In May 2017, Ability West which provides residential and respite care services to intellectually disabled children and adults, advertised the position.
The job involved 16 hours of work, two days per week.
Bus driver James Maloney submitting his CV, as well as his driver’s licence, driver’s card, and driver’s qualification card.
The WRC hearing heard that Ability West flagged that it was “committed to equal employment opportunity regardless of… age” in the job advert but the issue of age was not mentioned elsewhere.
James Maloney was offered the job of permanent part-time minibus driver and passed fit and suitable for employment in June 2017.
The following month after telling his then current employer that he had been offered a new job, he got a call from Ability West’s Assistant Director of HR, asking his date of birth.
He was told the charity had seen from his Garda Vetting form that he was over 65, and that they could no longer give him the job due to their policy of a mandatory retirement age of 65.
Correspondence between the parties led to an offer of a one-year, fixed term contract, with the possibility of another year. James Maloney replied that Ability West had already offered him a position which he had accepted.
In October 2017, Mr Maloney submitted a claim to the Workplace Relations Commission complaining of discrimination on the basis of age, contrary to the Employment Equality Act 1998-2015.
Adjudication Officer Ray Flaherty said he was satisfied that Mr Maloney had clearly established a prima facie case that he was potentially subjected to an act of discrimination based on his age.
As such, the burden of proof passed to Ability West to defend the claim.
Health and safety
Adjudication Officer Flaherty said it was unreasonable for Ability West to apply health and safety constraints in relation to bus drivers, when this is clearly not being applied across other groups and categories of staff.
While accepting that the bus drivers might have to deal with challenging situations relating to the behaviour of their passengers, Adjudication Officer Flaherty said he was not provided with any evidence to suggest that a driver’s ability to cope in such situations could be impacted by age.
He said it was clear that Mr Maloney was “a competent and experienced driver, whose CV was such that Ability West considered him suitable for the position on offer”.
Adjudication Officer Flaherty was not satisfied that Ability West reasonably demonstrated that health and safety represented an objective justification for the imposition of a mandatory retirement age of 65 in this case.
Adjudication Officer Flaherty also considered the offer of a one-year fixed term contract as an alternative to the permanent, part-time contract which was withdrawn by Ability West.
Adjudication Officer Flaherty said he was “strongly of the view that this offer was made as a result of the Complainant’s objection to the withdrawal of the initial job offer. In this regard, I believe that such offer would not have been made had the Complainant accepted the situation without protest”.
He was satisfied that the offer of a fixed term contract was made after the act of discrimination took place, and in all the circumstances, it could not be considered to negate the discrimination.
Concluding that Mr Maloney’s complaint that he was discriminated against by Ability West on the grounds of age was well-founded, Adjudication Officer Flaherty made an award of €2,500 in his favour, in compensation for Ability West’s breach of Section 8 (1) of the Employment Equality Act 1998-2015.