THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision
DEC – E2009- 072
DEC - P2009- 003
PARTIES
Mr. Michael Bourke
and
Radio Telefís Éireann
(represented by Ms. Marguerite Bolger acting on instructions from RTE)
File Reference: EE/2008/100
Date of Issue: 2nd September 2009
1 Claim
1.1 Mr. Bourke submitted a claim of discriminatory treatment on the age ground in accordance with the Employment Equality Acts 1998-2007 and a claim in accordance with the Pensions Acts 1990-2004. His claims related to the respondent's decision to cease a long standing practice of paying for television licences for those receiving a pension from the respondent.
2 Background
2.1 Mr. Bourke referred a claim to the Director of the Equality Tribunal under the Employment Equality Acts 1998-2007 and under the Pensions Acts 1990-2004 on 18th February 2008. In accordance with her powers under section 75 of the Act, the Director then delegated the case to me, Bernadette Treanor, 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. The case was delegated to me on 29th January 2009 and my investigation began on that date.
2.2 The parties were informed by letter dated 16th February 2009 of the hearing which took place on 22nd May 2009.
3 Summary of the Complainant’s Case
3.1 The complainant took early retirement from the respondent in September 2001. He believed that the practice of his TV licence being paid for by the respondent from his original retirement date at 60 years of age would continue. From February 2007 the complainant was entitled to his pension. His first licence renewal date following that entitlement was 1st October 2007. It became apparent that the respondent was not intending to pay for his licence and, in fact, that the arrangement had been discontinued some time earlier.
3.2 The complainant argues that the change discriminates against him because he is younger than those who have benefited from the practice. His research has shown that a decision was taken in late 2002 to discontinue the practice and those already receiving the benefit would continue to do so for the period they were entitled to under the arrangement. The complainant asserts that this was a unilateral decision on the part of the respondent which was not imparted to employees or unions and was effectively done by stealth.
3.3 In addition, and from another perspective, the complainant alleges that current employees, generally younger than him, have not had any benefits or concessions removed.
4 Summary of the Respondent’s case
4.1 The respondent agreed that a decision was taken in November 2002 to discontinue the long standing practice of discharging the cost of TV licences for retired employees, and that it did not affect those already in receipt of the benefit.
4.2 The respondent also agreed that the decision disentitled employees retiring after that time from receipt of the benefit up to the age of 70 and that consequently the complainant never enjoyed the benefit.
4.3 The respondent is not in possession of documentation concerning the benefit.
4.4 The discharge of the benefit has never been effected by or on behalf of the Trustees of the RTE Superannuation Scheme and it was never a benefit under the scheme. The discharge when effected was always effected by RTE through its Department of Human Resources and was seen as a grace and favour privilege.
4.5 The respondent argued that the claim made in accordance with the Pensions Acts is misconceived as the benefit was never part of a pension scheme and that it is out of time. It further submits that the claim in accordance with the Employment Equality Acts is also out of time. The respondent stated that while the difference in treatment may appear to be indirectly related to age there were sound economic objective grounds for the removal of the benefit.
4.6 The respondent had deficits of €14M, €71M, and €56M in the years 2000, 2001 and 2002 respectively.[1] At the hearing a document detailing a decision by the RTE Authority in November 2001 was submitted which detailed savings to be made in many departments in the respondent organisation amounting to IR£23.4M. As indicated above no documents were presented in relation to the removal of the impugned benefit.
4.7 In November 2002 at the time of the decision there were 155 former employees who were receiving the benefit. As the benefit always ceased at the age of 70, when the cost is met by the State, these numbers have been reducing and the benefit will cease altogether in three years. The number of employees who retired since that date, (statistics provided on 4th July 2008), who are not receiving the benefit is 360.
5 Conclusions of the Equality Officer
5.1 I am required to decide if the complaint is in time and if the complainant was discriminated against in respect of any rule of an occupational benefit scheme on the age ground. In addition, I must decide whether or not he was discriminated against on the age ground by the respondent when they failed to provide him with a benefit relating to licence fees.
5.2 I am satisfied that the first time the complainant was eligible for the benefit was October 2007 and when he applied for the benefit he was refused. I am satisfied that he was not advised, following his retirement in September 2001 that the practice was to be ceased and that the first time he became aware of the change was when he requested the benefit in 2007. As his claim was lodged within six months of that I am satisfied that the claim is in time.
