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AGE DISCRIMINATION INTERNATIONALLY

IRELAND

 


LK Shields

www.lkshields.ie

 

Overview

Ireland was one of the first EU Member States to prohibit discrimination on the grounds of age. The primary source of legislation in Ireland on the subject of age discrimination are the Employment Equality Acts 1998 to 2008 (”the Acts”). The main body of the legislation is the Employment Equality Act 1998. The Equality Act 2004 was implemented to comply with EU Directive 2000/78 establishing a framework for equal treatment. The Acts prohibit discrimination (direct and indirect) on nine grounds, to include age. For the avoidance of doubt, these are national laws; there are no local laws in existence.

Direct discrimination is referred to as the treatment of one person in a less favourable manner than another person in a comparable situation on any of the nine grounds. (Section 6 (i)(a) of the Acts).

Indirect discrimination is deemed to occur where an apparently neutral provision puts persons of a particular group covered by the Acts at a particular disadvantage and where the provision is not objectively justified by a legitimate aim and the means of achieving the aim are not appropriate and necessary. (Section 22 (1)(a) of the Acts).

The Acts also prohibit victimisation and harassment.

Victimisation is deemed to occur where the dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction by the employer to a complaints procedure. (Section 74 (2) of the Acts).

Sections 14 and 14A of the Acts deal with harassment and sexual harassment.

Sexual harassment is defined as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. The unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display, or circulation of written words, pictures or other material.

Harassment is defined as any form of unwanted conduct related to any of the discriminatory grounds [other than gender] which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. The unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

Who's covered?

The following categories of persons are protected by the Acts:

·         Full-time, part-time and temporary employees in the public and private sectors (Section 8(6));

·         persons undertaking vocational training (Section 12);

·         agency workers (Section 8(1));

·         members of Trade Unions, members of Professional and Trade bodies (Section 13);

·         the self-employed (Section 2(1));

·         persons in partnerships (Section 13 A(1)); and,

·         persons employed in another person's home. (Section 2(1)).

Section 6(3) of the 1998 Act (as amended by s. 4 of the 2004 Act) provides that persons under the age of 16 years are not protected by the Acts. An employer may also set a minimum age, not exceeding 18 years of age for recruitment to a post.

The only category of employees excluded from the provisions of the Acts are members of the Defence Forces (Section 37 of the Acts as amended by s.25 of the 2004 Act).

What enforcement/remedies exist?

There are no criminal sanctions provided for in the Acts. All claims of age discrimination must be referred in the first instance to the Equality Tribunal. The Equality Tribunal is an impartial, independent body established to consider and adjudicate on cases brought under the Acts.

The role of the Equality Tribunal includes:

·         acting as a quasi-judicial forum for individual complaints of discrimination to be heard;

·         mediating on individual complaints of discrimination (if the parties agree).

A case proceeds to mediation if neither party objects to mediation and if the Equality Tribunal considers the case might be capable of resolution through mediation. However, if either party objects to mediation or, if mediation does not reach agreement, the Tribunal will investigate the case. This is a formal examination of a complaint, carried out by an Equality Officer. The Equality Officer will request both sides to set out their case in writing, hear the evidence at a hearing and issue a Decision. Decisions are legally binding and are published by the Equality Tribunal.

Redress/remedies which may be ordered under the Acts

Pursuant to Section 82 of the Acts, the following remedies are provided for:

·         Employees shall be entitled to compensation of up to two years' remuneration; non-employees shall be entitled to compensation of up to the sum of €12,697;

·         an order for equal treatment in whatever respect is relevant to the case;

·         an order that a person/persons take a specified course of action;

·         an order for re-instatement or re-engagement, with or without an order for compensation;

In equal pay cases claimants may be entitled to compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) for up to three years prior to the date of referral of the claim.

How common are claims?

The nine grounds prohibited by the Acts are gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the travelling community.

