A recent decision of the Workplace Relations Commission Adjudication Service in Teresa McCoy O’Grady -v- Sodexo Ireland Limited has shown that the WRC can treat a mandatory retirement as an unfair dismissal under certain circumstances.
In this case, the Complainant was employed as a chef from February 2012 until March 2020 when she alleged that she was unfairly dismissed when the Respondent refused to extend her fixed-term contract on the basis of her age. The Respondent became the Complainant’s employer by virtue of the Transfer of Undertakings Regulations (TUPE) in 2019.
The Complainant’s contract of employment (and an extension letter for same) placed the Complainant’s retirement age at 29th March 2020. The Respondent submitted that the Complainant was advised that her retirement was based solely on the terms and conditions of her employment. Furthermore, it was submitted that the Respondent agreed to allow the Complainant to retire two days earlier than planned at the Complainant’s request and that the retirement passed amicably. Thereafter the Complainant lodged a WRC complaint five months later.
The Respondent’s defense was that both the Complainant’s contract and the custom and practice of the site justified the retirement policy. Furthermore, the Respondent noted that their Grievance Policy was not utilized by the Complainant ahead of the retirement.
The Complainant raised the fact that previous employees of the Respondent were permitted to continue to work past 66 so long as they were shown fit and healthy to do so and that she would have submitted to a medical to save her role if needs be. She also submitted that there were members of the care staff of the Respondent who exceeded her age and that she was being treated differently.
In their determination, the Adjudicator noted that the Complainant had only raised complaints under the Unfair Dismissals legislation and accordingly the Adjudicator could not consider possible claims under the Employment Equality Acts.
In their decision, the Adjudicator found that the Complainant has a legitimate expectation that her contract would be extended and that when the Respondent carried over her contract under TUPE they also carried over the Respondent’s right of the Complainant to have her contract extended.
A key element of this decision was the finding that the Respondent did not provide an objective justification for not extending the Complainant’s contract.
Regarding the appropriate award, the Adjudicator noted that as there was no evidence either of mitigation efforts being taken by the Complainant or of losses above what the Complainant would have experienced by virtue of the Covid-19 effect on her role, then the appropriate award of four weeks remuneration should be sufficient in accordance with S.7(1)(C)(ii) of the Unfair Dismissals Act 1977.
This case highlights the issues around having a mandatory retirement policy. Specifically, it is vital to ensure that the policy is reflected in the contract and custom and practice of the employer.
Furthermore, employers also need to ensure that where extensions are granted to employees, beyond the contractual retirement age, same should only be refused where it can be objectively justified, i.e. where an employee fails a medical intended to assess their capability to continue in the role.
If you have any queries in relation to any Employment Law matter, please do not hesitate to contact either Brendan Dillon or Conor White on 01-2960666.
