THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS & Pensions Acts
Decision DEC - E2010-079
Decision DEC-P2010- 003
PARTIES
DeSiun
(represented by INTO)
and
Department of Education & Science
File Reference: EE/2006/057
Date of Issue: 24 May 2010
1 Claim
1.1 Ms. DeSiun claims that the Department of Education and Science discriminated against her contrary to the Employment Equality Acts, 1998-200? on the religion, family status and marital status grounds as regards the treatment she received in relation to the National School Teachers' Spouses' and Children's Contributory Pension Scheme (hereinafter called the Scheme). She also made a claim in relation to a Collective Agreement.
1.2 When Ms. DeSiun retired the Department failed to reimburse her the contributions she had made to the Scheme in respect of the period following her marital separation. In addition, the respondent made a deduction from her retirement lump sum in relation to her pensionable service prior to her membership of the scheme for which contributions had not been made. According to the Scheme's rules reimbursements are made to those members of the Scheme who have divorced or were widowed before retirement. The Scheme also provides that the entire amount of payments is reimbursed to those who remained single throughout their period of service. The complainant alleges that this is discrimination on the religion and marital status grounds. The respondent denies that any discrimination has occurred.
1.3 Ms. DeSiun referred a claim to the Director of the Equality Tribunal under the Employment Equality Acts 1998 & 2004 and the Pensions Acts 1990 & 2004. In accordance with her powers under section 75 of the Employment Equality Acts, the Director delegated the cases 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 Acts. The date of delegation was 28 April, 2008 and my investigation began on that date. Hearings took place on 7/11/2008 and 27/10/2009 and the final information was submitted on 30/10/2009. At the hearing, through her representative, the complainant indicated that she wished to pursue the claim in respect of the religion and marital status grounds only.
2 Background
2.1 The Widows and Children's Contributory Pension Scheme has operated since 1969. Membership was compulsory for all male teachers appointed on or after 1 July 1969. Membership was extended to all female teachers appointed on or after 1 November 1981 on a compulsory basis. At that time the Scheme also became known as the National School Teachers' Spouses' and Children's Contributory Pension Scheme (the Scheme). The Scheme was introduced on foot of Agreed Report 3/81 of the Conciliation Council for Teachers.
2.2 No evidence was presented to indicate that the 2004 amendment of the Pensions Act triggered a review of the provisions of the Scheme to assess its compliance, or otherwise, with the statutory provisions. No amendments have been made to the Scheme. A new or amended scheme (the Revised Scheme) was introduced in 2005 to take account of the work of the Commission on Public Service Pensions. The complainant had the option to opt for the Revised Scheme which she chose not to exercise. The Revised Scheme retained the same rules in relation to the subject at hand. It states in section 3 "Note that in the case of the Revised Scheme (as in the Original Scheme), the spouse of the member must be a party to a marriage recognised by the laws of this State." The Revised Scheme was introduced and will run in tandem with the original Scheme while that Scheme still has members. All new entrants to teaching now are subject to the Revised Scheme.
2.3 'Contingent benefits' is a term which includes the type of survivor's pension which is the subject of this claim. It also refers to lump sum payments such as death in service benefits which are contingent on the member's death. Where a spouse wishes to seek a pensions adjustment order in relation to contingent benefits this must be made separately from any application in relation to retirement benefits. "Most importantly, in the context of an order in relation to contingent benefits, the application must be made within 12 months of the granting of the decree of judicial separation or divorce."
3 Summary of the Complainant's Case
3.1 The complainant was a Primary School Teacher who commenced her career in 1970 and continued teaching until 1977 when she resigned at the time of her marriage. Her daughter was born in 1979. She ultimately returned to teaching in 1982. On her return she was mandatorily entered into the Scheme. She retired in 2007.
3.2 The complainant's marriage broke up in 1987 and a legal separation agreement and deed of waiver were entered into. A Roman Catholic decree of annulment was granted in 1994.
3.3 The terms of the Scheme provide that each member is liable for 1.5% deductions from all pensionable salary. In addition, a deduction equal to 1% of retiring salary is made from the retirement gratuity in respect of each year of pensionable service, (both potential and actual) for which periodic contributions were due but not paid subject to a maximum of 40 years' contributions. The claimant had €11,967.17 deducted from her retirement lump sum in this regard.
