This was a high-profile case that came before the WRC recently. Valerie Cox is a very high-profile journalist and broadcaster with RTE. She argued in this age discrimination claim before the WRC that RTE had discriminated against her on grounds of age by forcing her to retire at age 65.

Now, this case is an unusual case, in some ways, because Valerie Cox, in fact, had two contracts of employment with RTE running concurrently. She had a full-time contract of employment which commenced in 2004 until March 2016 on which date she retired on the grounds that RTE had a compulsory retirement age of 65. And for that full-time contract, she was paid an annual salary in the normal way.

She also had a separate casual or irregular contract of employment, which commenced in August 2003, for which she was paid a daily rate. In relation to that contract, the termination date was in dispute. The employer appeared ultimately before the WRC to argue that that contract terminated also in March 2016 on the same date that they terminated her full-time contract of employment, which is the date when she reached her 65th birthday.

Valerie Cox issued two claims to the WRC in February 2017. She issued a claim for age discrimination in respect of her compulsory retirement from her full-time employment. That claim ultimately failed on a preliminary point, that she hadn't issued the claim in time. Practitioners would be aware that in the WRC, all employment claims must be issued within six months of the date of the alleged occurrence or the breach by the employer or 12 months for reasonable cause.

Now, while Cox was in the 12-month time period, she was well inside six months' time period. Her employment terminated in March 2016. Her claim was issued in February 2017 and the WRC determined that there was no reasonable cause shown by Miss Cox for the failure to lodge her claim within the initial six-month time period.

So, the question of whether or not RTE had discriminated against her on grounds of age in respect of the termination of her full-time contract was never, in fact, challenged in full before the WRC because it failed at the first hurdle, which was that it was out of time. However, her second claim of age discrimination in respect to her casual and irregular contract of employment was deemed to be within time.

That claim was lodged before the WRC in March 2017. Now, obviously, if it had been accepted that contract had also terminated in March 2016 along with her full-time contract, which is what RTE appeared to argue before the WRC, then obviously, she would have also been out of time in effect of that claim and that claim would have failed.
However, the WRC in hearing the evidence determined that, in fact, it wasn't until December 2016 that Valerie Cox became aware that RTE were making the case that she was no longer going to be given any work under her casual contract of employment on the basis they had effectively compulsorily retired her in March 2016.

Miss Cox had a pre-retirement meeting with RTE in February 2016 that was accepted by both parties and that was in accordance with the RTE staff handbook, which provides for a pre-retirement meeting in advance of your compulsory retirement. Valerie Cox said in her evidence that she was told at that stage in February 2016 that while her full-time contract would terminate on her retirement in March 2016, a period of time would then have to elapse between her retirement and being placed back on the roster under her casual or irregular contract of employment, but in fact, that didn't happen. She wasn't placed on any roster. She said it was only in December of 2016 the then acting MD of RTE told her in fact that she would not be placed on the roster again on the basis she had gone beyond the compulsory retirement age as and from March 2016.

So, an interesting case because under her full-time contract of employment, Valerie Cox is a member of the RTE defined contribution pension scheme, which did provide for retirement at age 65. However, under her casual or irregular contract of employment, she was a member or she was entitled to join RTE's PRSA, so there wasn't a defined contribution pension scheme attached to the casual irregular contract. There was a different system established and effectively, RTE had entered into an arrangement with a PRSA provider to enable Miss Cox to participate in a PRSA. That made obviously the casual irregular contract different from her full-time contract.

In the WRC, the adjudicator who heard the case said they had examined in detail the staff manual of 2006 that dealt with the PRSA operated by RTE and what it said was that eight months before reaching his or her 65th birthday, a staff member in this category will be notified that he or she would be required to retire at age 65 if a decision accordingly has been made. So, effectively, the wording of the staff handbook was somewhat ambiguous about the compulsory retirement age.

In her evidence, Miss Cox had pointed to two other people working on the same programme to which that roster related who were over 65. Now, in fact, they were independent contractors as opposed to the employees of RTE, but again, she argued that it was acceptable for people to work beyond age 65.

RTE sought to objectively justify the retirement age, citing intergeneration of fairness, dignity, and respect in the workplace and ensuring the promotion of younger members, particularly in a broadcasting setting. This was rejected by the adjudication officer given the ambiguous wording around the PRSA and the staff handbook.

It's extremely important from an HR perspective to make sure that there is consistency and a definitiveness about your wording in your contracts and all of the supporting documentation around that, your pension scheme, your staff handbook, your policies and procedures.
http://www.workplacerelations.ie/en/Cases/2018/March/ADJ-00006972.html