Man (70) receives €31,000 after boss imposed retirement to ‘protect’ him from Covid

A worker has been awarded over €31,000 in compensation for unfair dismissal after his employer imposed a mandatory retirement age to “protect him” from Covid-19.

James Spencer (70) lodged complaints under the Unfair Dismissals Act and the Employment Equality Act against Heavey Technology-Quality Labels Ltd.

The firm denied discriminating against Mr Spencer and told the Workplace Relations Commission it had a "clear retirement policy".

Mr Spencer heard the public health advice issued when the Covid-19 pandemic reached Ireland and asked to take leave from work, a hearing last March was told, before requesting to return to work after a number of months off.

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In a letter to Mr Spencer on 19 June 2020, which was submitted in evidence, the firm’s sales director wrote that he had had to “reconsider” the question of a compulsory retirement age “given the developments and health pandemic over the last number of months”.

“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… it is a policy change which I feel needs to be implemented given the current environment,” the sales director wrote, before inviting Mr Spencer to a meeting.

Expectation

Solicitor Michelle Quinn of Colm O'Cochlain & Co, who appeared for Mr Spencer at an adjudication hearing in March, said her client "had an expectation that he could work like any other employee; subject to his physical and mental capacity to do so".

She said the firm issued a contract to Mr Spencer for the first time in 2015, around five years into his employment, which “detailed a retirement age linked to the age eligibility for the state pension”.

“However, he never signed that contract. A contract cannot be changed unilaterally” she said.

It was her client’s position that it was custom and practice to work past the State pension age of 66 - and that a colleague had worked into into his 72nd year.

“The complainant was dismissed because of his age and not because the employer exercised an agreed retirement term of the employment contract,” she argued.

At the hearing, company director Patrick Burke said the firm "facilitated a retirement process that was flexible" in "normal times".

“The company invoked the retirement age term stated in the employment contract due to the public health guidelines that indicated older people such as the complainant were more vulnerable to the virus,” Mr Burke submitted.

“To protect him, the company asserted its right to retire the employee,” he said.

"The fact is, no public health guidelines exist that require an employer to retire employees over the age of 66 because they were more vulnerable [THAN]younger employees," wrote adjudicating officer Brian Dalton in a decision published this morning.

Medical advice

He wrote that the manager had made a “unilateral” decision to change the retirement policy without the benefit of medical advice.

“It may have been reasonable if the decision was based on independent medical advice, but it wasn’t. The fact is, many employees in this age category continued to work during the pandemic and took the necessary precautions to minimise harm to themselves. There is no evidence to suggest this employee was unfit to work,” he wrote.

Mr Dalton found there was no mandatory retirement age at the company before 19 June 2020, when the manager changed it.

“On the evidence the manager is making a unilateral change without the right to do so. Is that change reasonable? The reason being that the employee is vulnerable and therefore should retire! This is not reasonable, as the manager’s decision distorts public health guidelines to justify his decision,” Mr Dalton wrote.

He noted that Mr Spencer had suffered “very significant financial loss” as a result of his employer’s conduct despite making “extensive efforts” to mitigate it.

Mr Dalton said it was highly likely Mr Spencer would have worked until the age of 70 but for his dismissal and highly unlikely that he would now be re-employed.

He ruled the complainant had been unfairly dismissed and awarded him €31,558 for the unfair dismissal - a sum equivalent to 18 months of his gross annual salary of €21,039.

He ruled Mr Spencer’s complaint under the Employment Equality Act was “essentially the same claim” and that it therefore amounted to a parallel claim which he had to dismiss as not well founded.