In this case both volunteer complainants were found to be employees.  Based on the facts that (a) the complainants were paid an amount for the time they were instructing in addition to expenses and (b) tax and USC were deducted, the Equality Officer was satisfied that a contractual relationship existed between the parties. The Equality Officer reviewed the relevant provisions of the Employment Equality Acts, and the Henry Denny case [1998 1 IR 34] and found that in the circumstances of the case the two complainants had a contract of employment for the purposes of the Acts.  On that basis he found that he had jurisdiction to investigate the complaints.

Once they were found to be employees the Equality Officer addressed the matter of their enforced retirement.  There was no dispute that age was the reason their employment was ended.  The Equality Officer was critical of the Office Notice that stated that no member of the organisation could be enrolled if over 65, with a maximum increase to the age of 70. 

One of the complainant’s had no knowledge of the Office Notice which, it appears, was never reviewed meaning it was neither reviewed following the enactment of the equality legislation nor in light of recent well known case law. 

The Equality Officer stated: “The respondent, even in response to direct questions, did not provide any objective justification for retiring the complainants, either in terms of the requirements of their role as instructors, or on policy grounds”. 

He continued to address recent decisions, the concept of objective justification and stated that where a justification test related to the demands of the role it cannot be directed at the circumstances of an individual complainant.  Finally he found that the respondent never formally identified nor adduced any evidence on the matter of objective justification and in its absence he was satisfied that the complainants’ retirement amounted to discriminatory dismissal on the ground of age. 

He awarded the complainants €1200 each, which reflected slightly less than two years’ service.

Full decision:

http://www.equalitytribunal.ie/Database-of-Decisions/2013/Employment-Equality-Decisions/DEC-E2013-027-Full-Case-Report.html 

Why is this case important?

• How is the work of volunteers handled in your organisation?  Are they paid in any way?  If paid a flat fee for expenses that are unvouched, could any excess be considered remuneration? 
• Consider the processes relevant to volunteers in light of the definition of ‘employee’ and ‘contract of employment ‘in section 2 of the Acts and section 2(3)(d).
• Do you have a plan in place which records your considerations of objective justification where necessary?
• Are your managers aware of the potential exposures in respect of forced retirements?
• Is your objective justification at individual, organisational or governmental level and which is appropriate in each case? (It remains to be seen how the very recent Labour Court decision in Hospira will impact on these issues.)