A MAN AGED over 70 has failed in an age discrimination claim against a recruitment firm’s decision to reject his job application to work as a HSE contact tracer during the Covid-19 pandemic.

In dismissing Rom Hyde’s age discrimination claim against CPL Healthcare Ltd, Workplace Relations Commission (WRC) Adjudicator Thomas O’Driscoll found that the company’s decision not to recruit Mr Hyde as a HSE contact tracer was a measure that was necessary to achieve the aim of protection of the health of Mr Hyde and others.

Mr O’Driscoll found that Mr Hyde had established a prima facie case of discrimination on grounds of age under the Employment Equality Acts.

However, Mr O’Driscoll said that CPL Healthcare has availed of exclusions under the Employment Equality Act and he found that Mr Hyde was not discriminated against on age grounds by CPL Healthcare.

Mr O’Driscoll stated that at hearing, Mr Hyde accepted that the health and safety of fellow employees may trump any perceived discrimination in such an eventuality.

Mr O’Driscoll concluded that “it would have been an absurdity if an agency employed by the HSE in the front-line battle against Covid-19 should themselves, in their employment practice, disregard the medical advice relied upon to combat the infection”.

Mr O’Driscoll said that the medical advice from Mr Hyde’s practitioner was that he was fit and healthy.

Mr O’Driscoll stated that Mr Hyde in this case “can be lauded for his enthusiasm and willingness in pursuing work in the public interest at a very precarious time for society”.

He added: “However, the incontrovertible and widely accepted expert medical advice at the time of his job application was that those over 70 and in other groups were deemed medically vulnerable and were advised to stay at home, with minimal social contact”.

In 2020, Rom Hyde sent an email to the HSE for a position with its track and trace team.

In response on October 7th 2020, CPL Healthcare Limited contacted Mr Hyde advising him that “The HSE has an urgent requirement for contact tracers”and Mr Hyde filled out an application form.

On 5 November 2020, CPL Healthcare told Mr Hyde in an email that it noted that he was over 70 and that public health advice at the time directed those in the 70+ age bracket to cocoon.

CPL Healthcare stated that Mr Hyde was in a category of high risk that classed him as highly vulnerable and further stated that it was not progressing Mr Hyde’s application for the recruitment initiative.

In response, Mr Hyde emailed CPL Healthcare to say that felt that he was discriminated against because of his age when he considered himself to be healthy and more than capable of doing the job.

In response, CPL Healthcare stated that in conjunction with its Occupational Health guidelines it had carefully evaluated the specific risks presented by Covid-19 and that it was unable to sufficiently reduce the level of risk to “very high risk” category workers in accordance with its obligation to provide them with a safe place to work and therefore could not process Mr Hyde’s application at the time.

Mr Hyde brought an age discrimination case to the WRC and told the hearing that discrimination against over 70’s during Covid-19 “reached widespread proportions” and contended that medical professionals who spent all their lives administering medical services to patients were excluded from giving Covid-19 vaccines to the general public because they had crossed the 70-year threshold.

Mr Hyde contended that while age is calculated on a chronological basis, studies have shown that it is more important to judge a person on their biological age.

Mr Hyde contended that he has the fitness, health and capability to carry out the task of Contact Tracer.

In a letter to Mr Hyde, CPL Healthcare stated that they had investigated whether the role could be undertaken from home but concluded that due to the occupational requirements of the role this option was not possible at the time.

CPL Healthcare argued that that the fundamental reason for not progressing Mr Hyde’s application was not his age, but a condition attaching to his age i.e. a person of this age is more vulnerable to infection from Covid-19 and if he/she was to get infected the consequences are potentially significantly more serious compared to someone under this age.