This is another case from the hospitality sector, this time concerning a kitchen worker was dismissed when the employer realised that she was 68 years of age. She had been employed since 1998 and took ill in April 2009. The hospital medical certificate set out her date of birth and she was dismissed with four weeks’ notice.

The respondent claimed that she must have given an inaccurate date of birth on her application form but, since the hotel had changed hands, a copy was not available for the Tribunal. She also explained a false date of birth on a medical questionnaire in March 2004 as a mistake by her daughter who had filled it out for her.

The Tribunal took into account the complainant’s evidence that she could have obtained a medical certificate from her doctor which would not have contained her date of birth and concluded that she had not deliberately misled her employer.

This leads on to the main issue, namely whether the employer had a mandatory retirement age and whether the complainant was aware of it. The respondent could not produce any evidence of an explicit mandatory retirement age from contracts or the Company Handbook at the time that the complainant was dismissed.

The Tribunal distinguished the case of McCarthy v HSE ([2010] IEHC 75) on the basis that the complainant in that case ought to have known about a mandatory retirement age in the public sector but that the hospitality sector “was not a monolith”. This complainant was much older than her co-workers and there had not been any mandatory retirements in the hotel. However, the Tribunal did accept that the company had a mandatory retirement age, in that it had immediately dismissed the complainant upon learning of her age.

After examining the authorities, the Tribunal turned to issue of objective justification for direct age discrimination under the Framework Employment Equality Directive 2000. In previous cases, respondents had argued that the significance of Section 34(4) of the Employment Equality Acts (see, for example, DEC-E2012-093: O'Neill v Fairview Motors Ltd), which appears to exclude age restrictions from the scope of the non-discrimination principle. However, in this case, a respondent represented by IBEC chose to rely entirely on section 34(4) and not offer any evidence on objective justification.

The Tribunal recalled the statement of Hamilton J in Nathan v Bailey Gibson ([1998] IR 2 IR 162, reflecting the principle of the indirect effect of EU Directives, “It is also well established that national or domestic courts in interpreting a provision of national law designed to implement the provisions of a directive, should interpret their national law in light of the wording and the purpose of the directive in order to achieve the result envisaged by the directive.”

The Tribunal also relied upon Donnellan v The Minister for Justice, Equality and Law Reform ([2008] IECHC 467) where McKechnie, J. states, “Any discrimination with regards to age must, as put by that Directive, serve a legitimate aim or purpose, and the means taken to achieve that purpose must be appropriate and should go no further than is necessary, i.e. they should be proportionate.”

Whether the Tribunal’s approach precipitates further litigation remains to be seen. In this case, in the absence of argument on objective justification, the Tribunal concluded that this was a discriminatory dismissal and awarded the complainant €9,000.

http://www.equalitytribunal.ie/Database-of-Decisions/2012/Employment-Equality-Decisions/DEC-E2012-110-Full-Case-Report.html