DEC-E2005-011 Full Case Report

Mc Grane (represented by the PSEU) -v- The Department of Finance and the Department of Foreign Affairs (represented by Anthony Kerr B.L. instructed by The Chief State Solicitor's Office)

CLAIM
1. The case concerns a claim by Ms. Geraldine Mc Grane that the Department of Finance and the Department of Foreign Affairs directly discriminated against her on the grounds of marital status and family status in terms of section 6(2)(b) and (c) of the Employment Equality Acts 1998 -2004 and in contravention of sections 8 and 29 of the Acts in relation to her conditions of employment and pay.
BACKGROUND
1. The complainant remains married to her husband (from whom she is separated) and is currently residing with a new partner. The complainant has custody of a child by her marriage between her husband and herself. She also has a child by her current partner, who has a child by his former marriage and in respect of whom custody is shared with his former wife. When on a posting to Brussels, the complainant was advised that she was entitled to receive the “married unaccompanied” allowance for herself. She was also entitled to receive the child foreign allowances in relation to her own two children but was not entitled to receive one in respect of her partner’s child from his former marriage. Her partner and his child were also not issued with diplomatic passports. She claims that she has been discriminated against on the marital and family status grounds. The respondents deny the allegation of discrimination. They also submit that section 34(1) of the Employment Equality Act, 1998 allows employers to provide certain benefits or additional benefits which take account of the fact that the member of staff is married and/or has children and treat such members of staff more favourably than other employees who do not have that family or parental status.
2. The complainant referred a complaint under the Employment Equality Act 1998 to the Director of Equality Investigations on 13 June 2003. On 19 January 2004, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A submission was received from the complainant on 13 June 2003 and from the respondent on 16 July 2004. An additional submission was received from the complainant on 19 November 2004. A joint hearing of the claim was held on 1 December 2004.
SUMMARY OF THE COMPLAINANT’S FIRST WRITTEN SUBMISSION
1. The complainant submits that she has been discriminated against on the marital status and family status grounds. The complainant is legally married, has a child of that marriage and is now in a long term relationship and has a child of that relationship. Her partner has a child from his former marriage. The complainant is of the view that this family unit of 2 adults and 3 children under 21 years is a single family unit and as such should be treated in her assignment to the Permanent Representation in Brussels as if the two adults are spouses with the ‘married’ allowance rates applying.
2. She submits that she is separated from her husband since 1993/94 and has shared custody of their daughter. She has been living with her current partner since 1995 and they have a four year old son. She submits that her partner is divorced and shares custody of his daughter.
3. The complainant submits that Foreign Service Allowances are granted in respect of the position and entitlements are paid under the categories of “married”, “married unaccompanied”, and “single”. She submits that her Department was instructed not to pay any allowances in respect of her partner and his daughter because they are not married to each other. The Department of Foreign Affairs also advised her Department that her partner and his daughter would not be given diplomatic status but the status is granted to the rest of her family.
SUMMARY OF THE COMPLAINANT’S SUPPLEMENTARY SUBMISSION
1. The complainant remains married to her husband (from whom she is separated) and is currently residing with a new partner. The complainant has custody of a child by her marriage between her husband and herself. She also has a child by her current partner, who has a child by his former marriage and in respect of whom custody is shared with his former wife.
2. When on a posting to Brussels, the complainant was advised that she was entitled to receive the “married unaccompanied” allowance for herself. She is also entitled to receive the child foreign allowances in relation to her own two children but is not entitled to receive one in respect of her partner’s child from his former marriage. The point at issue is (i) whether the complainant should be eligible for the “married accompanied” allowance on the basis that she is currently co-habiting with her partner and (ii) whether she should receive a child foreign allowance in respect of her partner’s child from his former marriage.
3. The Cost of Living Allowance and Local Post Allowance are paid under the categories of ‘married’, ‘married unaccompanied’ and ‘single’. The complainant receives the ‘married unaccompanied’ rate. The Children’s Foreign Service Allowance is paid in respect of each dependent child under 18 years of age and children between 18 and 21 who are in full time education. It is paid irrespective of whether the child accompanies the officer on post or remains in Ireland. In relation to the School Fees Assistance Scheme, officers accompanied by their children may be paid 100% of the cost of tuition fees for primary and secondary school or 50% of the cost of their children’s attendance at boarding school in Ireland. The complainant is entitled to receive the child Foreign Service allowances in relation to her own two children but not in respect of her partner’s child from his former marriage.
4. The points at issue are:
  1. Whether the complainant should be eligible for the “married accompanied” allowance on the basis that she is cohabiting with her partner;
  2. Whether she should receive a child Foreign Service allowance in respect of her partner’s child from his former marriage;
  3. Whether the complainant’s partner and his child by his former marriage ought to be eligible for diplomatic status.
  The essence of the complaint is that the complainant is being discriminated against on the grounds of marital status and/or family status.
5. The complainant refers to section 34 of the Act which provides for certain exceptions from the general rule in relation to discrimination. The complainant submits that any restrictions within the Act should be subjected to a narrow interpretation given that section 34(1) runs contrary to the overall purpose of the Act.
