DEC-E2012-110 – Roseanna Nolan versus Quality Hotel Oranmore (now trading as Maldron Hotel,
Galway) – Enforced Retirement Age
Full Case Report - DEC-E2012-110
Equality Officer's Decision
Parties:
Roseanna Nolan
Versus
Quality Hotel, Oranmore -now trading as Maldron hotel, Galway (represented by Irish Business and
Employers’ Confederation)
Date of issue: 27th August 2012
Dispute
This case concerns a complaint by Roseanne Nolan against her former Employer Quality Hotel,
Oranmore (Caruso Ltd) now trading as the Maldron Hotel, Galway that she was discriminated against
on the grounds of age in terms of 6 (2)(f) of the Employment Equality Acts 1998-2008 [hereinafter
referred to as 'the Acts'] regarding being forced to retire.
The Complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 20th
November 2008. In accordance with his powers under Section 75 of that Acts, the Director delegated
the case on 9th September 2011 to Orlaith Mannion, an Equality Officer, for investigation, decision
and for the exercise of other relevant functions under the Part VII of the Acts. Submissions were
received from both parties and a Hearing was held on 16th January 2011. The final correspondence
received in relation to information sought by the Equality Officer was on 19th April 2012. In reaching
my decision I have taken into account all of the submissions, written and oral, made by the parties.
Summary of the Complainant's case
The Complainant began work with the Respondent on 28th August 1998 as a kitchen assistant. She
submits that she enjoyed her work and continued to work there for nearly ten years. On 29th April
2008 she was ill and received a medical certificate from University Hospital, Galway for a week of
sick leave.
Her date of birth was on this medical certificate which showed her to be 68. She was then
compulsorily retired as the Respondent told her their retirement age was 65. She submits that she
was shocked at this as she had no idea that the Respondent had a mandatory retirement age. She
said that on any of the documentation she received from the Respondent over her ten years working
there - retirement age was never mentioned. Ms Nolan stated that she wished to continue working
as she is a fit and healthy woman and that she had no absenteeism issues. She submits that there
was no custom and practice of people retiring there - the workforce was much younger.
She said that she was unable to find another job as Employers will not take on somebody who is 68.
Summary of the Respondent's Case
Since Ms Nolan lodged her complaint the Quality Hotel, Oranmore (then a Choice Group hotel) has
been taken over by Caruso Ltd and is now trading as Maldron Hotel, Galway. They submit that she
was a conscientious worker and attained 'Employee of the month' in April 2007. However, the
Respondent submits that Ms Nolan lied on a medical questionnaire filled out on 16th March 2004
where she stated her date was 30th August 1950. When the medical certificate was presented in
April 2008 it became clear that her actual date of birth was 30th August 1940. Following this absence
on sick leave (prior to being retired) she requested to work a four day week which she was granted.
On 26th May 2008 the General Manager told Ms Nolan that the hotel had a retirement age of 65
and that they would have no option but to retire her. She was given four weeks’ notice and he
wished her well.
Conclusions of the Equality Officer
The issue for me to decide is whether or not Ms Nolan was discriminated on the grounds of age in
terms of Section 6 2 (f) of the Acts contrary to 8(6)(c). Section 6 (1) of the Acts provides that
discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) one
person is treated less favourably than another is, has been or would be treated.
Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It
requires the Complainant to establish, in the first instance, facts upon which he can rely in asserting
that he suffered discriminatory treatment. It is only where such a prima facie case has been
established that the onus shifts to the Respondent to rebut the inference of discrimination raised.
Prima facie evidence has been described as 'evidence which in the absence of any credible
contradictory evidence by the Employer would lead any reasonable person to conclude that
discrimination has probably occurred. There are two issues for me to decide:
i.
Was the Complainant discriminated regarding her conditions of employment regarding her
age?
ii.
Was the Complainant discriminatorily dismissed on the grounds of age?
Conditions of employment
No evidence has been adduced that the Complainant has been treated less favourably because of
her age regarding her conditions of employment. Therefore this strand of her case fails.
Dismissal
There is no dispute that Ms Nolan was compulsorily retired when the hotel realised what age she
was. However, there remains two disputes of fact between the parties:
i.
Was the Complainant aware of the company's retirement age?
ii.
Did she deliberately lie about her age?
