Facts: The Complainant was employed as a senior staff nurse from the 10th May 2014 until the date of her compulsory retirement on the 28th October 2019, by the Respondent, a nursing home in liquidation. She received remuneration of approximately €5,883 per month gross. The Complainant sought an award of compensation in respect of discrimination suffered, loss of almost a year’s work and loss of redundancy payments before the Respondent closed and went into liquidation.

The Complainant was initially provided with a “Relief Panel Fixed Term Contract” valid from 10th May 2014 until 9th May 2015, requiring her to work ‘as required and when the need arises, varied hours up to 39 hours of a standard 39 hour week’. This included a retirement clause stating ‘Retirement age is 65 years. Employment beyond retirement age is exceptional and only by agreement of the employer.’ There were no further renewals of this contract, and it therefore effectively became a contract of indefinite duration.

The Complainant carried out a wide and diverse range of duties, had an exemplary work record, “never” took sick leave, and had no capability issues. She was granted a one-year extension on her compulsory retirement, setting her new retirement date as 31 October 2019. At the time of the termination of her employment the Complainant was working 40 hours per week, and occasionally longer shifts. In July 2019, the Complainant entered discussions with Ms. A, who was the Clinical Nurse Manager and the Complainant’s line manager. This meeting was in regard to continuing her employment following the 31st October 2019. Here, Ms, A. indicated her support for this and told the Complainant to apply for an extension in writing. She wrote a letter to Ms. A dated 16th July 2019, stating that she wished to remain in employment for a further year from 31st October 2019. She did not receive a response.

In absence of a response, the Complainant went straight to the Director of Nursing, Mr. B. They arranged a brief meeting for the first week of September 2019 where the Complainant clearly informed Mr B. that she wished to remain in employment. He informed her that this would not be possible and that they would only have work for her until the end of October 2019. He also informed her verbally that there was a plan to recruit non-EEA national nurses to fill positions with the Respondent. Non-EEA national work visas can only be applied for by employers when no suitable EEA nationals were available to work in the same occupational category. The Complainant asserts that the Respondent did not offer any rationale or objective justification for their decision to terminate her employment.

On 25th October 2019, the Complainant received her final one-line communication from Mr. B confirming that her last working day would be 28th October 2019. Non-EEA nurses were recruited in November 2019 and took over the Complainant’s duties. The Respondent operated for a further eleven months and was then subject to High Court Winding-Up Proceedings on the ground of insolvency. Some staff were redeployed nearby, others received statutory redundancy and approximately €3,000 ex gratia payment which the Complainant had been denied. She had received an excellent reference from Ms. A, which the Complainant asserts proves that she was dismissed based purely on age. On 19th November 2019, the Complainant submitted a request for information via the statutory questionnaire outlining the circumstances for her compulsory retirement.

The complaint was referred to the WRC on 28th February 2020. As the Respondent was subject to a High Court Winding-Up Order, the appointed liquidator attended in its place. No evidence was provided in rebuttal of the complaint that the Respondent had acted unlawfully and in breach of the Employment Equality Acts on the ground of age.

Decision: The Adjudicator found that the only basis for the Complainant’s compulsory retirement was her date of birth, and that at the time she was provided with the Fixed Term Contract in 2018 upon her reaching the age of 65, no objective justification was given either verbally or in writing. When the Complainant requested a further extension in writing before its expiry, the Respondent did not meaningfully engage with her, and her employment was terminated with no justification provided. The Adjudicator was satisfied that there was sufficient work available that the Complainant was fully capable of undertaking. The Adjudicator found that the Complainant had made out a prima facie case that she was subjected to discriminatory dismissal. The Respondent was ordered to pay the Complainant €85,000, being 2 years’ remuneration, in compensation for breaches of the Employment Equality Acts. The Adjudicator took into account the effects of the discrimination on the Complainant who suffered stress and indignity during the 11 months loss of earnings, denial of statutory redundancy and an ex gratia payment.

Takeaway for the Employers: Employers should note that compulsory retirement must have an express valid reasoning and justification behind it, and that it is not exempt from being construed as discrimination on the basis of age. A retirement age less that the State Pension age is always more susceptible to a challenge. However, it should be noted that this case was not contested by the Respondent at all.

Link  – https://www.workplacerelations.ie/en/cases/2021/august/adj-00027325.html

Authors – Anne O’Connell and Hannah Smullen