1. DEC-E2015-138 looks at compulsory retirement age and finds that pension notifications from 1999 were the most recent act of discrimination rather than the more recent retirement letters. It also includes a refusal of permission to proceed with a claim before the EAT under section 101(2)(b) in circumstances where no discriminatory dismissal complaint appears to have been before the Equality Officer.

2. EDA163 addresses sexual harassment and notably, it finds that the respondent cannot avail of the defence primarily because the line manager did not recognise the complaints or consider them serious. Therefore line managers’ knowledge and training is now considered a reasonably practicable step to be undertaken by an employer in order to avail of the defence in section 14A. The Court also found that the subsequent investigation was irrelevant as an antecedent measure. The state of flux around the amendments of s101 during 2015 could present opportunity for creative arguments around dual claims lodged after 1 October 2015.

1. DEC-E2015-138 Goss v Ryanair

Issues: Age Discrimination, compulsory retirement, refusal in accordance with 101(s)(b)

This case relates to a pilot employed by the respondent who, on approaching his sixtieth birthday was informed, by letter from the respondent, that he would be retiring on reaching that age. The respondent asserted the complainant was sent an annual pension benefit statement from 1999 which informed him that his retirement age was 60.

Also in 1999, the Irish Aviation Authority issued a new policy increasing the maximum age for licensed pilots to 65. The Equality Officer found that the date of the “original occurrence” was 1999 when the complainant first received the pension notification, the more recent letters did not amount to a new occurrence and on that basis the claim was statute barred.

The wording of the retirement correspondence is included in the Decision but the wording of the pension benefit notice is not although it would appear pivotal. As always, the Equality Officer is likely to have had this information and appears to have concluded that the pension notice, (a pension related document and not a HR document) was sufficiently specific as to include an indication that the respondent required the complainant to retire at 60 as distinct from being in a position to draw down a pension at 60.

This case was further complicated in that the complainant was dismissed for gross misconduct two months in advance of his expected retirement date. The Equality Officer considers previous cases and states: "In all of the above authorities the 'act of discrimination' was the retirement itself and not the notice of the pending retirement” and concludes that the ‘act of discrimination’, i.e. retirement, could never have occurred as the complainant was dismissed for gross misconduct.

However, as noted above the complaint was found to be statute barred as distinct from no discrimination having occurred. If it is being suggested that in respect of retirement issues, the only act of discrimination could be the retirement itself, this appears to neglect cases where, for example, a person is issued with a letter relating to compulsory retirement at 60 while colleagues in other roles are not issued with such letters.

In such cases, it could be asserted that the letters themselves were discriminatory i.e. less favourable treatment. Where this amounted to a prima facie case it would be for rebuttal by the respondent.

The second claim lodged by the complainant relates, as far as can be discerned, to the payment he received on dismissal from the employer who paid him the equivalent of the two months pay, the difference between his dismissal and retirement date, rather than have him disadvantaged in respect of his retirement.

He argued he should have been paid the amount to his 65th birthday and that to fail to do so was discriminatory. The Equality Officer goes on to consider that following his dismissal the complainant was no longer an employee although no discriminatory act following the dismissal appears to have been raised by the complainant. Even so, the complainant was found to have no locus standi on the basis he was no longer an employee following his dismissal.

An alternate view might be that the complainant was arguing that the payment, at the point of his dismissal, should have been larger to take account of the 5 years from his 60th to his 65th birthday. The Equality Officer states that he argued his “actual loss would amount to five years salary”. It may be that the allegation of discrimination relates directly to the amount of his gratuity payment at the point of dismissal and not to any event when he was no longer an employee.

In circumstances where employees are dismissed for gross misconduct gratuity payments are not normally paid. Therefore, it could be argued that the complainant in this case was in fact treated more favourably than others in similar circumstances and the concept of less favourable treatment does not arise meaning a prima facie case could not be established. The Decision notes at this point that both claims have failed.

Finally, the Equality Officer considered section 101(2) in a situation where proceedings for Unfair Dismissal (UD) were adjourned in the EAT. This section states, in circumstances where the person was dismissed before referring the equality case, they cannot seek redress under UD unless directed by the Director. The Act is silent on what the Director might consider relevant to such a direction.

To date, this provision has generally been considered as relevant only when dismissal claims have been lodged under both the equality and unfair dismissal legislation. There is no reference to a discriminatory dismissal claim in this Decision. The ordinary meaning of the words in the provision suggests that an Equality Officer can base a Direction on any claim lodged under section 77(1) rather than a discriminatory dismissal claim specifically.

In this case it appears that the existence of a claim of discriminatory treatment, rather than a discriminatory dismissal claim, has resulted in the complainant not having had the opportunity for a consideration of his actual dismissal at first instance. However the Equality Officer proceeds to consider several issues as relevant to her decision not to ‘direct otherwise’ in accordance with the section including whether the employer was legally obliged to retain the complainant until the age of 65 and section 34(4).