The Complainant correctly points out that the Employee handbook she was given (and signed that
she received) mentioned nothing about a retirement age. The copy given to me at the hearing was
one after the hotel became part of the Maldron Group i.e. after Ms Nolan lodged her complaint. The
Complainant did not receive it while she was working for the Respondent. I requested Ms Nolan's
Personnel file and there is no record of any documentation given to her detailing the hotel's
retirement age. The Respondent submits that she should have known 65 is the compulsory
retirement age. They cite McCarthy v HSE in their defence2. In that case, Hedigan J found that Ms
McCarthy, a radiographer who also qualified as a barrister, should have known that the standard
retirement age for public servants employed before the Public Service Superannuation
(Miscellaneous Provisions) Act 2004 was 65. However, the hospitality sector is not a monolith like
the public sector. Customs and practices can and do vary between hotels. Ms Nolan gave cogent
evidence (which the Respondent did not contradict) that the workforce there was young and in her
ten years working in the hotel nobody worked until they were 65. It should be noted that the hotel
did not provide for a superannuation scheme; Employees were offered a PRSA option which can be
drawn down from any age between 60 and 75. While I accept that the Respondent did have a
retirement age in that as soon as they heard Ms Nolan was over 65, they retired her. However, I also
accept the Complainant's evidence that she was not aware of the Respondent's retirement age and
the Respondent presented no factual evidence to rebut it.
Turning to (ii), the Complainant submits that when she applied for the job as a kitchen assistant she
filled out an application form which required her date of birth. She maintains that she put her
correct date of birth on it. The Respondent no longer has a copy of the application form. Regarding
the medical questionnaire mentioned in 3.1, Ms Nolan stated her daughter filled out this form for
her as she has reading difficulties and that is why the date of birth is inaccurate by a decade - her
daughter simply miscalculated. Ms Nolan was adamant that she was not trying to deceive her
Employer. She points out that the medical certificate that led to her being compulsorily retired
clearly states her correct date of birth. She voluntarily gave this to the Respondent following her sick
leave. This was a hospital sick certificate which almost always includes the patient's date of birth she submits could have easily gone to her GP who would have given her sick certificate without her
date of birth on it, had she wished to withhold her date of birth from the Respondent. On the
balance of probabilities, I prefer the Complainant's evidence that she was not seeking to deceive her
Employer about her age.
The Respondent states that it does not have to objectively justify its retirement age because of
Section 34(4) of the Acts: Without prejudice to subsection (3) it shall not constitute discrimination on
the age ground to fix different ages for the retirement (whether voluntary or compulsory) of
Employees or any class or description of Employees. The Respondent correctly points out that the
Labour Court reserved its position on the compatibility of Section 34 (4) with Article 6(1) of the
Framework Directive immediately following the Palacio de la Villa case because the case before the
Labour Court could be decided on other grounds. Article 6 (1) states: Notwithstanding Article 2(2),
Member States may provide that differences of treatment on grounds of age shall not constitute
discrimination, if, within the context of national law, they are objectively and reasonably justified by
a legitimate aim, including legitimate employment policy, labour market and vocational training
objectives, and if the means of achieving that aim are appropriate and necessary. The Respondent
warns this Tribunal not to exceed its jurisdiction and cites Charlton, J in Minister for Justice, Equality
and Law Reform v Equality Tribunal: The Respondent does not have the authority to make a binding
legal declaration of inconsistency or insufficiency on a comparison of European and national
legislation. The High Court has that power as this has been expressly reserved to it by Article 34 of
the constitution.
That case differs from this instant case in that it concerns whether an Equality Officer was entitled to
commence a hearing to investigate whether S.I. 749 of 2004 was compatible with the Employment
Equality Acts. However since Ireland joined the EEC in 1973, European Community law has taken
precedence over national law. In the Supreme Court case Nathan v Bailey Gibson, Hamilton, CJ
stated: 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.
To determine whether a Court or Tribunal (such as this Tribunal) is one within the meaning of
Section 177 of the Treaty Establishing the European Union, in Doris Saltzmann the Court of Justice of
the European Union (hereinafter CJEU) had to take into account a number of factors such as
whether the body is established by law, whether it is permanent, whether its jurisdiction is
compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is
independent. 7 The Equality Tribunal was established by the Employment Equality Act 1998,
decisions (subject to appeal to the Labour Court) can be enforced under Section 91 of the
aforementioned Act, hearings are inter partes, it applies rules of law and is independent. Therefore
it is entitled to make a preliminary reference to the CJEU and is a 'national court which when called
upon, within the limits of its jurisdiction, to apply provisions of Community Law is under a duty to
give full effect to those provisions.