3.4 The complainant maintains that she should be regarded as a single person for the purposes of the Scheme. Refunds under the Scheme are paid where a member does not qualify for benefit by virtue of insufficient pensionable service or by virtue of having remained unmarried for the duration of his/her membership of the Scheme. In addition, where a member's spouse died while the member was in pensionable service, contributions would be refunded at retirement in respect of the period after the spouse's death during which contributions were made.
3.5 The complainant contends, on the basis of her Church annulment, that she was unmarried for the duration of her membership of the Scheme and that she should have received a refund of her contributions on retirement. The Scheme provided for an opt-out in 1981 for serving teachers but as the complainant was not serving at that time she could not avail of the opt-out. She was required to join the Scheme when she returned to work in 1982.
3.6 The Scheme was amended/replaced in 2005 and the effect of the amendment was inter alia, to take account of the possibility that members may get married after retirement. Only those who have remained single and are members of a religious order get the full refund under the amended rules. The complainant submitted that it is discriminatory on the part of the respondent, on the religion ground, to recognise rules, regulations and precepts of the Roman Catholic Church in respect of persons who are members of a religious order but not to do so in respect of lay persons. The claimant contends that, for the purposes of the relevant legislation, a person with a religious vocation is within a category of person with a different religious belief from a lay person, even where both are members of the same church. When the complainant initially raised the issue with the respondent its response was that "neither legal separation nor a church annulment is sufficient to change your legal marital status to that of a single person."
3.7 In support of her claim of discrimination on the religion ground the complainant submitted Francis Mulloy v The Minister for Education and the Attorney General. This Supreme Court decision deals with varying degrees of the same religion in terms of the Constitution.
3.8 She contends that it is discriminatory on the marital status ground where members who have remained single are entitled to a refund while others are not.
3.9 One final anomaly arises in relation to the provision in the Scheme which states that a spouse's pension is not payable if s/he has remarried or is co-habiting with another as man and wife. The respondent made no attempt to verify this. Therefore the respondent has retained contributions in respect of a pension which the complainant believes will never be paid.
3.10 The complainant's representative asserted that the changes to the Scheme were simply amendments and that it is the same Scheme throughout its history.
4 Summary of the Respondent's case
4.1 The Department accepts that it is the respondent for the purposes of this case being the Trustee of the Superannuation Schemes for Primary School Teachers.
4.2 Under the terms of the Scheme a pension may be payable to the surviving legal spouse and any eligible child following the death of a member whether while serving or after retirement. The legal spouse is the surviving partner of a marriage recognised by the State. Neither a Church annulment nor a legal separation is sufficient to change marital status. Legally the complainant is still deemed to be married and her husband is still her legal spouse.
4.3 Because the complainant was married at the time of her retirement there was a potential claim to the Scheme. The 1981 Scheme is applied regardless of a person's religion and therefore there is no discrimination on the grounds of religion.
4.4 In relation to marital status the key distinction made is whether a person has a spouse or not at the time of retirement. If so, a refund is not payable. This does not constitute discrimination on the marital status ground. Rather, it recognises the fact that there is a potential benefit under the Scheme.
4.5 The respondent stated that the calculations undertaken on the retirement of a member of the Scheme mean that any contributions for pensionable service not already paid and any repayments following the divorce or death of a spouse are combined and only the net figure is deducted or repaid as appropriate. The following examples were provided.
Example 1
If a person is single for the duration of his or her membership of the Scheme, he or she is not liable to pay for any pre-scheme service and is entitled to a full refund of contributions in respect of the Original Spouses' and Children's Scheme subject to a tax deduction (currently 20% of the value of those deductions). This is because any marriage he or she enters into post-retirement is not covered by this scheme.
Example 2
A female teacher starts teaching in 1975 and joins the Original Spouses' and Children's Pension Scheme on its introduction in 1981. She marries in 1985. Her spouse dies in 1995 and she retires in 2000. As she was married during part of her membership of the pension scheme, she is liable for her years of service until the marriage came to an end through her spouse's death in 1995. This means that, in total, she is liable for 20 years service (1975-1995). She has already paid for 19 years of service (1981 - 2000) and so will be charged for 1 year of service (1% of her retiring remuneration).
Example 3
Take the same example as above but instead of retiring in 2000 the teacher retires in 2006. Again, she is liable for spouses' and children's coverage in respect of 20 years service. Here she has already paid for 25 years service. Therefore, the Department owes her 5 years pension contributions. It will refund the contributions given in respect of the most recent years less 20% tax deduction.
