employment unless he was provided with the permanent, part-time contract initially offered and which he had already accepted. In conclusion, it was stated that the Complainant did not know of the month of August 2017 whether his former employer will take him back and that this caused him much stress. It was further stated that, in previous years, the Complainant’s former employer would have offered him some runs when the schools were off, however, in 2017 the Complainant missed out on all of those opportunities. Legal Submissions/Caselaw: The Complainant’s legal representative made significant legal submission, in which the relevant legislation was identified as the Employment Equality Act 1998, with particular reference being placed on Section 6, 8 and 34 of the Acts. With regard to Section 6 (2), where it is stated that the comparator for age discrimination can be actual or hypothetical, it was submitted that in this case, the comparator is a hypothetical younger person to the Complainant. It was also submitted that, as a prospective employee accessing

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