Pensions Acts
5.3 The Pensions Acts require, inter alia, that the principle of equal pension treatment be applied in respect of any rule of a scheme. A scheme is defined as an occupational benefit scheme which in turn is defined as any occupational pension scheme which is comprised of one or more instruments or agreements. I am satisfied that the benefit relating to the discharge of the licence fee was never part of the superannuation schemes or of any agreement between the respondent or its staff. On that basis I am satisfied that the claim in accordance with the Pensions Acts is misconceived. However, as section 81J of the Pensions Acts does not include a reference to section 77A of the Employment Equality Acts I must decide whether the principle of equal pension treatment was infringed in this case. On the basis of the evidence presented I find that the complainant has failed to establish a prima facie case that the principle of equal treatment was infringed.
Employment Equality Acts - Direct Discrimination
5.4 I am satisfied that the complainant is an employee for the purposes of the Acts.
5.5 The complainant has alleged that he was treated less favourably because of his age when the respondent failed to pay for his TV licence. Those affected included anyone under the age of 60 when the decision was taken. It also included those over 60 who had yet to retire. The complainant attained the age of 60 in 2007. The respondent confirmed that there are people older than the complainant who do not receive the benefit. I am satisfied that one person, who will be 67 in September this year is not receiving the benefit. In addition, those younger than the complainant will not receive the benefit either. As people younger and older than the complainant do not qualify to receive the benefit the reason for its non-payment is not directly related to the complainant's age.
5.6 In addition, the complainant alleged that the removal of this benefit from the respondent's pensioned employees without a corresponding cut in benefits to those still in employment, and younger than the complainant, constitutes discrimination on the age ground.
5.7 One difference in treatment may be that there was no notification of the removal of the licence fee benefit while the removal of privileges from existing staff is likely to involve some form of consultation. However, the lack of notification did not remove the complainant's ability to take his claim as I have found that his claim is in time above.
5.8 Given that the complainant is retired, I am satisfied that those still in employment with the respondent are not appropriate comparators in this case as they are not in a comparable situation as required by section 6(1)(a) of the Acts.
5.9 In the interests of clarity, however, I am satisfied that the evidence presented by the respondent indicates that similar cuts are being considered in relation to continuing employees' grace and favour privileges.
5.10 I find that the complainant has failed to establish a prima facie case of direct discrimination on the age ground.
Employment Equality Acts - Indirect Discrimination
5.11 The complainant stated that he belonged to an age group that were disproportionately affected by the removal of the benefit. When the benefit was being discharged, it was triggered by the retirement of an employee if 60 or over, or by an employee attaining the age of 60 if retired before then.
5.12 I am not satisfied that the non-payment of the benefit, alternatively described as a practice of non-payment of the benefit, constitutes a neutral provision in terms of the Act.
5.13 Taking the complainant's licence renewal date 1st October 2007 as the reference date, it is clear that 100% of those younger than the complainant would not benefit from the licence payment. Assuming
· that all of the original 155 recipients of the benefit in November 2002 were still receiving the payment, and
· that the number retiring between the reference date and the date on which statistics were provided, 4th July 2008, was not sufficient to throw the following calculations out of kilter,
then the total number older than the complainant was approximately 515. Of that 515, a maximum of 155 were potentially receiving the benefit. Therefore a maximum of 30% of the comparator group could potentially receive the benefit. As the comparator group is not predominantly in receipt of the benefit I am satisfied that the imbalance between the groups is insufficient to establish a prima facie case of indirect discrimination. [2]
5.14 As I am neither satisfied that a neutral provision existed, nor that a sufficient imbalance exists between the groups, I find that the complainant has failed to establish a prima facie case of indirect discrimination on the age ground.
6 Decision
6.1 Having investigated the above complaint I hereby make the following decision in accordance with Section 79(6) of the Acts. I find that the complainant has failed to establish a prima facie case of direct and indirect discrimination on the age ground in accordance with the Employment Equality Acts 1998-2008. I also find that the complainant has failed to establish a case of less favourable pension treatment in accordance with the Pensions Acts 1990-2004. Therefore his claim fails.
Bernadette Treanor
Equality Officer
2nd September 2009