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Recently the EU and Ireland as a result have recognised the new realities of modern life. People ae working longer and living longer. Older people are not just fit to shuffle off but have huge experience and productivity to offer in the workplace. A 68 year old book-keeper could have as much if not more to offer than a 25 year old doing the same job! So why treat people differently just because of their age?
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You must move quickly as there is a six-month time limit on taking a claim, and no one wants to see an unlawful employer get away with one.
Call us now on 1890 88 90 90 for a free no-obligation consultation or to arrange an appointment with us to review your case. Don’t put up with this type of treatment. Make sure your employer knows you won’t tolerate it. We’ll hold the megaphone, you make your voice heard.
Whether you are seeking general advice regarding discrimination at work when you are expecting a child or if you are concerned that your rights may have been infringed, it is important to take action quickly.
Section 8 of the Employment Equality Acts outlines the prohibition on discrimination in an employment setting. The Acts provide for nine discriminatory grounds, which include, the ground of age. Section 6(1) of the Employment Equality Acts, 1998 – 2008 (the “Acts”) provides that:
“…discrimination will be taken to have occurred where a person is treated less favourably than another person is, has been or would be treated in a comparable situation of the discriminatory grounds.”
In general, in order for a Claimant’s allegation of discrimination to be upheld under the Acts, one must show prima facie evidence of discrimination. Once a prima facie case is established, a presumption of discrimination arises and the burden of proof shifts to the employer to prove that discrimination did not take place. The Labour Court considered this evidential burden in Southern Health Board v Mitchell  E.L.R. 201 and concluded as follows:
“[T]he complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.”
In the case of Melbury Developments Ltd v. Valpeters EDA0917 the Labour Court held:
“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”
In a case, where an employee was dismissed solely as a result of his age for example where an Employer’s Company policy is for employees to retire upon reaching the age of 65 years of age the argument can be made that the Employer does not compulsorily retire anyone under the age of 65, thus the policy is discriminatory. Where no reason or consideration other than the employee’s age is considered as a reason for the dismissal, that dismissal will be discriminatory. Where a dismissal is on the basis of age, in circumstances where no other members of staff under the age of 65 were dismissed in a imilar way, that amounts to a prima facie case of less favourable treatment due to age. Thus a presumption of unlawful discrimination arises. It then falls to the Employer to rebut this presumption of unlawful discrimination by justifying any differences in treatment on some objective grounds.
Justification of differences of treatment on grounds of age
Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.
Such differences of treatment may include, among others:
(a)the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;
(b)the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment;
(c)the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.
Notwithstanding Article 2(2), Member States may provide that the fixing for occupational social security schemes of ages for admission or entitlement to retirement or invalidity benefits, including the fixing under those schemes of different ages for employees or groups or categories of employees, and the use, in the context of such schemes, of age criteria in actuarial calculations, does not constitute discrimination on the grounds of age, provided this does not result in discrimination on the grounds of sex.
Section 34 of the Employment Equality Act 1998, as amended by section 10 of the Equality (Miscellaneous Provisions Act) 2015 outlines that:
4) 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 if:
(a)it is objectively and reasonably justified by a legitimate aim, and
(b)the means of achieving that aim are appropriate and necessary
Notwithstanding the recent amendment introduced by section 10 of the 2015 Act, this amendment reflects the approach taken and jurisprudence developed by the Equality Tribunal over a number of years. This approach had been taken to ensure that the 1998 Act was compatible with EU law.
In the case of Nolan v. Quality Hotel Oranmore DEC-E2012-110 the Equality Officer criticised the Respondent’s failure to offer any objective justification for the mandatory retirement age. The Equality Officer had called on the Respondent to do so, both in writing and in person at the hearing and the Respondent failed to do so. It was held:
“When invited to give reasons as to why the respondent has a mandatory retirement age, they opted not to. Based on the totality of the evidence, I am satisfied that Ms Nolan has established a prima facie case of discriminatory dismissal on the grounds of age and Quality Hotel, Oranmore has failed to rebut it. For the avoidance of doubt, I am not saying that the respondent is not entitled to set a mandatory retirement age but that this requirement should be capable of being justified on objective and reasonable grounds.”
In the case of Furlong v. Applus Car Testing Service Ltd DEC-E2013-084 the Equality Tribunal found that there had been discrimination on the grounds of age where an employee was compulsorily retired. The Tribunal highlighted that the employer produced no evidence to support its assertion that the retirement could be objectively justified.
In the case of McPhillips v. ISS Facility Services DEC-E2013-042 the Equality Tribunal found that there had been discrimination on the grounds of age where an employee was told that he would be retired at the age of 65 and was then offered a one year fixed term contract up to the age of 66. The Equality Officer refused to accept that the employee had been validly placed on a fixed term contract and furthermore refused to accept that the mandatory retirement age applied.
