The employee in this case was 68 years of age when his employment was terminated on the grounds of age.
James Spencer claimed there was no compulsory retirement in the workplace, and others had been permitted to work past the age of 68. The employer claimed there was a company retirement age of 66.
The employer, in the lead up to the termination of employment, wrote to Mr Spencer and said, inter alia, “and I am now making it an official company policy that retirement be taken in line with the state pension age which is currently 66 years of age”.
This decision was clearly a unilateral decision by the company, but a unilateral change of an employment contract is not permitted was Mr Spencer’s argument. He also pointed to another employee who had been allowed to work into his 72nd year.
Mr Spencer’s case was that he was dismissed on account of his age, and this was discriminatory if there was no retirement age specified in the contract of employment.
The employer’s position was that it denied this was a discriminatory dismissal and the employer had a retirement age of 66. The change in the company policy had arisen as a consequence of the covid 19 pandemic which forced a change of the company policy with respect to retirement age. The company claimed this decision was to protect Mr Spencer and other older employees in the context of public health guidelines and Covid 19.
WRC adjudication officer decision
The AO held that the evidence supported Mr Spencer’s argument that the employer had unilaterally changed the terms of his employment. There was no signed contract by the employee.
No public health guidelines exist, or existed, to require an employee to retire at age 66 on health grounds. The decision to change the retirement policy was a unilateral one which was not based on medical evidence.
The AO held there was no mandatory retirement age in this workplace until the June 2020 letter in which the manager wrote, “I am now making it an official company policy that retirement be taken in line with the state pension”.
The law does not permit this unilateral action on behalf of one of the parties. A unilateral change to the contract of employment would only be permitted if the change was reasonable. The AO held that this change was not reasonable.
It was noted that Mr Spencer made great efforts to mitigate his loss, although he did not appeal the decision of the company to retire him.
The adjudication officer held that Mr Spencer was unfairly dismissed on the grounds of his age and awarded him 18 months’ salary which amounted to €31,558.
There was also a claim under the Employment Equality Act but the decision was that the claim had been determined under the Unfair Dismissals Act 1977 and he could not be compensated twice arising from the same circumstances. The Labour Court has held that an employee cannot “rely on the same facts to obtain redress under more than one head of liability”. This was essentially a parallel claim.