6. Section 34(1) states that it is not unlawful to provide a benefit in certain circumstances. In this instance, it is not the provision of a benefit which is in dispute but rather the Department of Foreign Affairs refusal to recognise the additional expenses incurred by the complainant in the same way that these expenses are recognised in the case of staff with a different marital and/or family status. The cost of living allowance, the local post allowance and the Children’s Foreign Service allowance are tax free allowances paid in respect of additional expenses incurred by an officer arising from their foreign posting.
7. The Union considers that it is highly questionable whether allowances which are not regarded as “benefits” by the Revenue Commissioners should be so regarded for the purposes of section 34(1) of the legislation. Accordingly, it is submitted that section 34(1) has no application in this instance. Furthermore, in the event that section 34(1) was interpreted so as to allow employers to discriminate between couples who are married and couples who are not, this would allow such an extensive “carve out” of the 1998 Act that it must be assumed that this could not have been the legislature’s intention.
8. The Union submits that the Department’s practice is not consistent with the practice of equivalent Departments in other common law jurisdictions such as the United States, New Zealand, Australia and Canada where in those jurisdictions, couples in a de facto relationship (including same sex partner) are treated in the same way as marital partners.
9. It is the Union’s view that it appears difficult to conclude that section 34(1)(b) permits positive discrimination to or in respect of children because of the difference between terms ‘member of the family’ and ‘family status’ as defined in the Act. If the view is taken that protection of section 34(1)(b) would only appear to apply where a distinction is made on the basis of biological parenthood, then the Department’s practice does not fall within the exception and is contrary to the 1998 Act on the grounds of marital status.
10. On the issue of diplomatic status, the Union understands that a diplomatic passport can be made available to the members of the family of a diplomatic agent forming part of his household and it is up to a State to establish rules to determine who is part of that household. In relation to the complainant, her partner is clearly part of her household and her partner’s child forms part of that household. Her case is that she is being discriminated against on the grounds of marital status in relation to the non provision of a diplomatic passport to her partner and his child.
SUMMARY OF THE RESPONDENT’S SUBMISSION
1. The Department of Foreign Affairs (the Department) operates a system of foreign service allowances which are payable to staff assigned to serve abroad in Ireland’s diplomatic missions. The main elements are Cost of Living Allowance, Local Post Allowance, Representational Expenses, Rent Allowance, Children’s Foreign Service Allowance and School Fees Assistance scheme.
2. Staff are categorised as ‘single’, ‘married’, or ‘married unaccompanied’. The categorisation determines both the level of allowance and other benefits to which the particular member of staff may be entitled. Marital status is taken into account in the payment of both ‘Cost of Living Allowance’ and ‘Local Post Allowance’ with “married unaccompanied” members of staff being entitled to one third of the difference between the “single” and “married” rates.
3. It is the case that the Department does not include the non-marital partners for the purpose of these allowances. It is also the case that the Department is not in a position to recognise the complainant’s partner’s child from his previous marriage for the purpose of paying the Foreign Service Allowance. However, section 34(1) of the 1998 Act provides in relevant part that, in relation to all of the discriminatory grounds excluding gender, nothing in the Act shall make it unlawful for an employer to provide “a benefit to or in respect of a person as a member of an employee’s family”. The term “member of the family” is defined in section 2 of the 1998 Act as “(a) that person’s spouse, or (b) a brother, sister, uncle, aunt, nephew, niece, lineal ancestor or lineal descendant of that person or that person’s spouse.”
4. The Department submits that the aforementioned provisions of the 1998 Act allows employers to provide certain benefits or additional benefits which take account of the fact that the member of staff is married and/or has children and treat such members of staff more favourably than other employees who do not have that family or parental status.
5. Similar considerations apply to the granting of “diplomatic status” to the complainant’s partner and his child. In this regard, the Equality Officer’s attention is drawn to Articles 36, 37, 39 and 40 of the Vienna Convention on Diplomatic Relations 1961 (made part of domestic law by the Diplomatic Relations and Immunities Act 1967) which confer certain rights and privileges on members of the “family” forming part of a diplomatic agent’s household.
6. The Equality Officer’s attention is drawn to section 2(3) of the 1998 Act which provides that a person such as the complainant is deemed to be an employee employed by the State. The respondent Departments submit that the Equality Officer dismiss the complainant’s complaint on the basis that section 34 of the 1998 Act permits the difference in treatment between her and her named married comparator.
CONCLUSIONS OF THE EQUALITY OFFICER
1. In this case, the complainant alleges that the respondents directly discriminated against her on the marital status and family status grounds in relation to her pay and conditions of employment by refusing to pay her the married allowances in respect of her partner and his daughter and by refusing to confer diplomatic status on them. The complainant in this case was successful in being selected as Third Secretary, Department of Foreign Affairs and was posted to the Permanent Representation, Brussels for the duration of the Irish Presidency of the European Union. She was therefore seconded from the Department of Health and Children to the Department of Foreign Affairs. The complainant is a Civil Servant and is an employee of the State. I will therefore consider whether the State directly discriminated against the complainant on the marital status and family status grounds in terms of section 6(2)(b) and (c) of the Employment Equality Acts 1998-2004 and in contravention of section 8 and 19 of the Acts. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
2. Section 6(1) of the Employment Equality Acts 1998-2004 provides that:
  
