The Equality Tribunal
PENSIONS ACTS, 1990 - 2004
EQUALITY OFFICER’S DECISION DEC-P2008-002
PARTIES
Ms Dolores Keeley
(Represented by Noel Keeley)
AND
Department of Education & Science
(Represented by the Chief State Solicitor’s Office)
File reference: EE/2005/337
Date of issue: 16 October 2008
1. DISPUTE
1.1 This dispute concerns a claim by Ms Dolores Keeley that she was discriminated against by the Department of Education by not being allowed to join an occupational pension scheme on the grounds of gender in terms of section 66 of the Pension Acts, 1990 – 2004 and contrary to section 70 of those Acts.
1.2 The complainant referred a claim to the Director of the Equality Tribunal on 14 September 2005 under the Pensions Acts 1990 - 2004. In accordance with her powers the Director then delegated the case to Conor Stokes, 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. The Equality Officer’s investigation commenced on 12 May 2008 and a hearing was held on 7 July 2008. A number of submissions were made by both parties following the hearing, the latest being received on 10 October 2008. These submissions have been taken into consideration along with all written and oral evidence presented to the Tribunal when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The Complaint submits that she started work as a school secretary in August 1978. In December 1985 she was offered membership of a contributory pension scheme by the respondent.
2.2 The complainant submitted that she was advised at that time by the school principal that she would be able to join at a future date. Following this advice, the complainant declined membership and completed Form CP1 to that effect. The complainant also submitted that no explanatory documentation was provided to her or to the school at that time.
2.3 The complainant submitted that on a number of occasions since 1985, she has attempted to join the contributory pension scheme and to buy back previous service but has been denied this option by the respondent. The complainant states that the respondent indicated that her decision of December 1985 is irrevocable.
2.4 The complainant submitted that despite several attempts to join the pension scheme, the continued refusal to allow her to join amounts to indirect discrimination on the basis of her gender. In support of this proposition, the complainant submitted that almost all (over 98%) of the possible beneficiaries of this pension scheme are female. The complainant also submitted that teaching staff and other public servants who opted out of their occupational pension schemes at the outset are being given the opportunity of joining at a later date. The complainant further submitted that teaching staff have a higher proportion of male members and that accordingly she is the subject of indirect discrimination on the basis of her gender.
2.5 The complainant submitted that she was subject to indirect discrimination whereby an apparently neutral rule has put persons of a particular gender at a particular disadvantage in respect of access to a pension scheme compared with other employees of the respondent employer.
2.6 The complainant submitted that it was only following attempts to pursue the matter with the relevant authorities that the respondent furnished explanatory documentation to her.
2.7 The complainant submitted that since she tried unsuccessfully to access the contributor scheme, the respondent has allowed other individuals to access the scheme. The complainant submitted documentation concerning a female who was allowed to join at a later date.
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 submitted that prior to 1985 a pension scheme did not exist for clerical officers employed under the 1978/79 employment scheme. Following discussions with the relevant trade union, the respondent introduced a contributory pension scheme. The scheme is compulsory for staff appointed to these posts after 2 October 1985 but for existing clerical staff, they were given a once-off opportunity to join the scheme.
3.3 The respondent submitted that on the introduction of the scheme, correspondence giving detailed information about the scheme, together with option forms, was issued to school authorities. The correspondence consisted of a circular letter and two memoranda, the first memoranda containing a paragraph which stated “An option, once made, may not be changed”. The respondent submitted that this was clear and unambiguous.
3.4 The respondent submitted that in the information provided to prospective members, it provided a contact address and ‘phone number for enquiries and therefore did not delegate the role of interpreting the scheme arrangements to any member of the school staff.
3.5 The respondent submitted that the claimant returned the completed option form to it, indicating the option not to join the contributory pension scheme. The respondent submitted that this decision was irrevocable and that this policy was consistent with standard public service pension policy. The respondent further submitted that it had taken all reasonable steps to inform the complainant of the implications of exercising that option.
3.6 The respondent also submitted that in recent years a number of clerical officers have indicated that they never received the original option forms. From checking its files, the respondent established that a small number of persons had not returned a completed option form nor submitted an acknowledgement in writing. On the basis of the absence of proof that they had received the original documentation they were recently given the option to join the scheme.
3.7 The respondent denied that it had discriminated against the complainant on gender grounds. In its operation of the rule that the option to join the scheme is irrevocable, it did not distinguish between male and female members, the rule is gender neutral and is applied in a gender neutral way. It submitted that the complainant’s claim discloses no evidence for discrimination on the ground of gender.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for me to decide is whether the complainant was subjected to indirect discrimination in relation to access to an occupational pension scheme on the grounds of gender 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 Section 68(1) the Pensions Acts defines indirect discrimination for the purposes of the Acts as occurring “where an apparently neutral rule of the scheme concerned puts persons (whether each of them is X or Y) who differ in a respect mentioned in section 66(2) at a particular disadvantage in respect of any of the discriminatory grounds compared with other persons, being members or prospective members of that scheme”.
4.3 Section 76 of the Pensions Acts 1990 to 2004 sets out the burden of proof which applies to claims under the Acts. It requires a complainant to establish, in the first instance, facts upon which they can rely in asserting that there has been a breach of the principle of equal pension treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to prove the contrary.
4.4 The complainant stated that the Department of Education is her employer for the purposes of this investigation. The Department of Education conceded that for the purposes of an investigation under the Pensions Acts 1990 to 2004, it could be deemed to be the respondent under Section 81E(4) of the Acts.
4.5 The complainant stated that she was offered the option to join the contributory pension scheme in 1985 but declined, in writing, to join at that time.
4.6 The complainant sought to join the contributory pension scheme at various stages thereafter but was not permitted to do so, on the basis that she had declined to join when given the option to do so. The complainant drew comparisons with the membership of the teacher’s contributory pension scheme and stated that teachers were allowed to join their pension schemes at a later stage. The complainant suggested that there was/is a higher proportion of male members/prospective members and therefore by not allowing her to join her pension scheme, the respondent was indirectly discriminating against her on the gender ground.
4.7 The complainant suggested that members/prospective members of the teacher’s contributory pension scheme could be considered as comparators in relation to this matter. Having considered this suggestion and the wording of Section 68(1) of the Pensions Acts, particularly the latter phrase – “compared with other persons, being members or prospective members of that scheme”, I find that the scope of S 68(1) does not allow comparators from other pension schemes to be taken into account.
4.8 The complainant submitted that the composition of members/prospective members of the pension scheme at issue were more than 98% female. The respondent suggested that the level was closer to 100%. In the circumstances, I have considered the issue of whether a hypothetical male comparator would have been treated any differently to the complainant in this issue. The complainant has not submitted any evidence which would indicate that an apparently neutral rule of the scheme (i.e. having completed and submitted the CP1 in writing) puts females at a particular disadvantage on the gender ground compared with males, being members or prospective members of that scheme.
4.9 From the foregoing information, I conclude that the complainant has not established facts upon which they can rely in asserting that there has been a breach of the principle of equal pension treatment such as to establish indirect discrimination. Accordingly, there is no shift in the burden of proof on to the respondent to prove otherwise.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that the complainant has not established a prima facie case of a breach of the principle of equal pension treatment and the complainant’s claim therefore fails.
_________________
Conor Stokes
Equality Officer
16 October 2008