The Equality Tribunal
PENSIONS ACTS, 1990 - 2004
EQUALITY OFFICER’S DECISION DEC-P2008-001
PARTIES
Ms Nora Shanahan
(Represented by SIPTU)
AND
HSE West (St Joseph’s Hospital)
(Represented by HSE – Employers Agency)
1. DISPUTE
1.1 This dispute concerns a claim by Ms Nora Shanahan that she was discriminated against by not being allowed to join an occupational pension scheme and by being allowed to join but treated less favourably within the occupational pension scheme on the grounds of gender, marital status and family status in terms of section 66 of the Pension Acts, 1990 – 2004 and contrary to section 70 of those Acts.
1.2 The complainant referred her claim of discriminatory treatment to the Director of the Equality Tribunal on 8 March 2006 under the Pensions Acts 1990 - 2004. In accordance with her powers the Director then delegated the case to Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Submissions were sought and received from the parties, and a hearing was held on 25 February 2008.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The Complaint submits that she started work as a psychiatric nurse with the respondent in February 1963 and was forced to resign on 20 August 1968 because of the public service marriage bar, which she claims was direct discrimination on gender grounds.
2.2 The marriage bar was removed in July 1973 but the complainant was not offered her job back. The complainant submits that the lack of family friendly working arrangements until 1985 were barriers to her returning to work which amounted to indirect discrimination on the grounds of gender, marital status and family status.
2.3 The complainant submits that she returned to work in February 1986 and repaid the Marriage Gratuity (with interest) she had received when she resigned in 1968. This meant she received credit for her previous service (1963-1968) toward her pension. She then worked until she resigned in November 2006, three years before the retirement age of 65. The occupational pension scheme for psychiatric nurses doubles each year of service after twenty years which allows them to retire from 55 years of age provided they have 30 years service, with a full pension entitlement of 40 years service. The complainant submits that she had to work seven years past 55 and then only accrued 32½ years service entitlement toward her pension. The complainant submits that she suffered indirect discrimination because the break in service caused by the marriage bar meant that she was not able to take full advantage of this provision in the occupational pension for psychiatric nurses, whereas the majority of colleagues able to take full advantage of this provision are male.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent rejects the allegations of discrimination in relation to their occupational pension scheme
3.2 The respondent submits that the marriage bar was applied throughout the public service and was discriminatory but not illegal at that time, as it was removed before the Employment Equality Act, 1997 came into force. There were no barriers to the complainant returning to work when the marriage bar was lifted in 1973 and large numbers of female nurses returned during this period. They submit that job sharing was introduced in 1985 but the lack of job sharing before then was not discriminatory. Furthermore, they submit that the issue of the lack of flexible work options falls outside the scope of the Pensions Acts, which is concerned with the access to and provisions within occupational pension schemes.
3.3 The respondent submits that all rules of their occupational pension scheme apply equally to males and females but under the scheme pension entitlement can only be based on actual service and the non-accrual of pension rights during non employment is not discriminatory. The provision which allows psychiatric nurses to get double entitlement after twenty years service is meant to take account of the nature of the work involved in the direct care of psychiatric patients and applies equally to both female and male psychiatric nurses.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issues for me to decide is whether the complainant was discriminated against by not being allowed to join an occupational pension scheme and by being allowed to join but treated less favourably within the occupational pension scheme on the grounds of gender, marital status and family status in terms of section 66 of the Pension Acts, 1990 – 2004 and contrary to section 70 of those Acts. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties.
4.2 The claimant contends that because she had to give up work because of the marriage bar and her return to work was delayed due to the lack of flexible work arrangements she was unable to get a full pension. However, it is not the role of my investigation to look at alleged discrimination regarding the complainant’s access to employment, as if it were a claim under the Employment Equality legislation. I would point out however that the Supreme Court in Aer Lingus v The Labour Court¹ decided that “The Employment Equality Act 1977 does not have retrospective effect and consequently a difference in treatment occurring before the coming into force of the Act is not capable of constituting discrimination within the meaning of the Act”. This claim is made under the Pensions Acts, 1990 - 2004 which refers to occupational pension schemes in relation to employed persons and it is for me to investigate whether the respondent’s occupational pension scheme was discriminatory. I conclude that the complainant has failed to provide any evidence that she was stopped from joining the occupational pension scheme when she was in employment.
4.3 The only evidence put forward by the complainant that she may have been treated lessfavourably within the occupational pension scheme relates to the particular provision of the scheme for psychiatric nurses that allows them to retire from age 55 onwards when they have completed 30 years service. The complainant contends that she suffered indirect discrimination because her break in employment meant she was unable to take full advantage of this provision.
Section 68 (1) of the Pensions Acts, 1990 – 2004 states:
“For the purposes of this Part indirect discrimination occurs where an apparently neutral provision of the scheme concerned puts people who differ in a respect mentioned in section 66(2) (grounds) at a particular disadvantage in respect of any of the discriminatory grounds compared with other persons, being members or prospective members of that scheme.
The complainant argues that she was at a ‘particular disadvantage’ and suffered indirect discrimination as more male colleagues would reach 30 years service at age 55 as they would be less likely to take a break in the career and she was unable to achieve a full pension by age 55 because of her break in employment and that this took place because she was a woman. I accept the argument that more married women would be disadvantaged by taking breaks in their career and therefore notbenefiting from this provision. I therefore conclude that a prima facie case of indirect discrimination on the grounds of gender and marital status has been established.
4.4 However, the legislation offers the respondent a defence in section 68(2) which states:
“Where indirect discrimination occurs, the rule of the scheme concerned shall be treated as being in breach of the principle of equal treatment in relation to the persons referred to subsection (1) on the discriminatory ground in respect of which the disadvantage is claimed unless the rule is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”
The respondent contends that the provision in the scheme for psychiatric nurses giving double years after 20 years service was objectively justified as it was a benefit not given to other nurses and was intended to recognize the onerous nature of the work of psychiatric nurses. Therefore, in their view, the provision of the occupational scheme was a legitimate aim to allow psychiatric nurses to retire on full pension after 30 years service, rather 40 years service for other nurses, regardless of gender.
4.5 I conclude that the intention of the provision is to reflect the onerous work of psychiatric nurses and to allow someone to retire when they have worked for 30 years rather than 40 as is the norm in public service nursing. Therefore someone with less service than 30 years service would have less need of such a benefit. In these circumstances I find that the rule of the occupational pension scheme is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, within the meaning of section 68(2).
5. DECISION
On the basis of the foregoing I find that the respondent did not breach the principle of equal pensions treatment in relation to an occupational pension scheme and therefore did not discriminate against the complainant on the grounds of gender and discriminatory dismissal took place in terms of section 70 of the Pensions Acts, 1990 - 2004.
_________________
Hugh Lonsdale
Equality Officer
12 June 2008
¹ Aer Lingus Teoranta v The Labour Court, The Supreme Court Judicial Review [1990] ILRM 485