  “…. discrimination shall be taken to occur where-
  (a) a person is treated less favourably than another person is, has been or would be
  treated in a comparable situation on any of the grounds specified…...”
  
  Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
  
  (b) that they are of different marital status (in this Act referred to as “the marital status ground”),
  
  (c) that one has family status and the other does not (in this Act referred to as “the family status ground”),
3. The complainant was assigned to the permanent representation in Brussels for a fourteen month period from June 2003. She claims that she has been discriminated against on the marital and family status grounds in relation to the payment of allowances to her in respect of her partner and his child and also in relation to the failure to grant diplomatic passports to her partner and his child. She submits that a diplomatic passport entitles a person to an identity card which people residing in Belgium are obliged to have in their possession at all times and her partner and his child were not issued with identity cards. It is my understanding that officers who are going on posting abroad are issued with Irish Diplomatic passports and the issue of passports is therefore governed by Irish domestic law. The Vienna Convention on Diplomatic Relations 1961 governs the matter of privileges and immunities to be afforded to diplomatic officers and their families whilst on posting. The Employment Equality Acts 1998-2004 are concerned with complaints of discrimination against employers and indeed, the complainant has not raised the issue of Diplomatic or Service visas which are issued by the receiving State when on a mission.
4. I will deal firstly with the nature of the claim of discrimination referred on the marital status ground. For the purposes of the Act, “marital status” means ‘single, married, separated, divorced or widowed;’. Under the system of allowances, an officer is categorised as “single”, “married” or “married unaccompanied”. This means that in the payment of allowances, the complainant receives the “married unaccompanied” rate which is one third of the difference between the single and married accompanied rates. She is effectively being treated as a married person who is unaccompanied because she is a separated person whose ex-husband is not living with her in Brussels. The complainant who is cohabiting with her partner is being treated as a separated person in the granting of allowances and the conferral of diplomatic status and she considers that she should be treated as married to her partner. The complainant who is of a particular marital status can only compare herself with someone of a different marital status within the definition of marital status in the Act.
5. For example, a married person may compare his/her treatment or pay to the treatment or pay that a single person is receiving or a widowed person may compare himself/herself to a married person. The complainant who is separated and is a cohabitee in a new relationship is alleging that she was treated less favourably than a married person in relation to the granting of allowances whilst serving abroad on a diplomatic mission and in relation to the conferral of diplomatic status. The Act does not distinguish between a separated person who has formed a new long-term relationship (cohabiting) and one who has not. The complainant can compare herself under the Act as a separated person with a person who is married or single or widowed or divorced. However, she is not being treated less favourably in the same relevant circumstances as any of those persons. ‘Cohabitee’ is not included as a recognised marital status in the definition of marital status and the complainant cannot compare herself with someone who is married in order to determine whether she is receiving equal treatment or equal pay with that person in accordance with the provisions of the Employment Equality Acts, 1998-2004.
6. It appears that the issue of including cohabiting couples within the remit of the Act was discussed on the passage of the Employment Equality Bill, 1997 through the Oireachtas. The Minister for Justice at the time expressed the view that:
  
  “The definition of marital status in the Bill is standard and it draws on legally recognisable areas. It would be inappropriate to introduce in the Bill a new status which does not have any legal basis. It is not my intention to add cohabitation as a category of marital status. …. A person who is cohabiting is covered as having marital status because the individual is either single, married, separated, divorced or widowed. The categories are covered by the present definition which has a basis in law and has been commented on judicially...
  
