THE EQUALITY TRIBUNAL
Pensions Acts 1990-2009
Decision DEC - P2010-002
John Cogan
versus
The Commissioner of An Garda Síochána (represented by Anthony Kerr B.L., instructed by the Chief State Solicitor's Office)
File reference: EE/2007/053
Date of issue: 16th April 2010
Keywords: Pensions Acts, access to occupational pension scheme, age, no prima facie case
1.1 This dispute concerns a complaint by John Cogan that he was discriminated by the Commissioner of An Garda Síochána on the grounds of age in terms of Section 66(2)(f) and in contravention of Section 70 of the Pensions Acts 1990 - 2008 [hereinafter referred to as 'the Acts'] as he was not allowed access to the Non-Contributory Pension Scheme for Non-Established State Employees.
1.2 The complainant referred a complaint under the Pensions Acts to the Director of the Equality Tribunal on 16th January 2007. In accordance with her powers under Section 81J of the Acts which apply the relevant provisions of Employment Equality Acts to occupational benefit schemes, the Director delegated the case on 19th January 2009 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 1st April 2010.
2. Summary of complainant's case
2.1 Mr Cogan was employed as a civilian driver with An Garda Síochána from31st January 2000 to 31st May 2009 when he retired on reaching 65. The complainant had previous service as a member of An Garda Síochána from which he retired in 1998. The complainant submits his contract of employment as a Civilian Driver did not mention that he would not be able to receive another pension if in receipt of a public service pension.
2.2 Mr Cogan submits that he was discriminated on the grounds of age when his contract of employment required him to retire at age 65 as a Civilian Driver.
2.3 Contributions were erroneously taken from Mr Cogan's civilian driver salary for the Contributory Spouse's and Children's scheme for Non-Established State Employees for which neither he nor his beneficiaries would receive any benefit as he previously made contributions to the An Garda Síochána Spouse's and Children's Contributory Pension Scheme. These contributions were subsequently refunded to him but he maintains that it is discriminatory on the grounds of age that they were subtracted from his salary in the first place.
3. Summary of the respondent's case
3.1 The respondent submits that Mr Cogan's inability to access the Pension Scheme for Non-Established Employees has nothing to do with his age but is due to the fact that he in receipt (as he admits himself) of a Garda Pension. This pension consists of a lump sum of €32,095.45 and a monthly pension of €2,528.04.
3.2 Regarding the compulsory retirement age of 65, the respondent submits that such a complaint does not fall within the scope of my jurisdiction pursuant to the Pension Acts.
3.3 Regarding the erroneous contributions taken in relation to Contributory Spouse's and Children's scheme for Non-Established State Employees these have since been refunded to Mr Cogan in full and has no relevance to his age discrimination complaint.
4. Conclusions of the Equality Officer
4.1 The issue for me to decide is whether or not Mr Cogan was discriminated on the grounds of age in terms of Section 66 (2)(f) and in contravention of Section 70 of the Acts by the Commissioner of An Garda Síochána. Section 66 (1) of the Acts provides that discrimination shall be taken to occur where, on any of the grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated.
4.2 Section 76 of the Acts sets out the burden of proof which applies to claims of discrimination:
Where in any proceedings facts are established by or on behalf of a complainant from which it may be reasonably inferred that there has been a breach of the principle of equal pension treatment in relation to him, it is for the respondent to prove the contrary.
Regarding not being allowed access to an occupational pension scheme, paragraph 9 of the complainant's contract of employment as a Civilian Driver stated that his employment is pensionable in accordance with the terms of the Pension Scheme for Non-Established Employees. A copy of this Scheme was enclosed with his contract. Paragraph 10 of the Scheme states:
Provision against duplication of benefits
Any benefits payable under this Scheme to a member or to his legal representatives shall be in substitution for and not in addition to any benefits otherwise payable under the Superannuation Acts or under any other scheme of pensions to which the employer contributed or to which contributions were paid on the employer's behalf. [my emphasis]
Consequently, the complainant's inability to access this pension scheme is not linked with his age but due to the fact that he is in receipt of a Garda pension.
4.3 In relation to his obligation to retire at 65 being age discrimination, this is related to his terms and conditions of employment rather than an occupational benefit scheme. Therefore, the respondent is correct in saying that I have no jurisdiction to investigate this under the Pensions Acts.
4.4. Regarding the contributions taken in relation to Spouse's and Children's Scheme but subsequently refunded to Mr. Cogan, while this was unfortunate for the complainant it is not discriminatory on the grounds of age.
4.5 Therefore, Mr Cogan has failed to establish a prima facie case of discrimination on the grounds of age in relation to access to an occupational benefit scheme.
Decision
I have concluded my investigation of John Cogan complaint under the Pensions Acts. Based on all of the foregoing, I find, pursuant to Section 81H of the Acts, that the complainant has not succeeded in establishing facts from which it may be presumed that the Commissioner of An Garda Síochána discriminated against him on the grounds of age in relation to access to an occupational benefit scheme.
_______________
Orlaith Mannion
Equality Officer
16th April 2010
[1]Department of Finance Circular 12/71