Focus Ireland ordered to pay €22,000 to 68-year-old 'humiliated' mediator for unlawfully retiring him

Adjudication Officer, Kevin Baneham found that Focus Ireland discriminated against Joseph McGrath because of his age.
Focus Ireland ordered to pay €22,000 to 68-year-old 'humiliated' mediator for unlawfully retiring him

Homeless charity, Focus Ireland has been ordered to pay a 68-year-old mediator €22,000 for unlawfully ‘retiring’ him at the age of 66.

At the Workplace Relations Commission (WRC), Adjudication Officer, Kevin Baneham found that Focus Ireland discriminated against Joseph McGrath because of his age in not allowing him to continue beyond June 20, 2018 after he turned 66 earlier in 2018.

Mr Baneham found that Mr McGrath’s role with Focus Ireland "was ended through unlawful and less favourable treatment because of his age".

Mr McGrath stated that he had been recruited by Focus Ireland in 2016 to work on a new project involving family mediation to prevent young people entering homelessness.

Mr McGrath told the WRC that age should have been a positive and not a negative.

He stated that said that he felt “humiliated and hurt”, in particular as this was a role he had dreamed about.

Mr McGrath told the WRC that he had always wanted to work with young people who were on the margins and signed a two-year fixed term contract for the role.

Prior to his Focus Ireland role, Mr McGrath worked for a Government Department and previously in the Defence Forces and is in receipt of a pension earned by his service with the Defence Forces.

Mr McGrath stated that the project was for five years and its funding from a named philanthropy group was dependent on achieving outcomes.

An 'effective process...delivering effective change'

In January 2018, Focus Ireland published its second-year report on the project and concluded that the target for the year had been exceeded and "the mediation service has proven itself to be an effective process which is delivering effective change in the lives of young people and families referred to it".

Mr McGrath and his colleagues on the project worked with 25 families, who were almost all able to stay in the family home.

Mr McGrath stated that in February 2018, Focus Ireland emailed all staff to say that the retirement age had been raised to 66 and Mr McGrath received a phone call that day to acknowledge he would turn 66 on April 23, 2018.

Mr McGrath’s post was then advertised internally as part of an extension to the project and his application was not processed.

Mr McGrath stated that he applied again as an external candidate and he was told by Focus Ireland that he would not be considered because of his age.

Mr McGrath claimed that what had occurred was a flagrant breach of the Employment Equality Act and Focus Ireland had not advanced any objective justification for the ending of his employment.

Mr McGrath agreed that his contract would end at the expiry of the fixed term, but not considering him for the role was an act of discrimination.

In his findings, Mr Baneham found that the aims relied on by Focus Ireland relating to fitness and dignity of employees, were legitimate.

He stated:

I, however, find that the means used to achieve these aims were not appropriate or necessary. It was not necessary to use the blunt indicia of age when fitness could have been readily assessed in other ways.

Mr Baneham stated that the project, for example, was evaluated, and the line manager gave Mr McGrath a glowing reference.

Mr Baneham stated that while Mr McGrath had reached the revised retirement age, Mr McGrath advanced a strong case to continue for a further two years or for some other fixed term.

Mr Baneham stated that Mr McGrath had successfully rolled out the first two years of the project and that a mix of ages was appropriate in addressing the challenges faced by the project.

Mr Baneham stated that this possibility was not considered by Focus Ireland and “it only looked at the complainant’s age and this was disproportionate and, therefore, beyond what was necessary”.

Focus Ireland submitted that Mr McGrath was engaged on a two-year contract and could have no expectation of working beyond the term of the contract.

This was why there was no age of retirement stated in his contract of employment.

Focus Ireland stated that Mr McGrath’s employment ended at the end of the fixed-term and not because of his age.

At the hearing, Focus Ireland submitted that there was no discrimination in this case and that Mr McGrath’s application was not processed because he was then above the retirement age of 66.

Focus Ireland said that this was justified by Mr McGrath’s entitlement to pension.

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