  This legislation seeks to ensure equality in employment and to eliminate prejudice and discrimination. It does not seek to change the marital status of individuals or provide for different types of marital status. It utilises long recognised marital status positions to elaborate the anti-discrimination measures in that context.”
7. I will proceed to deal with the nature of the claim referred on the family status ground. Again, referring to section 6(1) of the Act, discrimination shall be taken to occur where one is treated less favourably than another on any of the grounds referred to in section 6(2). Discrimination is prohibited by the Act on the basis:
  
  that one has family status and the other does not (in this Act referred to as “the family status ground”),
  
  For the purposes of the Act, ‘family status’ means ‘responsibility –
  
  (a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or
  
  (b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,
  
  and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;’
8. A person can therefore be regarded as having family status under either paragraph (a) or (b). In terms of subsection (a), a person can claim family status as a parent or person in loco parentis and it appears that the latter would apply to the complainant in respect of her partner’s daughter. The complainant who has family status is claiming that she is less favourably treated than someone of a different family status as the respondents do not recognise her partner’s daughter from a previous relationship in the granting of allowances or diplomatic status. The complainant who has family status can only compare herself with someone who does not have family status. The complainant has not shown how she has been treated less favourably than someone who does not have family status and is essentially claiming that she has been treated less favourably than someone with a different kind of family status, i.e. one arising from being a parent as opposed to in loco parentis. I find that the complainant’s claim does not come within the terms of the Employment Equality Acts 1998-2004 as it is a claim concerning different types of family status and is not a claim based on family status being compared with the lack of family status.
9. I must also consider section 34 of the Act which provides in relation to the discriminatory grounds excluding gender:
  
  nothing in this Part or Part II shall make it unlawful for an employer to provide-
  1. a benefit to an employee in respect of events related to members of the employee’s family or any description of those members,
  2. a benefit to or in respect of a person as a member of an employee’s family,
  3. a benefit to an employee on or by reference to an event occasioning a change in the marital status of the employee, or
  4. to an employee who has family status a benefit intended directly to provide or assist in the provision, during working hours, of care for a person for whom the employee has responsibility as mentioned in paragraphs (a) and (b) of the definition of “family status” in section 2(1).
    
    ‘Member of the family’ in relation to any person is defined in section 2(1) as
    1. that person’s spouse, or
    2. a brother, sister, uncle, aunt, nephew, niece, lineal ancestor or lineal descendant of that person or that person’s spouse.
10. In accordance with section 34(1)(b), employers may, inter alia, provide a benefit to an employee or in respect of a person as a member of an employee’s family. The complainant raises the issue of whether the allowances in question amount to benefits and submits that “It could be held that the allowance is not a ‘benefit’ in that it does not provide any advantage to an Officer, but merely compensated them for the deleterious financial effects of having to be posted outside Ireland.” The issue for the complainant appears to be that the allowances are in the nature of remuneration for expenses incurred. The nature of a ‘benefit’ is not defined by the Act and it could, inter alia, therefore be a benefit in the nature of remuneration or in relation to an employee’s terms and conditions of employment. The ordinary meaning of ‘benefit’ in the New Shorter Oxford Dictionary includes ‘A kind deed; a favour, gift; a benefaction.’ It appears to me having considered the ordinary meaning of benefit that the State has conferred a benefit on the complainant by paying certain allowances in respect of her children and has conferred a benefit on her children by granting them diplomatic status. It has not however afforded her the same benefit by paying allowances in respect of her partner or his daughter or afforded the benefit of diplomatic status to them.
11. In accordance with section 34(1)(b) and the definition of a member of the family in section 2(1) of the Act, an employer may confer a benefit on an employee in respect of their spouse or confer a benefit on the employee’s spouse as a member of the employee’s family. Co-habiting partner is not included in the definition of member of the family. An employer may also confer a benefit on an employee in respect of a lineal descendant of the employee or the employee’s spouse or confer a benefit on a person as the lineal descendant of the employee or the employee’s spouse. Lineal descendant of a co-habiting partner is not included in the definition of a member of the family. Accordingly, it is not unlawful for an employer to provide a benefit to a person as a member of an employee’s family which includes certain persons whilst at the same time excluding others who are not included in the definition of ‘member of the family’ in the Employment Equality Acts 1998-2004.
12. 6.12 The complainant submitted that the Children’s Foreign Service Allowance “is ordinarily paid in respect of each dependent child under 18 years of age and children between 18 and 21 who are in full time education. It is designed to compensate officers for the additional childcare expenses that arise as a result of their educational duties…..”
  