In the case of R (on the application of the Incorporated Trustees of the National Council on Ageing) v Secretary of State for Business, Enterprise and Regulatory Reform  E.C.R. I-1569, the Court of Justice accepted that a mandatory retirement age may be legitimate where there were social policy objectives to be satisfied. The Court of Justice went on to note that such a mandatory retirement age may not be permitted for “purely individual reasons particular to the employer’s situation such as cost reduction or a boost to competiveness” Thus the justification for the difference in treatment must relate to a broad policy goal and not an individual reason particular to the employee current situation or the employee. This principal was echoed in O’Mahony v. Southwest Doctors on Call (trading as SouthDoc) , wherein the Equality Tribunal held that the compulsory retirement of the Complainant had been motivated by the aim of reducing headcount and not intergenerational fairness, as alleged by the Respondent, and same was not a legitimate aim for a difference in treatment on the basis of age.
In the present case, the Employee maintains that that the Respondent was not pursuing a legitimate aim in compulsorily retiring the Complainant. It is respectfully submitted that it is apparent from the correspondence between the Respondent and the Employee’s legal advisors that the Respondent was unhappy with the fact that the Employee was on sick leave and that he had refused to partake in the Respondent’s disciplinary proceedings until his return to health and the workplace. The Employee maintains that the decision to compulsorily retire the Employee, thereby subjecting him to discrimination on the grounds of age, was taken by the Respondent in order to resolve a dispute that the Respondent was having with the Employee and was not due to any predetermined and cogently thought out legitimate aim which objectively and reasonably justified the discrimination on grounds of age. It is submitted that, as such, the Respondent cannot satisfy the two-part test as set out in section 10 of the 2015 Act and cannot, as such, justify its difference in treatment towards the Employee in the form of its compulsory retirement policy.
The second requirement in justifying a difference in treatment on the basis of an employee’s age is to demonstrate that the means taken by an employer in achieving the alleged aim are appropriate and necessary. The Employee maintains that same amounts to demonstrating that the means taken to achieve the alleged aim are proportionate.
In the case of Donnellan v. Minister for Justice, Equality and Law Reform and others  IEHC 467 the High Court emphasised that:
“Any discrimination with regards to age must, as put by that Directive, serve a legitimate aim or purpose, and the means taken to achieve that purpose must be appropriate and should go no further than is necessary, i.e. they should be proportionate.”
The Court of Justice has recognised the need to balance an alleged legitimate aim with the hardship imposed on the worker. In the case of Gerhard Fuchs (C-159/10) and Peter Köhler (C-160/10) v Land Hessen the Court observed:
“In that regard, the Court has accepted that a measure that allows for the compulsory retirement of workers when they reach the age of 65 can meet the aim of encouraging recruitment and be regarded as not unduly prejudicing the legitimate claims of the workers concerned, if those workers are entitled to a pension the level of which cannot be regarded as unreasonable (see, to that effect, Palacios de la Villa , paragraph 73). The Court has also held, in regard to a measure requiring the automatic termination of employment contracts at that age, in a sector in which, according to the national court, that measure was liable to cause significant financial hardship to the worker concerned, that that measure did not go beyond what was necessary to achieve the desired aims, in particular the encouragement of recruitment. The Court took into account the fact that the worker was eligible for payment of a pension while at the same time remaining in the labour market and enjoying protection from discrimination on grounds of age (see, to that effect, Rosenbladt , paragraphs 73 to 76).”
The means of achieving any alleged legitimate must be appropriate, necessary and proportionate in order to achieve that aim; that is to say, that the means used must have infringed the employee’s interest to the smallest degree necessary in order to achieve the alleged aims. For example if an employee was compulsorily retired at the age of 65, but was not entitled to a pension until the age of 66. The arbitrary selection of the age of 65 for compulsory retirement unduly imposed a significant hardship on the Employee in that he could not access a pension for a period of one year following his dismissal.
The Court of Justice of the European Union has considered the standard of proof placed on a Respondent when attempting to show that a difference in treatment is objectively justified in the pursuit of a legitimate aim. The Court in the case of R (on the application of the Incorporated Trustees of the National Council on Ageing) v Secretary of State for Business, Enterprise and Regulatory Reform C-388/07 stated:
However, it is important to note that the latter provision is addressed to the Member States and imposes on them, notwithstanding their broad discretion in matters of social policy, the burden of establishing to a high standard of proof the legitimacy of the aim pursued.
The case of Furlong v. Applus Car Testing Service Ltd DEC-E2013-084, discussed above, provides authority for the proposition that an Employer must produce detailed evidence to support any assertion that a difference in treatment on the basis of age in the form of a compulsory retirement policy has a legitimate aim. Similarly, in the O’Mahony decision discussed above, the Equality Tribunal rejected the Employer’s assertion that a compulsory retirement policy was justified by the legitimate aim of health and safety where they failed to produce any actual evidence that retiring employees at the age of 65 improved health and safety. A mere assertion to that affect is insufficient to discharge the burden of proof placed on an Employer to avail of the justification for a difference in treatment and discharge the presumption of unlawful discrimination.
Remember if you are considering bringing a claim, there is a strict 6-month time limit for referring complaints to the Workplace Relations Commission.
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