The Respondent also cited Paragraph 25 of the recent CJEU case Maribel Dominguez v Centre
Informatique dur Centre Ouest Atlantique: It is true that this principle of interpreting national law in
conformity with European Union law has certain limitations. Thus the obligation on a national court
to refer to the content of a directive when interpreting and applying the relevant rules of domestic
law is limited by general principles of law and it cannot serve as the basis for an interpretation of
national law contra legem (see Case C268/06 Impact [2008] ECR I2483, paragraph 100, and
Angelidaki and Others, paragraph 199). However, that Respondent left out the previous paragraph in
that decision which reiterates what has been said in Paragraph 4.9 of this decision: In that regard,
the Court has consistently held that when national courts apply domestic law they are bound to
interpret it, so far as possible, in the light of the wording and the purpose of the directive concerned
in order to achieve the result sought by the directive and consequently comply with the third
paragraph of Article 288 TFEU. This obligation to interpret national law in conformity with European
Union law is inherent in the system of the Treaty on the Functioning of the European Union, since it
permits national courts, for the matters within their jurisdiction, to ensure the full effectiveness of
European Union law when they determine the disputes before them (see, inter alia, Joined Cases
C397/01 to C403/01 Pfeiffer and Others [2004] ECR I8835, paragraph 114; Joined Cases C378/07 to
C380/07 Angelidaki and Others [2009] ECR I3071, paragraphs 197 and 198; and Case C555/07
Kücükdeveci [2010] ECR I365, paragraph 48).
The Respondent also cites Francoivch. The Respondent submits that a private sector Employer is
entitled to rely on the law of this State. If that law is not compliant with European law, then
individuals have a remedy against the State. It further submits that private sector Employers cannot
be penalised for the State's failure to properly transpose a Directive. I am not seeking to penalise the
Respondent. Prior to the hearing, I wrote to the Respondent's representative on 1st December 2011
asking him to comment on the relevant decisions of this Tribunal (I included the references of these
cases) concerning compulsory retirement age at the hearing. On the day of the hearing, I asked the
Respondent for oral submissions on objective justification. What was submitted in response (orally
and in writing) are the arguments ventilated here from Paragraph 4.7 to this paragraph on why the
Respondent does not deem it necessary to objectively and reasonably justify their mandatory
retirement age.
The Respondent did not cite Donnellan v The Minister for Justice, Equality and Law Reform 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.
Interpreting the Employment Equality Acts in a harmonious way with the relevant Directives has
been the practice of this Tribunal - see Five Complainants v Hospira12 Rose Kelly and Margaret
Masterson v Chivers13, Saunders v CHC14 and Paul Doyle v ESB International15. The Respondent's
representative organisation is one of the most frequent attendees at the Tribunal and, therefore,
should be aware of the Tribunal's approach but chose not to offer arguments on objective and
reasonable justification.
To summarise, I am satisfied the Complainant was unaware of the Respondent's compulsory
retirement age as it was not written down in any of the documentation that she received nor did
custom and practice apply as Employees did not continue to work there until they were 65. When
invited to give reasons as to why the Respondent has a mandatory retirement age, they opted not
to. Based on the totality of the evidence, I am satisfied that Ms Nolan has established a prima facie
case of discriminatory dismissal on the grounds of age and Quality Hotel, Oranmore has failed to
rebut it. For the avoidance of doubt, I am not saying that the Respondent is not entitled to set a
mandatory retirement age but that this requirement should be capable of being justified on
objective and reasonable grounds.
Decision
I have concluded my investigation of Roseanna Nolan's complaint. Based on all of the foregoing, I
find, pursuant to Section 79(6) of the Acts, that
i.
The Complainant was not discriminated regarding her conditions of employment on the
grounds of age
ii.
The Complainant was discriminatorily dismissed on the grounds of age. Pursuant to 82 (1)
(c), I order that the Respondent pay the Complainant €9,000 which is roughly equivalent to
six months’ salary. Because of the length of time between the lodging of the complaint and
the hearing, the Complainant has sought compensation rather than reinstatement.
This award is redress for the infringement of Ms Nolan's statutory rights and, therefore, not subject
to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of
the Finance Act 2004).
Orlaith Mannion
Equality Officer