The Equality Tribunal
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Dublin 2.
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Pensions Acts
EQUALITY OFFICER'S DECISION
NO: DEC-P2010-001
PARTIES
Morris
(with Mr. Francis Watters as advocate)
- V -
Department of Justice, Equality and Law Reform
(Represented by Mr. Anthony Kerr BL on the instructions of the Chief State Solicitor's Office)
File reference: EE/2006/025
Date of issue: 23 February 2010
Keywords
Pensions Acts 1990-2004 -Access to an occupational pension scheme - Religion - Prima facie case
1. Dispute
1.1. This dispute concerns a claim by Fr. Donal Morris (hereafter "the complainant") that he was subjected to discriminatory treatment in not being allowed to join an occupational pension scheme by the Department of Justice, Equality and Law Reform (hereafter "the respondent") on the grounds of his religion.
1.2. The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 26 January 2006 under the Pensions Acts. On 27 November 2009, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- 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 on which date my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 22 January 2010.
2. Case for the complainant
2.1. The complainant submitted that he was employed by the respondent as a prison Chaplain in a full time capacity from 1 September 1998 to 2 September 2005. The complainant submitted that all prison officer grades/established or un-established civil servants employed by the respondent had access to a pension scheme. The complainant submitted that membership of such a scheme is compulsory to prison officers and is facilitated by such elements as deduction at source from all salary payments.
2.2. The complainant submitted that he has been attempting to ascertain his employment right in relation to pensions schemes since 1999. The complainant submitted that he has received a number of communications from his former employer informing him that his post as a 'Roman Catholic Chaplain' was not pensionable. The complainant submitted that the appropriate grade for comparator purposes is that of an Assistant-Governor grade. It was submitted that all other established/un-established civil servants working with the respondent had access to a pension scheme.
2.3. The complainant submitted that in order to interpret the words 'religious background or outlook' an ordinary statutory meaning ought to be given to it. By referring to the Oxford English Dictionary the complainant submitted that the word 'background' refers to a persons 'education, experience and social circumstances'. It was argued that by including the words 'outlook' and 'background' in section 65 of the Acts the legislature intended an expansive definition of 'religious belief'.
2.4. The complainant submitted that it is clear that not having any 'religious belief'' 'outlook' or 'background' is protected just as much as a comparator situation where persons have different belief. It was submitted that the crucial concept in this application is that the complainant was treated less favourably because of religious education, experience and background. That is, the complainant submitted, he is clearly of a different religious belief from those who have no religious belief as well as from other Roman Catholics who are not priests. This is because what separates him from lay Roman Catholics is the fact that he spent a long period of study obtaining defined academic qualifications. It was submitted that by including all other workers except for the prison Chaplains in the occupational pension scheme, the respondent is acting contrary to section 78 of the Acts by treating the complainant less favourably because of his religious background.
2.5. The complainant wishes to distinguish the Labour Court determination EDA074 on the following grounds:
1. The complaint is under the Pensions Acts,
2. The comparator for the purpose of this application are not prison officers but all other employees of the respondent with the exception of other prison Chaplains,
3. The Tribunal is not strictly bound by precedent
3. Case for the respondent
3.1. The respondent submitted that this Tribunal is bound by the doctrine of precedent. It submitted that EDA074 dismisses the complainant's claim " absurd to hold that as a matter of law a Catholic priest working in a prison is of a different religious belief to a Catholic lay person working in a prison".
3.2. It was submitted that if the Oireachtas intended to protect a person's position within a religion it would have done so in clear language.
4. Conclusion of the Equality Officer
4.1. Section 76 of the Acts defines the burden of proof as "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".
4.2. It was submitted by the complainant that the word "background" ought to be subject to a statutory clarification and to give it literal meaning by examining its dictionary meaning. I disagree with this approach and find that in interpreting the term 'background' the Tribunal has no need to reach for a dictionary. In such a context the Tribunal ought to apply the literal meaning of the words in a statute, taking account of their context. This is in accordance with the authority in Inspector or Taxes v Kiernan [1981] IR 117 where Henchy J stated that where the word being interpreted, among other things, "is a simple word which has widespread and unambiguous currency, the judge construing it should draw primarily on his own experience of its use". The use of dictionary is only appropriate in circumstances where words used in a statute require specialist or alternative meaning, for example, in situations where the legislation is targeted at a particular class of people and the words used are to be construed as they would be by that class of people or to allow for regional variation in the use of a word.
4.3. It is worth noting that while the Acts do not refer to 'religious background' but to a comparator situation where 'one has a religious belief different from the other or that one has religious belief and the other has not', the definition includes 'religious background and outlook'. It is clear, using everyday language, that the legislature did not intend to extend the definition of the principle of equal treatment to situations where a comparator arises because, inter alia, one person has dedicated more time to the study of religion than the other is, has been or would be within the same religion. If this had been the intention the Acts would clearly say so. Therefore, in relation to establish a prima facie case for this complaint, the complainant must be able to establish facts of a comparator - real or hypothetical - acting in the same role as the complainant who is either not a Roman Catholic or has no religious belief and who has, had or would have access to an occupational pension scheme.
4.4. In the circumstances of this case I accept that DEA074 - as far as extending the definition of 'religious background' - is a relevant authority for this case. While I note the complainant wishes to distinguish the determination on the ground that it refers to different Acts, it is clear that the language used in both Acts in relation to the protected grounds is identical.
4.5. It is clear that what separates the complainant from the Assistant Governor grades is his profession. While I appreciate and acknowledge that this profession is directly linked with the complainant's religion, no facts have been supplied to suggest any other person with a different religion or no religion working in the said post would have been included in a pension scheme. The Acts do not provide for a comparator between a Chaplain and established/un-established civil servants.
4.6. Furthermore, while this is not an issue addressed directly at the hearing, I note that the complainant has had access to an occupational pension scheme since the summer of 2002. This means that the time period the complainant is referring to in relation to his exclusion from a pension scheme is between 1 September 1998 and 30 June 2002. The Acts were amended to provide protection to additional grounds from 18 July 2004. They do not provide for retrospective application.
5. Decision
5.1. No facts have been 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. Therefore, the complaint fails.
_________________
Tara Coogan
Equality Officer
23 February 2010