A man in his 70s who applied to work as a contact tracer and was turned away by a HSE contractor has lost his claim for age-based discrimination.
A Workplace Relations Commission (WRC) adjudicator wrote that the man could be “lauded for his enthusiasm and willingness” but found the contractor rightly followed the public health advice in place at the time on cocooning.
Rom Hyde’s complaint under the Employment Equality Act against the staffing agency CPL Healthcare Ltd was rejected in a decision published on Thursday morning by the WRC.
Mr Hyde alleged he was discriminated against on the grounds of age when his application was closed off in October 2020.
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CPL Healthcare maintained the public health advice directing those aged over 70 to cocoon was an “objective justification” for ending the complainant’s application and denied any discrimination.
Mr Hyde said he emailed the HSE looking for a position on the track and trace team and got an email from CPL Healthcare on October 7th, 2020 stating the HSE had an “urgent requirement for contact tracers”. He said he filled out an application form and a Garda vetting form as requested.
On November 5th that year, he said he got another email from CPL Healthcare. Noting that he had indicated his age as “over 70″ on his application, the email said Mr Hyde was “in a category of high risk that classes him as highly vulnerable”, he said. He was told his application was not being progressed, he said.
Mr Hyde said he wrote back to say he “felt he was discriminated against because of his age” because he felt he was “healthy and more than capable of doing the job”. He then followed that up with a letter warning he would seek redress under the Equality Acts.
Ibec employer relations executive Sophie Crosbie, who appeared for CPL Healthcare, said track and trace staff were not working remotely at the time of Mr Hyde’s application but were on site together.
She said CPL Healthcare had written back to Mr Hyde the following February telling him that both the public health advice and its own occupational health advice said it “could not expose anyone in a ‘very high risk’ category to the risk of being exposed to the virus.
The company told Mr Hyde it had investigated whether the contact tracing work could have been done from home but found it was impossible at the time, Ms Crosbie said.
“The fundamental reason for not progressing the complainant’s application was not his age, but a condition attaching to his age,” Ms Crosbie wrote in a legal submission. She added that other categories of employees vulnerable to the Covid-19 virus “also had their applications halted”.
Adjudicating officer Thomas O’Driscoll found CPL Healthcare’s actions served the “legitimate aim” of protecting the health and safety of employees and potential employees.
Mr O’Driscoll added that the temporary exclusion of those aged 70-85 was a “genuine and determining occupational requirement at the time”.
He noted that the restriction was lifted when vaccines against Covid-19 became available.
“It would have been an absurdity if an agency employed by the HSE in the frontline battle against Covid-19 should themselves, in their employment practice, disregard the medical advice relied upon to combat the infection,” he said. Mr O’Driscoll found CPL Healthcare had established it had a right to avail of an exclusion in the Employment Equality Act and found Mr Hyde had not been discriminated against.
