Case Number: EDA1513. Labour Court

• Judgment Date: 01 July 2015
• Docket Number: EDA1513
• Court: Labour Court (Ireland)

FULL RECOMMENDATION ADE/14/45 DETERMINATIONNO.EDA1513 INDUSTRIAL RELATIONS ACTS, 1946 TO 1990; SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 ; PARTIES : EARAGAIL EISC TEORANTA; (REPRESENTED BY O'DONNELL MC KENNA SOLICITORS); - AND -; RICHARD LETT; (REPRESENTED BY JOHN A SINNOTT & CO SOLICITORS); DIVISION : Chairman: Mr Duffy; Employer Member: Ms Cryan; Worker Member: Ms Tanham

SUBJECT:
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.


BACKGROUND:

2. The Worker and the Employer appealed the decision of the Equality Officer to the Labour Court on 10th and 12th December, 2014 in accordance with Section 83 of the Employment Equality Acts, 1998 to 2011. Labour Court hearings took place in April and in June, 2015 with further information submitted to the Court by the parties at later stages. The following is the Determination of the Court:


DETERMINATION:

This is an appeal by Richard Lett and a cross appeal by Earagail Eisc Teoranta against a decision of the Equality Tribunal. The case arises from the termination of the Mr Lett’s employment on reaching his 66^thbirthday. He claims that the circumstances of what he characterised as his dismissal constituted discrimination against him on grounds of his age. Mr Lett was also reduced to a three day week in February 2011, at which time he was also informed that he would be compulsorily retired on 7^thSeptember 2011, the date of his 66^thbirthday.

Mr Lett brought a claim before the Equality Tribunal pursuant to the Employment Equality Acts 1998 -2011 (the Act) contending that he was discriminated against on grounds of his age. The Equality Tribunal found for Mr Lett on both points and awarded him compensation in the amount of €24,000.

In this Determination the parties are referred hereafter as they were at first instance. Hence, Mr Lett is referred to as the Complainant and Earagail Eisc Teoranta is referred to as the Respondent.

The Complainant now appeals against the quantum of the award of compensation made by the Equality Officer. The Respondent cross appeals against the totality of the Equality Officer’s decision.

The parties made helpful written and oral submissions on the issues arising in the case and the Court heard oral evidence tendered by both parties. Following the hearing the parties made final written submissions. All of the submissions and the evidence adduced have been carefully evaluated by the Court in reaching its determination.

Background
While there are significant issues of material fact in dispute between the parties the background factual matrix against which the dispute arose is not in dispute and can be summarised as follows: -

The Complainant was born on 8^thSeptember 1945. He was formally a director and shareholder of Lett and Company Limited and Lett Group Limited. These companies operated a family business engaged in fish processing and distribution. The Complainant’s co-directors were his two brothers. In or about 1988 or 1989 Lett Group Limited acquired the shareholding in the Respondent. It appears that the Complainant became a director of the Respondent and continued in that capacity until 1998, at which time he resigned so as to facilitate a restructuring of the business.

In or about April 2007 the Respondent was acquired by an entity known as the Navid Group. The consideration for the acquisition was that the Navid Group took on the liabilities of the Respondent and procured the release of the Complainant and members of his family from personal guarantees against the bank borrowings of the Respondent.

As a condition of the acquisition the Respondent undertook to employ the Complainant as a fish buyer and engineering consultant. On foot of that agreement the Complainant was employed by the Respondent in 2007 on a contract of service for a period of two years. On the expiry of that fixed term contract the Complainant continued in the employment of the Respondent although his fixed-term contract was not formally renewed at that time.

On or about 1^stMarch 2010, the Respondent furnished the Complainant with a draft of a further fixed-term contract which was expressed to commence on 30^thMarch 2009 and to run for a period of 18 months from that date. The Complainant refused to sign this contract. He nonetheless continued in the Respondent’s employment

Neither the contract entered into in 2007 nor the draft contract proffered to the Complainant in 2010 contained an express term stipulating a retirement age. However, the Respondent had produced a staff handbook in which normal retirement age for all staff was expressly stated to be 65.

The Respondent operated a pension scheme the rules of which stipulated that a pension can be paid to a member at any time between the ages of 60 and 75. The Complainant was a trustee of this scheme.

