A recent case of the Workplace Relations Commission in a Cleaner v A Cleaning Company ADJ-00026820 addresses the issue of age-based discriminatory treatment in the context of a discriminatory dismissal. The claimant alleged that her employment with the respondent had been terminated by reason of her age. The respondent outlined to the claimant that the company “had a policy of not having employees older than 65 years in the workplace”. It is important to note that a claim of discriminatory treatment requires a claimant to establish facts from which it may be presumed that there has been discrimination. This is provided for by virtue of Section 85 (A) (1) of the Employment Equality Act 1998 as amended which states as follows:

“Where in any proceeding facts are established by or on behalf of a complainant form which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary”

Provided a claimant can establish facts from which it may be presumed that there has been a discrimination in relation to him or her then in those circumstances it falls to the respondent to prove the contrary.

The Factual Background

In the above cited case before the Workplace Relations Commission the claimant had been informed by a co-worker that a transfer had taken place between her former employer and a new company, and as such she was now employed by the new company. This was the first occasion that the claimant had been informed of a transfer between her former employer and the new company.  The claimant contacted her previous employer to clarify the situation and was informed that her new employer would not be “engaging the complainant as she was over 65 years of age”. The new respondent company outlined to claimant that “they had a policy of not having employees older than 65 years in the workplace”. The claimant outlined to the Workplace Relations Commission that her contract of employment contained “no provision surrounding a retirement age”. The claimant alleged that she had been dismissed by reason of her age and her dismissal was discriminatory.

The Decision

The adjudicator held that the claimant’s “rights and obligations” arising under her contract of employment had transferred to the new respondent company. The adjudicator was satisfied that the claimant had established facts from which it could be presumed that the claimant had been subjected to discriminatory treatment. Therefore the onus fell to the respondent to prove that the complainant had not been subjected to discriminatory treatment. The respondent argued that there was a “normal retirement age” of 65 in the company and as such they submitted that the complainant had not been discriminated against. The adjudicator noted that a “normal retirement age” had not been reflected in the claimant’s conditions of employment nor was the claimant aware that such a practice existed within the company. In view of the facts placed before the Workplace Relations Commission, the adjudicator held that the claimant had been dismissed by reason of her age and awarded compensation.

Anyone wishing to read the above decision from the Workplace Relations Commission may do so by accessing www.workplacerelations.ie. Should you wish to discuss any of the above matters, please get in touch by contacting us at (01) 833 8147 or alternatively you can email us at [email protected]. Telephone and Video Call consultations are available by appointment.