Pensions Acts 1990 - 2008

Decision of Equality Officer

DEC-P2008-003

James Walsh

(represented by the Building and Allied Trades Union)

versus

Dublin City Council

File reference: EE/2006/123

Date of issue: 30 October 2008

1.               Dispute

1.1 This dispute concerns a claim by Mr. James Walsh that he is discriminated on the grounds of  marital status in terms of Section 66 2 (b) and in contravention of Section 70 of  the Pensions Acts  1990 – 2008. As an employee of Dublin City Council since 1980, Mr Walsh is a member of the Local Government Employees (Widows and Orphans Contributory Pension) Scheme. The scheme provides the spouse and children of a contributing member with an entitlement to a pension on the death of a member. Mr. Walsh is not married but is in a long-term relationship.  Under the rules of the scheme, a spouse’s pension may only be paid to the legal spouse of the member. A state marriage certificate is required when seeking entitlements.

1.2   Through his Trade Union, the complainant referred a complaint under the Pensions Acts to the Director of the Equality Tribunal on 12 June 2006. In accordance with her powers under Section 81J of the Pensions Act 1990 (as amended) [hereinafter referred to as the Act] which apply the relevant provisions of Employment Equality Acts to occupational benefit schemes, the Director delegated the case on 1 February 2008 to me, Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions. This is the date I commenced my investigation.  Submissions were received from both parties. A joint hearing was held on 23 April 2008. A further submission was received from the respondent on 18 July 2008.

2.               Summary of complainant’s case

2.1 Mr. Walsh has been an employee with Dublin City Council since 15 December 1980. He became an automatic member of Local Government Employees (Widows and Orphans Contributory Pension) Scheme. This scheme provides for the widow and children of a contributing member with an entitlement to a pension on the death of the members. Members of the scheme generally pay a contribution of 1.5% remuneration. The rate of the widow’s pension is one-half of the deceased member’s pension. The scheme restricts classes of beneficiaries to spouses and children of marriages which take place prior to leaving public sector employment. The complainant has been cohabiting with his partner for 17 years. He submits would like to be able make financial provision for her and their children on his death. The complainant acknowledges that the scheme allows him a refund of his contributions (albeit without compound interest and less tax) if he is still unmarried on retirement. However, the complainant maintains that he is being treated less favourably on the grounds of marital status, as his partner is not entitled to be a beneficiary under the terms of the scheme. He submits that this practice is outdated and ignores how the shape of Irish families has changed. The complainant also submits that in correspondence leading up to the hearing that Dublin City Council has never pointed out where the legislation provides for this practice to be lawful.

3.               Summary of the respondent’s case

3.1 As a defence the respondent submits that Section 72  of the Act [as inserted by Section 22 of the Social Welfare (Miscellaneous Provisions) Act 2004] applies to the Local Government Employees (Widows and Orphans Contributory Pension) Scheme:

(2) It shall not constitute a breach of the principle of equal pension treatment on the marital or family status ground for a scheme to provide more favourable occupational benefits where those more favourable benefits are in respect of any person in respect of whom, under the rules of the scheme, a benefit is payable on the death of the member, provided that this does not result in a breach of the said principle on the gender ground.

(3) It shall not constitute a breach of the principle of equal pension treatment on the marital status or sexual orientation ground to provide more favourable occupational benefits to a deceased member's widow or widower provided that it does not result in a breach of the said principle on the gender ground.

3.2 The respondent also submits that the complainant is entitled to reclaim his contributions if he remains unmarried upon retirement. This is a privilege denied to members of the subsequent local government survivor benefit scheme – the Local Government Employees (Spouses and Children Contributory Pension) Scheme. This is because the Spouses and Children Scheme cover post-retirement marriages and children born outside of marriage. In order to meet the additional costs of the wider definition of beneficiaries in this scheme in comparison to the Widows and Orphans scheme, the contribution refund arrangements were made more restrictive.

4.               Conclusions of the Equality Officer

4.1 The complaint concerns whether Mr. Walsh is being unlawfully discriminated against on the grounds of marital status because his long-term partner will not benefit from a widow’s pension if he predeceases her under the terms of the Local Government (Widows and Children’s Contributory Pension) scheme. In making my decision, I have taken into account all submissions both written and oral from both parties.

4.2 The Local Government (Widows and Children’s Contributory Pension) is covered by Section 65(1) of the Pensions Act 1990(as amended):

‘Occupational benefits’ means benefits (other than remuneration to which sections 19 and 29 of the Employment Equality Act 1998 apply), in the form of pensions, payable in cash or in kind in respect of—

(a) termination of service,

(b) retirement, old age or death,

(c) interruptions of service by reason of sickness or invalidity,

(d) accidents, injuries or diseases arising out of or in the course of a person's employment,

(e) unemployment, or

(f) expenses incurred in connection with children or other dependants,

and, in the case of a member who is an employee, includes any other benefit corresponding to a benefit provided by virtue of the Social Welfare Acts, the Maternity Protection Act 1994 or the Health Acts 1947 to 2001 which is payable to or in respect of the member as a consequence of his employment.

Section 66 (1) of the Act provides that discrimination shall be taken to occur where a person is treated else favourably than another person, is, has been or would be treated in a comparable situation on any of the discriminatory grounds. The discriminatory ground under which the complainant has taken his case is the marital status ground.  Marital status is defined in Section 65 (1) of the Act as ‘single, married, separated, divorced or widowed’. Cohabitee is not included in this definition. Therefore, as a cohabitee rather than a single person, the complainant cannot compare himself with someone who is married in order to determine whether he is receiving equal pension treatment with that person within an occupational benefit scheme governed by the Act.

4.3 I must also consider Section 72 of the Act (quoted previously in Paragraph 3.1) which says that it is not a breach of the principle of equal pension treatment on the sexual orientation or marital status ground for the surviving spouse of a deceased member to receive more favourable benefits, provided that a widower would be entitled to the same benefits as a widow and vice versa. As cohabitee is not included in the definition of marital status, I accept the respondent’s defence that it is not unlawful for theLocal Government Employees (Widows and Orphans Contributory Pension) Scheme to provide more favourable benefits to a married person. Therefore, I find that the respondent did not discriminate regarding the rules of its survivor benefit scheme in terms of Section 66 2 (b) and in contravention of Section 70 of the Act.

Decision

I find that the Dublin City Council did not discriminate directly or indirectly against Mr. Walsh contrary to the provisions of the Pensions Acts 1990-2008.

________________

Orlaith Mannion

 30 October 2008