  She further submitted:
  
  “To the extent that the foreign child allowance may be an allowance within the contemplation of section 34(1)(d), (that is, a benefit intended to provide or assist in the provision , during working hours, of care for a person for whom the employee has responsibility), it seems that there would be a breach of the Act in circumstances where this allowance was not also extended in respect of those individuals, under the age of 18 years, in respect of whom the employee is a person in loco parentis.”
13. Section 34(1)(d) provides that nothing in Part II or Part IV of the Act shall make it unlawful for an employer to provide:
  
  To an employee who has family status a benefit intended directly to provide or assist in the provision, during working hours, of care for a person for whom the employee has responsibility as mentioned in paragraphs (a) and (b) of the definition of “family status” in section 2(1).
  
  If the Children’s Foreign Service allowance amounts to a benefit within the meaning of section 34(1)(d) of the Act, the complainant has been provided with a benefit in respect of her two children but not in respect of her partner’s child from a previous relationship. Section 34(1)(d) does not make it unlawful under the Act to provide to an employee who has family status a benefit which is intended to provide or assist in the provision of care for a person or persons for whom the employee has responsibility as a parent or a person in loco parentis. However, the section does not impose an obligation to provide a benefit in respect of all children for whom the employee has responsibility as a parent or a person in loco parentis. On the contrary, it does not make it unlawful if an employer does provide such a benefit to an employee to provide or assist in the provision of care for a person for whom the employee has such responsibility. Again, an issue arises in relation to the Acts which allow a comparison by a person having family status with a person who does not have family status and not a comparison between different types of family status
14. I note that the High Court has had regard to the special position of marriage under the Constitution. Mr. Justice Kelly in the case of Ennis v. Butterly referred to Article 41 of the Constitution and stated:
  
  “In that Article, the State recognises the family as the natural primary and fundamental unit group of society and as a moral institution possessing inalienable and imprescriptable rights antecedent and superior to all positive law. The State pledges itself to guard with special care the institution of marriage, on which the family is founded and protect it against attack. …… Given the special status of marriage and the family under the Irish Constitution, it appears to me that the public policy of this State ordains that non-marital cohabitation does not and cannot have the same constitutional status as marriage.”
  
  He proceeded to consider whether cohabitation agreements are unenforceable and considered that they were “since otherwise the pledge on the part of the State, of which this Court is one organ, to guard with special care the institution of marriage would be much diluted. To permit an express cohabitation contract (such as pleaded here) to be enforced would give it a similar status in law as a marriage contract. It did not have such a status prior to the coming into effect of the Constitution, rather such contracts were regarded as illegal and unenforceable as a matter of public policy. Far from enhancing the position at law of such contracts the Constitution requires marriage to be guarded with special care. In my view, this reinforces the existing common law doctrines concerning the non-enforceability of cohabitation contracts. I am therefore of opinion that, as a matter of public policy, such agreements cannot be enforced.”
15. The Constitution Review Group has stated in relation to Article 41 that “The effect of this Article is that the State may not penalise marriage or the married state….. It would also appear to provide constitutional justification for legislation favouring the married state.”
  
  The Group recommended amending Article 41.3 to clarify that it “should not prevent the Oireachtas from legislating for the benefit of families not based on marriage or for the individual members thereof.”
  
  Such an amendment has not taken place to date.
16. According to the 2002 Census, some 8% of all family units in Ireland now consist of cohabiting couples (with or without children). Whilst the operation of the system of foreign service allowances and the conferring of diplomatic status by the Department of Foreign Affairs may seem unfair to the complainant in the light of its failure to take account of modern day relationships and families, it does not amount to discrimination within the meaning of the Employment Equality Acts 1998-2004. I note that the Law Reform Commission has published a Consultation Paper on the Rights and Duties of Cohabitees which makes substantial recommendations for the reform of the law concerning cohabitees. The reforms being proposed would apply to ‘qualified cohabitees’ defined as persons who live together in a ‘marriage like’ relationship for a continuous period of three years or, where there is a child of the relationship, for two years. Of course, we must await the Law Reform Commission’s report on the matter and any consequential legislative changes arising from the report.
DECISION
1. On the basis of the foregoing, I find that the complainant’s claim in respect of marital and family status do not come within the terms of the Employment Equality Acts 1998-2004.
2. I find that the State has not acted unlawfully by providing a benefit to the complainant’s children as members of her family and by providing a benefit to the complainant in respect of her children as members of her family whilst at the same time excluding others who are not included in the definition of ‘member of the family’ in section 2 of the Employment Equality Acts 1998-2004.

Mary Rogerson ,
Equality Officer,
25 February 2005