Many cases of alleged discrimination are brought on multiple grounds (with a view to maximising the claimant's prospects of success) according to the 2009 Annual Report of the Equality Tribunal. The table below sets out a breakdown of the number claims brought under the Acts in the years 2008 and 2009, in accordance with the Annual Report of the Equality Tribunal. Race continues to be the most frequently cited ground for claims of alleged discrimination.

What age discrimination claims are the most common and what are the trickiest issues for employers?

The most common cases appear to relate to alleged discrimination at the recruitment stage, most particularly in the course of the interview process, and in the area of promotion where it may be perceived that older workers may lose out.

One of the more complex areas is that of occupational benefit schemes and the treatment of employees within those schemes.

Furthermore, an issue which often arises (and upon which we regularly advise) is the alleged redundancy of an employee who has lengthy service with his/her employer and whom the employer wishes to replace with a younger recruit.

Are there specific exceptions in your laws?

Section 34 of the Acts sets out the exceptions to age discrimination.

Exemptions are provided in relation to age-based criteria for occupational benefit schemes and entitlement to benefits and severance pay, provided it does not constitute discrimination on the gender ground.

Employers are permitted to fix different retirement ages for the retirement of employees.

Employers may set a maximum age for recruitment which takes account of (a) any cost or period of time involved in training a recruit and (b) the need for there to be a reasonable period of time prior to retirement age during which the recruit will be effective in that job.

An employer may provide for different persons:

a)    different rates of remuneration, or

(b) different terms and conditions of employment, if the difference is based on their relative seniority (or length of service) in a particular post or employment.

Section 12(7) of the Acts sets out another exception in relation to age and provides that:

·         different treatment is allowed by vocational training bodies in relation to offering assistance to particular categories of persons by way of sponsorship, scholarships, bursaries or other awards but only to the extent that the assistance is reasonably justifiable having regard to traditional or historical considerations; and,

·         different treatment is allowed by universities or other third level institutions in relation to the allocation of places for mature students.

Also it does not constitute age discrimination to offer a fixed term contract to a person over the compulsory age of retirement. (Section 6(3) of the Acts)

Retirement Ages

As referred to previously, employers are entitled to set a mandatory retirement age.

Section 34(4) of the Acts provides that "it shall not constitute discrimination on the age ground to fix different ages for retirement (whether voluntarily or compulsorily) of employees or any class or description of employees".

The effect of this provision is that employers may, to some extent, avoid the legislation by setting a reduced mandatory retirement age.

An interesting case which relates to the issue of retirement ages is that of Leahy .v. Limerick County Council [DEC/E2003/038]. In this case, the Complainant alleged that he had been discriminated against on the grounds of age contrary to Section 6.2 (F) of the Employment Equality Act 1998 as the employer had operated a mandatory retirement age of 55 years for Fire Fighters. The Complainant argued that Fire Officers had not been required to retire until they reached the age of 65 years and also that some Fire Fighters had not been required to retire at 55 years of age. The Complainant further argued that Fire Fighters employed in other local authorities did not have to retire at age 55 years either. The Respondent employers submitted a document, which the Complainant had accepted, which clearly stated 55 years as the retirement age for the post. The Respondent further argued that Fire Fighters who are over the age of 55 years were exceptional and that the position of Fire Officer could be differentiated from that of Fire Fighter on the basis that it was distinct and less physically demanding than the position of Fire Fighter. The Equality Officer held that the Complainant had failed to establish a prima facie case of age discrimination and therefore held that the application of different retirement ages by the Respondent employers came within the parameters of Section 34.4 of the Employment Equality Act, 1998.

However, there have been a number of cases in the last couple of years which may have an effect on this area and make it harder for an employer to set a compulsory retirement age without having an objectively justified reason for doing so.