By letter dated 21^stFebruary 2011 the Managing Director of the Respondent wrote to the Complainant informing him that in the course of restructuring the business his position had been identified as superfluous to its continuing requirements. He was informed that a decision would shortly be made as to the viability of his position. In this letter the Managing Director of the Respondent also referred to the Complainant’s retirement date as being 7^thSeptember 2011. By the same letter the Complainant was advised that with effect from 28^thFebruary 2011 he would be reduced to a three day week and that this would continue until his retirement date. The Complainant’s employment was terminated with effect from 28^thFebruary 2011.

At the time his employment terminated the Complainant was 66 years of age.

Position of the Parties

The Complainant
The Complainant contends that he was not contractually required to retire at any particular age. He denies that the Respondent ever introduced a compulsory retirement age or that any compulsory retirement age applied to his employment. The Complainant further contends that other named employees worked beyond the age at which his employment was terminated.

The Complainant further relies on Directive 2000/78/EC Establishing a General Framework for Equal Treatment in Employment and Education (hereafter the Directive) in contending that the use of age as a criterion for less favourable treatment in employment constitutes unlawful discrimination. He submitted that national law, and in particular the Act, must be interpreted and applied in harmony with the Directive.

The Respondent
The Respondent contends that the Complainant knew, or ought to have known, that his retirement age was fixed at 65. His retirement was delayed until the end of the year in which he turned 65 because of a view taken by the Respondent as to what was meant by the stipulation in the company handbook.

The Respondent contends that the stipulation as to retirement contained in the handbook was part of the Complainant’s conditions of employment and was, in any event, saved by s.34(4) of the Act, which provides: -

• “Without prejudice to subsection (3), it shall not constitute discrimination on the age ground to fix different ages for the retirement (whether voluntarily or compulsorily) of employees or any class or description of employees.”

The Respondent submitted, in reliance on authority, that s.34 (4) of the Act is consistent with the requirements of the Directive.

The Respondent further contends that a retirement age of 65, or 66, has been applied consistently to other employees. In support of that contention, details were provided to the Court showing the dates of birth and retirement dates for all employees whose employment, according to the Respondent, came to an end by retirement since 2006, as follows: -

Employee	Date of Birth	Termination Date	Age
A	20/08/47	19/01/10	62yrs, 151 days
B	13/08/47	09/03/12	64yrs, 360 days
C	27/06/46	22/06/12	65yrs, 360 days
D	28/02/50	29/06/12	62yrs, 120 days
E	18/08/48	30/11/13	65yrs. 103 days
F	07/08/48	06/02/14	65yrs, 188 days
G	26/02/49	20/02/15	65yrs, 361 days

Note: The employees referred to are named in information furnished by the Respondent and have been anonymised by the Court

Without prejudice to its contention that the Complainant had actual or constructive knowledge of the requirement that he retire between the ages of 65 and 66, Counsel for the Respondent submitted that the validity of a retirement age is not dependent upon the employee to which it applies having knowledge thereof.

Evidence
Oral sworn evidence was given by the Complainant, Mr Michael Jacob, who was Chairman of Lett Group Limited and the Respondent between 1990 and 2014, and Mr Jim Lett, who was Chief Executive of the Respondent up to 2007. Mr Aodh O’Domhnaill, who is Chief Executive of the Respondent, gave evidence on behalf of the Respondent.

The salient points of the evidence adduced are as follows: -

The Complainant told the Court in evidence that he had never known of the existence of a retirement age in the company. He had been a director of the Respondent up to 1998 but thereafter, while not formally a member of the Board of the Respondent, he attended Board meetings and received copies of all Board papers.

He was employed by the Respondent as a fish buyer and consultant in engineering in 2007 following the restructuring of the company. Prior to that date, he was employed in a similar capacity by Lett and Company limited. The Complainant’s initial employment with the Respondent was on a fixed-term contract for two years. On the expiry of this contract it was ‘rolled over’ and he continued in the employment of the Respondent.

It was the Complainant’s evidence that in 2007 he was asked to remain on by Mr Aodh O’Domhnaill although it was provided for in the Heads of Agreement leading to the restructuring that he would be employed by the Respondent.

In March 2010 the Complainant was proffered a draft contract of employment which was expressed to run from 30^thMarch 2009 (the date on which his prior contract expired) for a period of 18 months. He refused to sign that document as there were a number of terms with which he...