Introduction
In this case, the complainant, a cleaner, alleged that she was effectively dismissed following a transfer of the business on 02 January 2020, when the respondent, her new employers, refused to engage her services because she was 66 years of age (A Cleaner -v- A Cleaning Company (Adjudication Reference: ADJ-00026820)).
Her ‘new’ employers held that the “normal” retirement age was 65 and that their insurance policy also stipulated this requirement, as a provision of cover.
Employment Equality Acts – Proving Discrimination
Section 85 A (1) of the Employment Equality Acts, 1998 – 2007 states:
“Where in any proceedings facts are established by or on behalf of a claimant from which it may be presumed that there has been discrimination in relation to him or her, it is for the employer to prove the contrary.”
This means that an employee is required to establish, in the first instance, primary facts upon which the claim of discrimination is grounded and from which it may be presumed that there has been discrimination. If they succeeds in doing so, then, and only then, the burden of proof passes to the employer to prove the contrary.
Based on the above, when evaluating the evidence in this case, the Workplace Relations Commission (WRC) had to decide whether the employee had established a prima facie case pursuant to Section 85 (a) (1) of the Employment Equality Acts 1998 to 2008.
Inferring Age Discrimination
The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the employer. The inference of discrimination must have a factual/credible basis and cannot be based on mere speculation or assertions which are unsupported by evidence.
The Labour Court elaborated on the interpretation of section 85 (a) (1) in Melbury v. Valpeters (EDA/ 0917) where it stated that this section: “places the burden of establishing the primary facts fairly and squarely on the employee and the language of this provision admits of no exceptions to that evidential rule”.
Having carefully considered all of the evidence adduced, the WRC found that the employee had sufficiently established a prima facie case that an act of discrimination took place in relation to the termination of her employment with the employer by means of compulsory retirement at 65. Therefore, the burden of proof switched to the employer to refute the employee’s complaint in this regard.
Defence to Claim of Age Discrimination
The employer’s rebuttal of the employee’s claim of discrimination on the age ground rested on two specific premises.
Firstly, the employer contended that a “normal retirement age” of 65 had been established in the company and applied to the employee and secondly asserted that their insurance policy did not allow the company to engage workers who are over 65.
While the WRC noted the employer’s claim that they had established a normal retirement age of 65, it was satisfied that there was no explicit contractual arrangement between the employer and the employee with regard to an established retirement date given that the contract she had with her previous employer, the terms of which the employer could not alter unilaterally, did not stipulate a retirement age.
Retirement Age and Contract of Employment
In Richard Lett vs Earagail Eisc Teoranta (EDA 1513), the Labour Court found that: “an employer’s employment policy in relation to retirement can take effect as a contractual condition of employment which is, prima facie, protected by s. 34 (4) of the Act. However, in the Court’s view that could only arise where the policy is promulgated in such a manner that the employees to whom it applies either knew, or ought to have known, of its existence.”
Having carefully reviewed all of the evidence adduced and where no express term existed in the employee’s contract of employment requiring her to retire at an appropriately established retirement date, the WRC could only conclude that the employee had no clear, actual knowledge as to the existence of such a retirement age.
Conclusion
While the employer also asserted that its insurance policy precluded the engagement of workers who were over 65 years of age, a copy of this policy was not presented in evidence and there was no suggestion that the company had queried this with their insurer or sought alternative cover elsewhere.
Consequently, taking all of the above into consideration, the WRC was satisfied that the employee was dismissed because of her age and that the employer discriminated against her.
