The Equality Tribunal (which, since 1st Jan, has its functions under the control of the DJEI) has recently published several upheld cases on employment equality. The first and second cases concern retirement. In the first case, the employer failed to justify the application of a retirement age. In the second case, a notice of retirement was withdrawn but the complainant still suffered some loss as a result of the non-applicability of a disability and death policy for a period of time after her 65th birthday. The third case is a straightforward one of dismissal on return from maternity leave.


EMPLOYMENT EQUALITY DECISIONS UPHELD IN WHOLE OR IN PART:

1. DEC-E2012-135: Elizabethe Sweeny -v- Aer Lingus Teo

Issues: Employment Equality Acts - Discriminatory Treatment - Age - Section 34(4) - legitimate aim or purpose
Award: €5,000

This is another retirement age case, which have been increasing in occurrence of late. The complainant had been employed since the 1960s. She had also been a trustee of the employer’s pension fund. She was dismissed at the age of 65. The Tribunal accepted that, although her contract of employment was silent on retirement age, there was an implied term that the retirement age should be 65 for non-flying staff. Most non-flying staff retired before this retirement age. Only one had been kept on past 65 in the previous 10 years, for specific purposes involving the handover of duties. Through her role as a pension trustee, she was aware of the retirement policy of the employer.

The tribunal concluded that this was a case of direct age discrimination and considered the well-known arguments around Section 34(4) of the Acts. It decided that a retirement age still required justification, in line with the requirements of the Framework Directive 2000. In this case, the only justification provided by the employer was that “it would be perverse that the independent trustee of the pension scheme could pay pension benefits from a normal retirement date (under the scheme) while an employee continued to draw his or her salary from the respondent.”

However the Tribunal drew on EU Court of Justice cases, Case 262/84 Vera Mia Beets-Proper v Van Lanschot Bankiers NV [1986] ECR 773 and Case 152/84 Marshall v. Southampton and South West Hampshire Area Health Authority [1986] ECR 723) and Irish cases, Howell v JJ. McCreery (Case No. UDA654/2007) January 3, 2008, Donegal County Council v Porter (1993) E.L.R 101 and Bannon v Two Way International Freight Services Limited (Case No. UD127/2003). It concluded that “a pension entitlement does not necessitate retirement”.

Therefore the complainant succeeded in her claim. In light of the fact that she had received her pension since being dismissed, she was awarded €5,000 in compensation for the effects of the discrimination suffered.

Here again, the Tribunal is imposing strict conditions on the establishment of justification for the application of a retirement age. It appears necessary to conduct a specific exercise of determining a retirement age and to have a paper trail justifying that retirement age.
http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-135-Full-Case-Report.html


2. DEC-E2012-136: Patricia Stapleton -v- Genworth Financial UK Holdings Limited

Issues: Employment Equality Acts - Sections 6, 29 & 74 - Age - Access to Employment - Conditions of Employment - Equal Pay – Victimisation
Award: €5,000 for discriminatory treatment and €523.93 in equal pay remuneration

This is another retirement case. Here, the employer did not realise that the complainant had reached 65 (in October 2007) until September 2008.It issued a notice of retirement but it was withdrawn. However, the complainant was informed that she had not been covered by their life and long-term disability policy since her 65th birthday. For the period October 2008 to December 2009 she was paid a compensatory amount of €43.66 per month which was the respondent's assessment of the cost of the cover. Her cover was reinstated in December 2009. The Tribunal concluded that the complainant was not covered under the life and long-time disability plan from October 2007 to December 2009 and this arose solely because she had reached the age of 65.

The Tribunal took into account the Employee Handbook which stated, “In addition to the pension, the Company operates an insured death-in-service (DIS) scheme which covers all permanent employees without exception.” Therefore a finding of discriminatory conditions of employment was established. The complainant also succeeded in an equal pay case for the period from October 2007 to October 2008.

She was awarded €5,000 in compensation for the discriminatory treatment suffered and equal pay remuneration of €523.93 (€43.66 x 12). Here, we can see the ancillary consequences of seeking to apply a retirement age, even if the notice of retirement is withdrawn. It did not help that it took the employer 11 months to work out that the employee was over the supposed retirement age.
http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-136-Full-Case-Report.html


3. DEC-E2012-138: Iwona Morzywoleck -v- Redmond Next Door Off Licence Ltd (In Liquidation)

Issues: Employment Equality Acts - gender - discriminatory dismissal
Award: €6,000

This case concerns dismissal on return from maternity leave. The respondent was in liquidation and did not participate in the proceedings. The Tribunal had to satisfy itself on the burden of proof in line with the Labour Court decision in Arturs Valpeters v Melbury Developments [2010] 21 E.L.R. 64 where it stated, “[Section 85A of the Acts] requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

In this case, the complainant gave evidence that a male replacement had been recruited while she was on maternity leave and that her continued in employment after her return. She also produced payslips, P45 and other documentation on her return to work following her maternity leave. Therefore, the Tribunal concluded that there was prima facie evidence of a discriminatory dismissal on the gender ground and, in the absence of any arguments on behalf of the respondent to rebut the case, it found in favour of the complainant. She was awarded €6000, which is roughly equivalent to six months’ salary, for the effects of the discrimination suffered.
http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-138-Full-Case-Report.html