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Latest in Employment Law>Case Law>An Post v Wade and Monaghan [2012]
An Post v Wade and Monaghan [2012]
Published on: 02/11/2012
Issues Covered: Redundancy Discrimination
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Background

The basic facts were not in dispute in this case. The claimants were two fixed-term employees employed from October 2008 to September 2011 as temporary cover for permanent employees on short term absence. Due to reorganisation of the respondent’s business, both were dismissed on grounds of redundancy and paid statutory redundancy lump sum when their final fixed-term contract came to an end. There was no dispute that a genuine redundancy situation existed. However, the claimants argued that as fixed term employees, they were treated less favourably than two permanent colleagues whose employment also ended in circumstances of redundancy but who had been able to avail of An Post’s Voluntary Severance/Voluntary Early Retirement (VS/VER) schemes. 

In summary, the terms of these schemes allowed for eight weeks pay per year of service for an employee made redundant who has between one and five years service, subject to a minimum payment of 20 weeks and a maximum payment of 40 weeks. The trade union on behalf of the claimants had sought payment under this scheme but this was refused. In a subsequent claim, a Rights Commissioner (RC) found in the claimant’s favour and directed that the terms of the scheme should apply to them. 

An Post appealed this finding to the Labour Court. In effect, its principal argument was that if the Court found that there was a basic (or prima facie) case of discrimination, there was an objective justification for such less favourable treatment. For this purpose, it argued that the VS/VER scheme was introduced to act an incentive for permanent staff to opt for redundancy in a situation where staff numbers may need to be cut. Such an incentive was required for permanent staff as they have security of tenure in their jobs until retirement and might otherwise not be inclined to do so. Fixed-term employees on the other hand because of the temporary nature of their employment did not need to be incentivised and their redundancies were compulsory as opposed to the voluntary redundancy of permanent employees availing of the scheme. 

The Court first considered whether redundancy constitutes pay so as to come within the terms of Section 6 prohibiting less favourable treatment of fixed-term employees in relation to their conditions of employment. Having examined existing case law, in particular the recent decision of the High Court in University College v Bushin [2012] IEHC, which followed a number of other cases on the question, it decided that it did. 

On the question of objective justification, it noted that Section 7 of the Act in turn provides that that a ground put forward by an employer to justify less favourable treatment shall not be regarded as an objective ground unless it is based on considerations other than the status of the employee concerned as a fixed-term employee. It further noted that the essence of An Post’s justification in this case was that because the comparators were permanent employees, it considered it necessary to provide a financial incentive for them to leave. 

On the other hand, because the claimants were fixed-term employees, it considered it unnecessary to pay them anything beyond statutory entitlements. Thus, the Court reasoned that the consideration relied upon by An Post to justify less favourable treatment in this case could not be dissociated from the claimants’ status as fixed-term employees. As a result, it could not be relied upon as an objective ground for the purpose of justifying less favourable treatment. An Post’s appeal was therefore dismissed and the RC’s decision affirmed.

http://www.labourcourt.ie/labour/labcourtweb.nsf/cb8265a3e1c5c3f180256a01005bb359/80256a770034a2ab80257a71004fd91f?OpenDocument 

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Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 02/11/2012
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