About this case:

• Citation:
  ADJ-00011207
• Judgment:
  External link
• Court:
  Workplace Relations Commission

The Workplace Relations Commission found his complaint of age discrimination was well-founded and awarded him €2,500 in compensation.

Background to complaint

In May 2017, Ability West advertised a vacancy for a minibus driver. Ability west provides residential and respite care services to intellectually disabled children and adults. The position was a permanent, part-time post involving 16 hours of work, two days per week.   

Mr James Maloney, who was already working as a school bus driver for another employer, applied for the position, submitting his CV, as well as his driver’s licence, driver’s card, and driver’s qualification card – all of which stated his date of birth. Mr Maloney said that apart from a reference to Ability West being “committed to equal employment opportunity regardless of… age”, the issue of age was not mentioned anywhere else in the job advertisement. 

Mr Maloney attended an interview in June 2017, and later that month he was advised that he had been successful and was offered the job of permanent part-time minibus driver. Mr Maloney accepted the job offer, and thereafter attended training and a medical assessment, which confirmed that he was “fine to drive” and “physically and mentally fit and suitable for employment” in the position being offered.

In July 2017, after telling his then current employer that he had been offered a new job, Mr Maloney received a telephone call from Ability West’s Assistant Director of HR, in which he was asked to confirm his date of birth. At this point, Mr Maloney was informed that Ability West had just realised from his Garda Vetting form that he was over 65, and that they could no longer give him the job due to their policy of a mandatory retirement age of 65. Mr Maloney said he was completely shocked and embarrassed, that his date of birth had been stated on at least five documents during the recruitment process, and there was no mention of an age limit in the advert or his Contract of Employment.

Correspondence continued between the parties, and Mr Maloney was eventually offered a one-year, fixed term contract, with the possibility of another year. Mr Maloney replied stating that Ability West had already offered him a position which he had accepted. He said he would stay in his current employment unless he was provided with the permanent, part-time contract that he had already accepted. Mr Maloney submitted that throughout the month of August, he was unsure of whether his employer would take him back, causing him stress.

Age discrimination

In October 2017, Mr Maloney submitted a claim to the Workplace Relations Commission complaining of discrimination on the basis of age, contrary to the Employment Equality Act 1998-2015.

Adjudication Officer Ray Flaherty was satisfied that Mr Maloney had clearly established a prima facie case that he was potentially subjected to an act of discrimination based on his age. As such, the burden of proof passed to Ability West to defend the claim. 

Firstly, Adjudication Officer Flaherty said it was unreasonable for Ability West to apply health and safety constraints in relation to bus drivers, when this is clearly not being applied across other groups and categories of staff. While accepting that the bus drivers might have to deal with challenging situations relating to the behaviour of their passengers, Adjudication Officer Flaherty said he was not provided with any evidence to suggest that a driver’s ability to cope in such situations could be impacted by age.

Adjudication Officer Flaherty said it was clear that Mr Maloney was “a competent and experienced driver, whose CV was such that Ability West considered him suitable for the position on offer”. Adjudication Officer Flaherty also noted that Mr Maloney was employed as a school bus driver when he applied, and although potential challenges in this role might be of a different level or frequency, Adjudication Officer Flaherty was of the view that the positions were analogous.

Adjudication Officer Flaherty was not satisfied that Ability West reasonably demonstrated that health and safety represented an objective justification for the imposition of a mandatory retirement age of 65 in this case.

Adjudication Officer Flaherty also considered the offer of a one-year fixed term contract as an alternative to the permanent, part-time contract which was withdrawn by Ability West. Adjudication Officer Flaherty said he was “strongly of the view that this offer was made as a result of the Complainant’s objection to the withdrawal of the initial job offer. In this regard, I believe that such offer would not have been made had the Complainant accepted the situation without protest”.

Adjudication Officer Flaherty was satisfied that the offer of a fixed term contract was made after the act of discrimination took place, and in all the circumstances, it could not be considered to negate the discrimination. Adjudication Officer Flaherty did however believe this was relevant to the calculation of appropriate compensation.

Concluding that Mr Maloney’s complaint that he was discriminated against by Ability West on the grounds of age was well-founded, Adjudication Officer Flaherty made an award of €2,500 in his favour, in compensation for Ability West’s breach of Section 8 (1) of the Employment Equality Act 1998-2015.

• by Seosamh Gráinséir for Irish Legal News