by Barry Walsh, Partner and Head of the Employment Team at McDowell Purcell.
Most of the age discrimination cases that HR practitioners are likely to encounter these days are probably challenges to mandatory retirement ages.
However age discrimination cases can arise in various other employment situations including unsuccessful recruitment or promotion cases.
Recently, an Irish University was unsuccessful in its defence of a WRC claim by a sixty one year old employee challenging her unsuccessful application for a promotion in 2015. The remedy of €30,000 as compensation coupled with an order of retrospective promotion back to 2015 with associated back pay, is a significant one.
While the facts of each individual case will obviously differ, in many situations a complainant employee who is unsuccessful in a promotion situation may be able to establish an inference of discrimination and, in that way, shift the legal burden of proof to the employer. An inference of discrimination might arise, for example, in situations where an older unsuccessful applicant might appear on the facts of the case to have better expertise and experience than significantly younger successful applicants and where the relative ratio of older applicants is comparatively low.
In this case the sixty one year old employee was able to satisfy the WRC adjudicator that on the facts of the case such an inference of discrimination arose. Therefore the adjudicator turned to the employer to seek an explanation and provide it with a chance to assert a defence.
In an interesting twist on how data protection issues are now cutting across many areas of employment law and HR practice, the application and related documentation in relation to younger successful candidates were made available to the WRC as part of the evidence. However, according to the WRC decision, these were heavily redacted for data protection reasons to protect the identity of other employees. The WRC Adjudicator made some interesting comments on that aspect and it seems that the Adjudicator felt that, as a result of this heavily redacted material, he was unable to identify how assessment was applied by the employer for those younger comparator applicants. This impacted on the employer’s defence of the claim.
An associated claim of gender discrimination by the Complainant failed, due to the high ratio of female applicants who were successful in the promotion round and the WRC was satisfied there was no discrimination against women in the competition.
The case is a reminder of how age discrimination allegations can arise not just in the retirement area but also in employer recruitment and promotion and competitions.
As with any such case, the decision can be appealed within the statutory timeframe.
About the author
Barry Walsh is Partner and Head of the Employment Team at McDowell Purcell. Barry advises a wide range of Irish and multinational corporate, public and institutional clients on all aspects of Irish employment law from recruitment to retirement including contentious, advisory and transactional work. Barry is experienced in acting for clients with respect to contractual and termination issues with senior executives. In addition to advising on employment law, he has also advises on industrial relations issues arising from mergers and acquisitions, outsourcing and redundancy situations. He has significant litigation experience and has directly represented clients before the European Court of Justice, the Irish civil courts and all specialist Irish employment tribunals.
