Case Number: DEC-E2012-110- Full Case Report. Equality Tribunal.

Docket NumberDEC-E2012-110- Full Case Report
Date01 August 2012
CourtEquality Tribunal
Equality Officer's Decision
DEC-E2012-110

Parties

Roseanna Nolan
versus

Quality Hotel, Oranmore -now trading as Maldron hotel, Galway
(represented by Irish Business and Employers Confederation)

File reference: EE/2008/800
Date of issue: 27th August 2012

Keywords: Employment Equality Acts, Discrimination, Age, Retirement Age, Objective and reasonable justification

Dispute

1.1 This case concerns a complaint by Roseanne Nolan against her former employer Quality Hotel, Oranmore (Caruso Ltd) now trading as the Maldron Hotel, Galway that she was discriminated against on the grounds of age in terms of 6 (2)(f) of the Employment Equality Acts 1998-2008 [hereinafter referred to as 'the Acts'] regarding being forced to retire.


1.2 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 20th November 2008.
In accordance with his powers under Section 75 of that Acts, the Director delegated the case on 9th September 2011 to Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Acts. Submissions were received from both parties and a Hearing was held on 16th January 2011. The final correspondence received in relation to information sought by the Equality Officer was on 19th April 2012. In reaching my decision I have taken into account all of the submissions, written and oral, made by the parties.

Summary of the complainant's case

2.1 The complainant began work with the respondent on 28th August 1998 as a kitchen assistant. She submits that she enjoyed her work and continued to work there for nearly ten years. On 29th April 2008 she was ill and received a medical certificate from University Hospital, Galway for a week of sick leave.


2.2 Her date of birth was on this medical certificate which showed her to be 68.
She was then compulsorily retired as the respondent told her their retirement age was 65. She submits that she was shocked at this as she had no idea that the respondent had a mandatory retirement age. She said that on any of the documentation she received from the respondent over her ten years working there - retirement age was never mentioned. Ms Nolan stated that she wished to continue working as she is a fit and healthy woman and that she had no absenteeism issues. She submits that there was no custom and practice of people retiring there - the workforce was much younger.


2.3 She said that she was unable to find an other job as employers will not take on somebody who is 68.

Summary of the Respondent's case

3.1 Since Ms Nolan lodged her complaint the Quality Hotel, Oranmore (then a Choice Group hotel) has been taken over by Caruso Ltd and is now trading as Maldron Hotel, Galway. They submit that she was a conscientious worker and attained 'Employee of the month' in April 2007. However, the respondent submits that Ms Nolan lied on a medical questionnaire filled out on 16th March 2004 where she stated her date was 30th August 1950. When the medical certificate was presented in April 2008 it became clear that her actual date of birth was 30th August 1940. Following this absence on sick leave (prior to being retired) she requested to work a four day week which she was granted.

3.2 On 26th May 2008 the General Manager told Ms Nolan that the hotel had a retirement age of 65 and that they would have no option but to retire her. She was given four weeks notice and he wished her well.

Conclusions of the Equality Officer

4.1 The issue for me to decide is whether or not Ms Nolan was discriminated on the grounds of age in terms of Section 6 2 (f) of the Acts contrary to 8(6)(c). Section 6 (1) of the Acts provides that discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated.


4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination.
It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Prima facie evidence has been described as 'evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.'1

4 .3 There are two issues for me to decide:
(i) Was the complainant discriminated regarding her conditions of employment regarding her age?

(ii) Was the complainant discriminatorily dismissed on the grounds of age?

Conditions of employment

4.4 No evidence has been adduced that the complainant has been treated less favourably because of her age regarding her conditions of employment. Therefore this strand of her case fails.

Dismissal

4.5 There is no dispute that Ms Nolan was compulsorily retired when the hotel realised what age she was. However, there remains two disputes of fact between the parties:
(i) Was the complainant aware of the company's retirement age?

(ii) Did she deliberately lie about her age?

The complainant correctly points out that the employee handbook she was given (and signed that she received) mentioned nothing about a retirement age.
The copy given to me at the hearing was one after the hotel became part of the Maldron Group i.e. after Ms Nolan lodged her complaint. The complainant did not receive it while she was working for the respondent. I requested Ms Nolan's Personnel file and there is no record of any documentation given to her detailing the hotel's retirement age. The respondent submits that she should have known 65 is the compulsory retirement age. They cite McCarthy v HSE in their defence2. In that case, Hedigan J found that Ms McCarthy, a radiographer who also qualified as a barrister, should have known that the standard retirement age for public servants employed...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT