Case Number: ADJ-00024869. Workplace Relations Commission.

CourtWorkplace Relations Commission
Date01 May 2020
Hearing Date18 December 2019
Docket NumberADJ-00024869

ADJUDICATION OFFICER DECISION

Adjudication Reference:

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00024869

Parties:

Complainant

Respondent

Parties

Claire O'Dowd

Franciscan Province of Ireland

Complainant

Respondent

Anonymised Parties

An Accounts Office Worker

A Religious Congregation

Representatives

Peter McInnes of McInnes Dunne Solicitors

Graham Bailey of IBEC

Complaint(s):

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-00031477-001

08/10/2019

Date of Adjudication Hearing: 18/12/2019

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

1: General

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

The Claim under the Employment Equality Act,1998 specified Discrimination on the grounds of Age, Conditions of Employment, Discriminatory Dismissal and Dismissal because Discrimination was Opposed.

Regarding the four Discriminatory grounds advanced I am considering them as one Complaint as the evidence advanced covered all as one unit and differentiation would not be practical.

2: Anonymity

It was agreed that the names of the Parties could be mentioned in any WRC Published materials.

3: The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“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.”

The effect of this is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination lead to a presumption that discrimination has occurred. Referred to as “prima facie” evidence, the onus is on the Complainant to show that, based on the primary facts, she has been treated less favourably than someone who has not reached the age of 65. The primary facts are not in dispute: the Complainant was retired at age 65 and she wanted to remain at work. At the opening of the hearing, the parties agreed that, based on these facts, the Complainant has discharged the burden of proof which leads to a presumption that discrimination has occurred. Having established these facts, the burden of proof now shifts to the Respondent to show that discrimination has not occurred.

Background:

The issues in contention concern the alleged Discrimination on Age Grounds by the Employer, a Religious Foundation, against the Employee, an Office Worker, specifically the requirement to retire on her 65 birthday and an alleged Discriminatory refusal to allow her to continue working post her 65th birthday.

1: Summary of Complainant’s Case: Adjudicator precis of Written and Oral Evidence

The Complainant commenced employment with the Respondent on a 20 Hour a week basis in Sept 2009. She was effectively, compulsorily, retired on the 5th July 2019. Her application to work after her 65 birthday was rejected. The Respondent’s letter of the 5th June 2019, setting out reasons for refusal, was cited in evidence.

After her exit, a HR Consultant was engaged to review the decision. The Consultant investigated the issues involved in July 2019 and issued a Report shortly afterwards. The Report did not find in the Complainant’s favour.

It was submitted in comprehensive evidence from the Complainant that the Report was seriously flawed in many aspects, both legally and procedurally, and could not be relied upon by the Respondent to support their decision.

In detailed Legal evidence, covering both Irish and European law, the Complainant pointed to the growing body of Legal precedent that any Retirement Age needed to be Objectively justified and satisfactory of Achieving a Legitimate aim. Extensive case law was cited in evidence.

It was the Complainants case that firstly, No Proper Objective justification process had taken place regarding the decision to require the Complainant to stop working at age 65 and secondly, that there was No proper or justifiable Legitimate Aim being advanced to support the decision. Articles 4 & 6 of the “Framework DirectiveDirective 2000/78/EC were cited. Article 6 provides for a two-legged test for determining whether age discrimination is justifiable; firstly, is it objectively and reasonably justified by a legitimate aim; and secondly, are the means of achieving that aim appropriate and necessary.

The Complainant pointed to the cases of Georgiev and Technicheski universitet Sofia, [2010] ECR, C-250/09 and Seldon v Clarkson Wright & Jakes [2012] IRLR 591 of the UK Supreme Court in relation to the need for clarity and precision in any Aims and or Means being employed to achieve these. The landmark Irish Donnellan case, ...

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