The recent Equality Tribunal decision of Rose Kelly & Margaret Masterson (deceased) v Chivers Ireland Ltd concerns an age discrimination case taken by the applicants against jam makers Chivers Ireland. The applicants claimed they had been discriminated against contrary to Section 8 of the Employment Equality Acts 1998-2011, as they were both over 60 and the redundancy package being offered favoured those under 60 years of age. The case was originally taken to the Equality Tribunal where the Tribunal found that the applicants had been discriminated again however, this decision was appealed by the Respondents to the Labour Court in November 2011.
Northside Community Law Centre represented the applicants and it was announced that the respondents had withdrawn their appeal. Therefore, the decision of the Equality Tribunal stands together with the order of the Equality Officer which stated that there should be equal treatment with regard to pay and redundancy packages for those over the age of 60.
The question arose before the Equality Tribunal whether the distinction between redundancy packages for those over 60 and for those under 60 was capable of being objectively and reasonably justified. The Equality Officer suggested that “if the employer had used a tapered scheme based on income forgone that their justification would be less questionable.”
Moya de Paor, the solicitor at Northside Community Law Centre who acted in the case, says “This is an important decision in relation to age discrimination in the workplace particularly in the present climate and we hope it assists other employees who find themselves in a similar situation. The Complainants are delighted that the case is finally resolved.”
Click here to see the Equality Tribunal's decision.
Meanwhile, the UK Supreme Court has recently issued judgments on two cases dealing with age discrimination in employment. In the first case, Seldon v. Clarkson Wright and Jakes, a solicitor brought an action alleging direct discrimination against the firm he had been a partner in. He had been forced to retire when he reached the mandatory retirement age of 65, which was specified within the partnership deeds. A primary element of the case was the scope for justifying direct discrimination on the ground of age and the court noted that a distinction must be drawn between the tests for justification in indirect and direct discrimination cases. The court dismissed the appeal, finding that it was necessary to identify the actual objective being pursued by the solicitors firm through implementation of the age restriction. The court further held that once this objective was identified, it had to be asked whether it was legitimate in the particular circumstances of the case.
Seldon was heard alongside Homer v. Chief Constable of West Yorkshire Police. The Homer case involved an employee of the Police National Legal Database who was alleging indirect discrimination against his employers. He had worked for the PNLD for a number of years as a legal advisor and was effectively at the top grade. When he had started he had not needed a law degree, however a new grading structure which had been introduced meant that he could not reach the top grade without one. If he wanted to reach the top tier of the grading structure he would have to study part-time for four years for a law degree and he was due to retire at 65, in three years’ time. He therefore alleged that this constituted indirect discrimination.
The Supreme Court disagreed with the previous reasoning in the Employment Appeals Tribunal and the Court of Appeal that any disadvantage was not due to the applicant’s age but his impending retirement, as this ignores that the issue of retirement is directly related to the applicant’s age. In terms of whether this discrimination was justified, it was held that scope for justifying indirect discrimination is greater than direct discrimination. The case was referred to an Employment Tribunal to reconsider the issue of justification. It was necessary for the ET to consider whether the treatment of the appellant was proportionate (an appropriate means of achieving the legitimate aim and reasonably necessary in order to do so) as well as in pursuit of a legitimate aim.
Click here to read the Seldon judgment.
Click here to read a blog post by the UK Supreme Court blog on the Seldon case.
Click here to read the Homer judgment.
Click here to read a blog post by the UK Supreme Court blog on the Homer case.