She concludes “The question for this Tribunal is whether or not there is an obligation to interpret Section 34(4) in a manner consistent with Article 6 of the Directive?” She considers horizontal direct effect and ultimately finds that the respondent was entitled to set a mandatory retirement age of 60 without the need to objectively justify that decision.

This would appear to follow the LC decision in Hospira Finally it is stated that the Act remains silent in relation to the requirements as set out in Article 6. This has since been addressed by a recent amendment to section 101. Indeed, note should be taken of the many amendments to section 101 in various pieces of legislation during 2015.

The general situation appears to be that legacy cases (those lodged before 1 October 2015) and which have both discriminatory and unfair dismissals included will be handled by section 101(2) as in this case while those lodged subsequent to that date will be handled by the various versions of section 101(4) as it was amended A temporary situation exists, therefore, permitting creative arguments in respect of dual claims lodged during the period of statutory change to section 101.

Why is this case of interest?

• Section 101(2) appears to have presented a second opportunity to address the retirement issue in circumstances where the claims were already decided.
• Was section 101(2) relevant in a situation where the complainant had not lodged a discriminatory dismissal claim?
• Section 34 has now been amended to require objective justification by the Equality (Misc. Provisions) Act 2015.
• Can pension notices amount to notices of mandatory retirement? Without knowledge of the wording of the notices in this case it is difficult to assess the broader application of this finding.
  
  

2. EDA163, A Store and a Worker

Issues: Sexual Harassment, time limits, manager’s knowledge, antecedent measures, subsequent investigation irrelevant to defence

The complainant was employed by a major retailer as a general operative/sales assistant who worked exclusively at night stacking shelves. Two male workers performed similar duties in an adjacent aisle. It is the behaviour of these male workers, one in particular, that is the subject of the complaint.

The complainant raised her difficulties with her manager on occasion but eventually she reported her difficulties directly to HR. The manager had a diary in which he recorded serious incidents but none of the incidents complained of by the complainant were recorded in it. The respondent raised the timeliness of some incidents as they took place outside the six months prior to the complaint to the Tribunal.

The Court decided to consider if the incidents were “sufficiently connected to any acts which occurred within the time limit so as to constitute a continuum” in line with EDA1124 Ann Hurley v Co. Cork VEC. It found that they were. In looking at the relevant law the Court quoted section 14A, the Framework Directive, the EU Commission Recommendation (92/131/EEC) and SI 208/2012. The Court concluded that the defence included in s14A(2)(a) was the only defence available to the respondent and quoted EDA0915, a 2009 case which stated, inter alia, “Moreover, management personnel should be trained to deal with incidents of harassment and to recognise its manifestations”.

The Court went on to conclude “the statutory definition of sexual harassment includes conduct that created an “offensive environment for the person”. It follows that, in the case of offending verbal conduct, the comments complained of need not necessarily be addressed to or directed at the victim.”

The Court took account of the complainant’s demeanour, the managers’ evidence, the hearsay evidence of the two individuals accused of the impugned behaviour who were not witnesses before the Court, and found that where conflict arose the complainant’s evidence was to be preferred.

Perhaps the most interesting aspect of this case is how the Court considered that any actions subsequent to the incidents complained of, including the respondent’s investigation, were not relevant to the questions the Court had to decide. In other words any investigation undertaken by the respondent was irrelevant in terms of the defence.

Prior to this, many thought that having preventive measures such as appropriate policies combined with appropriate actions on receipt of a complaint were what was necessary to secure the defence. The Court considered that “to avail of the statutory defence the focus must be on the adequacy of any antecedent measures taken by the respondent to prevent the type of conduct giving rise to these complaints”.

It took account of the policy being in English only, not the native language of the perpetrators, and that no evidence concerning their competency in reading English had been presented. However, in this case the Court also considered the actions and knowledge of the manager and found them wanting – “Nor is the Court satisfied that the import or importance of the policy was properly or adequately understood by the Complainant’s manager in the store”, responsible for its implementation.

The Court found that the respondent did not have adequate arrangements in place to ensure that the content of, and importance of adherence to, that policy was properly understood by the Managers who were responsible for its implementation. On that basis the Court found that the respondent did not take such steps as were reasonably practicable and therefore could not avail of the defence. The Equality Tribunal Decision was set aside and the complainant awarded €15,000.

Why is this case of interest?

• Have your managers undertaken appropriate awareness training? The failure of a manager to recognise and act on complaints has been the cause of the employer being unable to avail of the statutory defence in this case.
• Harassment need not be directed at the complainant personally.
• The assessment of the evidence is a useful case-study for investigators in your workplace.
• Preventative measures must be the focus of the defence.
• Have your employees indicated that they have read and understood the policy? The policy must be disseminated and in a language which is understood by staff .