04 Aug Age and Health Discrimination

This is an interesting case in which an employer suggested that it had cited age and heath to be the reason for a cleaner’s dismissal to assist her getting social welfare, rather than referring to the real gross misconduct reason of inappropriate behaviour with a resident in the disability service that she worked in. This was a costly mistake that resulted in an award of €10,000 being made against them for discrimination (ADJ – 00025681)

The 64 year old Complainant worked as a cleaner in a residential disability Centre unit for six months before she was dismissed summarily due to age and health conditions. The Complainant disputed that she had any underlying health conditions that impacted on her being able to do her job, and said that she was not questioned about her health at the commencement of her employment, nor had she misled her employer in any manner in this regard.

The Complainant said her employer inputted a disability to try and justify her dismissal, and said the only time she had been ill at work was when she was faint the previous week before her dismissal, when it was suggested to her that the reciprocation of a hug from a resident could be construed as sexual abuse. The Complainant said this was an unsubstantiated allegation that had not been investigated, and her employer instead chose to unfairly refer to her age and health as a reason to dismiss her, and no issues about her health had ever been raised during her employment.

The Respondent employer contended that the Complainant had asked to be let go, as the Centre in which she worked as a cleaner wanted to replace her after she had been seen hugging and kissing a resident, which was strictly against their rules.The Respondent said the matter was out of their hands and had offered the Complainant an alternative venue of a school to work in, but she wanted to go back to the residential Centre. The Respondent said the Complainant turned up at the residential unit with her son asking why she had been replaced, and had started to feel faint when there but refused to let an ambulance be called. A meeting was scheduled for a few days later to discuss the matter with the resident, which was considered to be gross misconduct. The Respondent said they had also learnt that the Complainant had breached another rule by bringing her pregnant daughter to the Centre and asked for money for her, and the staff did a collection.

The Respondent said they had the scheduled meeting and it was stated again that they could not send her back to the Centre to work, and when the Complainant told her about high blood pressure and headaches due to previous domestic abuse, she felt sorry for her and agreed to write a letter that would not refer to gross misconduct, in order that she could get social welfare, and the letter was translated into Romanian and signed by the Complainant. The Respondent said the next day she got a threatening message from the Complainant saying that she had been forced to sign the letter.

The Adjudicator noted that no investigation or disciplinary process had been carried out into the alleged gross misconduct which the Respondent was claiming was the real reason for the dismissal, and said that the reasons given by the Respondent were far from clear as to why the employment of the Complainant was terminated, having firstly said that the Complainant had resigned.

The Adjudication Officer took the view the letter of termination as issued was very clear with regard to health and age being the reason for dismissal, when in fact there had been no health issues during her employment, other than one minor fainting issue, and no evidence was provided to support that the Complainant’s age was detrimental to the performance of her role.

The Adjudication Officer determined that the Complainant had established a prima facia case of discrimination, with no objective evidence provided by the Respondent to justify it, and awarded the Complainant €10,000 in compensation.

Employers should note, as well as the clear breach of the equality legislation that occurred in this case by misrepresenting the reason for the dismissal, that had a proper investigation and disciplinary process been carried out into the alleged misconduct with the resident and other breaches of rules, a fair and less costly dismissal may well have been implemented.