In Donnellan v. Minister for Justice, Equality and Law Reform and Ors. (Unreported, High Court, McKechnie J. 25 July 2008), Assistant Garda Commissioner Martin Donnellan challenged the retirement age of 60 for the Gardaí. Mr Donnellan was forced to retire at the age of 60 and challenged this on the basis that it was ultra vires and incompatible with Council Directive 2000/78/EC. The challenged failed on both points and Mr. Justice McKechnie in his judgement went on to consider whether the discrimination involved was objectively justified. The Garda Síochana argued that compulsory retirement age was necessary in order to ensure “motivation and dynamism through the increased prospect of promotion” and the court felt that these aims were “rational and legitimate”. Mr. Justice McKechnie went on to emphasise that any national measures that discriminate against someone with regard to age must follow the Directive guidelines, serve a legitimate aim and purpose and should be “proportionate”.

McCarthy v. Health Service Executive (Unreported, 19 March 2010) is another recent judgement of Mr. Justice Hedigan of the High Court, which looks at the law surrounding age discrimination in relation to retirement age. Section 19 of the Health Act 1970 set the mandatory maximum retirement age for permanent officers of the HSE at 65. Ms. Hedigan, however, had never been made permanent nor had she been furnished with a written contract detailing her retirement age. Therefore, she sought judicial review of the decision to terminate her employment at the age of 65. Ms Hedigan claimed that the decision constituted age discrimination and was not “proportionate or justified”. The court relied on an ECJ decision, Palacios de la Villa v. Cortefel Services SA [2007] ECR I-8531 where the European Court held that a law providing for a retirement age of 65 could not be discriminatory. Hedigan J. was of the view that the termination of the employment was lawful as the applicant had reached the age of retirement.

In light of the two judgements it would be prudent for Irish employers who have set a compulsory retirement age to consider the reasons behind these compulsory ages.

Other Interesting Cases

The first age discrimination claim that was upheld under Irish Law was the case of Equality Authority v. Ryanair [2001 E.L.R 107]. Section 10(1) of the Employment Equality Act 1998 provides that a person shall not publish or cause to be published or display an advertisement which relates to employment and which “(a) indicates an intention to discriminate or (b) might reasonably be understood as indicating such an intention”. In this case, the advertisement in question stated “we need a young and dynamic professional…” and that the ideal candidate would be “young and dynamic…”

The Equality Officer found that the use of the word “young” clearly indicated or might reasonably be understood as indicating an intention to exclude applicants who are not young. It was therefore discriminatory and Ryanair was ordered to pay a sum of €10,157.97 by way of compensation and ordered to take a specific course of action, to include a review of its equal opportunities policies, equality proofing of recruitment and selection guidelines and the publication of a statement of equal prominence to the offending advertisement.

Another interesting case in the area of recruitment is that of Cunningham v. BMS Sales Ltd [FEB/EE/2007/017]. Here the Complainant was requested, when applying for a job, to fill out a form with his date of birth and age. Mr. Cunningham gave the wrong age and no date of birth. A number of days later the Respondent questioned the Complainant about the form and refused to process the job application stating that Mr. Cunningham proved to be “evasive and uncooperative”. When pressed about his age the Complainant stated that he did not see how this was relevant to the job he was applying for. He had put his age down as 37 when it was in fact 47. The Equality Officer found that on the basis that the Respondent had sought the Complainants age and date of birth on the registration form and “subsequently pursued the matter with him”, that the Complainant had established a prima facie case of discrimination on the basis of age. The Authority awarded the complainant a sum of €5,000 in damages.

 

Table from Equality Authority Annual Report 2009

Grounds for referral (EE and Pensions) 2008 and 2009 Breakdown By Ground

2008

2009

Age

82

41

-50%

Disability

97

117

+21%

Family Status

6

8

+33%

Gender

79

95

+20%

Marital Status

3

2

-33%

Race

359

289

-29%

Religion

2

0

-100%

Sexual Orientation

5

6

+20%

Traveller Community

1

2

+100%

Multiple Grounds *

199

209

+5%

No Grounds Listed

9

11

+22%

Total

842

780

-7%