Analysis: Age discrimination payout against nursing home a warning for employers
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Richard Grogan and Natasha Hand
Employment lawyers Richard Grogan and Natasha Hand consider a recent high-profile case in the Workplace Relations Commission (WRC) concerning age discrimination.
The issue of age discrimination issue arose in case ADJ-00027325, which has obtained a reasonable amount of publicity, where the employee obtained the maximum compensation of two years’ salary.
In brief, the facts are the employer had a retirement age of 65 as per the company retirement policy. The employee requested a further one-year contract. The employee was granted the extension, yet no objective justification was provided as per the relevant legislation.
The employee, on nearing the end of the one-year extension, sought to work on longer. The employee sought to engage with her employer on this, however did not receive a response to her request. The employee raised the issue again and was informed that her last day would be in and around the end date of the one-year extension as previously granted.
In this case, there was a significant legal submission put in place by the solicitors for the claimant. We examine now the legal submissions which were submitted in support of the employee’s claim.
The legal submission included the case of Madarassy v Nomura International plc [2007] IRLR 246 where the Court of Appeal for England and Wales considered how a court or tribunal should approach the question posed in relation to the burden of proof. In that case, it was held in employment discrimination cases the law requires that a tribunal must first examine the evidence to determine whether the action complained of by the employee would, in the absence of an adequate explanation, be an unlawful discrimination. If so, the burden of proof shifts to the employer.
It was pointed out that the Labour Court in Director of Public Prosecutions v Robert Sheehan [EDA 0416] found that: “In order to shift the probative burden it is not necessary for the complainant to adduce direct evidence of discrimination on either the gender or the age ground.”
As was pointed out by Neill L J in King v The Great Britain-China Centre [1992] ICR 516, such evidence would seldom be available since those who discriminate rarely do so overtly and the outcome of the case will usually depend on what inferences it is proper to draw from the primary facts found by the court.
It was pointed out that this approach was explained in the case of Ntoko v Citibank [2004] ELR 116, where the Labour Court stated:
“This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant’s power of procurement. Hence, the normal rules of evidence must be adapted in such case so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging the complainants to prove something which is beyond their reach and which may only be in the respondent’s capacity to prove.”
It was pointed out that in the case of Donnellan v Minister for Justice, Equality and Law Reform [2008] IEHC 467, McKechnie J stated: “It is clear that the imposition of mandatory retirement age is discriminatory, per se, under the Directive, in that it places one person at a disadvantage to another, who would otherwise be in the same situation on the ground of age alone.”
In this case, reliance was also placed on the Industrial Relations Act 1990 (Code of Practice on Longer Working) (Declaration) Order 2017 S.I. No. 600/2017 which provides:
Retirement ages in the private sector are generally set out by means of;
- An expressed term in the employees’ Contract of employment,
- An implied term in the employees Contract of employment,
- Relevant policies for example a staff handbook and,
- Custom and Practice generally arising from the pension date set out in the relevant occupational pension scheme.
It was pointed out that the objective justification of the Code provides that, essentially, the law is now that compulsory retirement ages set by employers must be capable of objective justification both by the existence of a legitimate aim and evidence that the means of achieving that aim by the employer may include intergenerational fairness.
The case of McGrath v Focus Ireland ADJ/00018823 was referred to, where different treatment of employees according to their age may be permitted so long as it is objectively and reasonably justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
This is a very extensive decision of the Adjudication Officer. The Adjudication Officer, in awarding compensation, had regard to the requirement pursuant to Article 17 of the Framework Directive that the sanction be “effective, dissuasive and proportionate”.
The Adjudication Officer went further and set out her rationale in this regard. This is important in that it highlights that it is within the Adjudication Officer’s remit to use this power in setting compensation.
This is a very important decision in the area of employment law and in particular age discrimination.
- Richard Grogan is a partner and Natasha Hand is an associate at Richard Grogan & Associates Solicitors.
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