If the marriage had ceased through divorce rather than death, the same principle would apply; ie the marriage had come to an end. The rule under the Original Spouses' and Children's Pension Scheme is that a person who is single at retirement is entitled to a refund for those years he or she is single or, where a marriage was in existence at some time during his or her service, for the period after which the marriage came to an end.
4.6 It is not appropriate to use the revised Scheme of 2005 to identify a comparator in a member of a religious order who has taken a vow of celibacy. The complainant is not subject to the revised Scheme.
4.7 A Church annulment is insufficient in the eyes of the law to annul a marriage. The respondent argues that a Church annulment is a separate and distinct process. A legal annulment, which may only be issued by the Courts, would render the complainant's position the same as single member of the Scheme. The respondent further argues that a separation agreement constitutes a contract between the parties and while they may agree to extinguish their rights under the Succession Act 1965 the situation relating to pensions is somewhat different. The respondent points to paragraphs 7.03 and 7.45 of Shatter, Shatter's Family Law (4th ed. Butterworths, 1998). Shatter points out that a "separated spouse remains a "widow" or "widower" for the purpose of public pension schemes and will be a beneficiary under such schemes upon the death of the other spouse". (The respondent now refer to "widow" or "widower" as spouse.) In Crowe Engineering Ltd v Lynch and Ors [1992] 2 Fam LJ 45 the High Court accepted that the benefits from the scheme did not form part of the deceased's estate. It held that the non-member spouse's renunciation of her succession rights did not affect her entitlement to be regarded by the Trustees as a possible beneficiary under the Scheme. The respondent argues that the case has equal application here where the spouse's pension does not form part of the complainant's estate but rather is a potential right of her spouse in his own right. It asserts that the Crowe judgement also makes clear that the trustees of a pension scheme can abide by the wishes of the pension scheme member provided that they continue to act "within the terms of the scheme". In the instant case it is argued that to refund the complainant her contributions, and thereby disentitle her spouse, the Department would be acting contrary to the Scheme rules.
4.8 This could be achieved, however, if the separation had been incorporated into a court order known as a pension adjustment order in either judicial separation proceedings under the Family Law Act 1995 or divorce proceedings Family Law (Divorce) Act 1996. The respondent points to paragraph 7.76-2 of Shatter where it is noted that there is no provision in the context of a separation agreement being made a rule of court for the courts to make a pension adjustment order overriding the rules of a pension scheme. While Shatter regards this as anomalous the respondent states that it remains the current position.
4.9 The respondent stated that the issue of spouses remarrying or cohabiting is addressed only on the death of the member.
4.10 As there was a potential benefit at the time of the complainant's retirement she is not entitled to a refund of contributions.
4.11 The respondent stated that had the complainant obtained a judicial separation, and obtained a pension adjustment order then her situation would have been different and she would have been entitled to a refund.
5 Conclusions of the Equality Officer
5.1 What must be decided is whether or not the respondent failed to provide equal pension treatment to the complainant in terms of sections 69 and 70 of the Pensions Acts or discriminated against the complainant in terms of the Employment Equality Acts on the family status, marital status and religion grounds, when it failed to repay her contributions in respect of the period between her separation and her retirement and when it recouped contributions relating to her early service. The complainant's reference to a collective agreement must also be addressed.
5.2 As stated, this Decision relates to the treatment of the complainant by the Scheme. The rights and treatment of others, including the complainant's spouse, remain undisturbed.
5.3 The burden of proof required from the complainant in relation to the Employment Equality Acts is detailed in section 85A of the Employment Equality Acts which provides that should a complainant establish facts from which it may be presumed that s/he suffered discrimination, it is for the respondent to prove the contrary. Detailed application of this approach may be found in Mitchell v Southern Health Board [2001] ELR201. The provisions in the Pensions Acts, section 76, are similar where it states that where facts are established by the complainant it is for the respondent to prove the contrary.
Employment Equality Acts
5.4 I am satisfied that the conduct of the respondent giving rise to the instant complaint arises due to the operation of the rules of the Scheme. Following consideration of section 70(1) of the Pensions Acts, section 2(4) of the Employment Equality Acts and the definition of pension rights included in section 2(1) of the Employment Equality Acts, I am satisfied that the claim under the Employment Equality Acts is misconceived. As I have not been delegated the power to dismiss a claim in accordance with section 77A I find that the claim in relation to the Employment Equality Acts has not been made out and the complainant has failed to establish a prima facie case in that regard.
Pensions Acts
5.5 I am satisfied that the Scheme is an occupational benefit scheme in terms of Section 65 of the Pensions Acts. The respondent submitted a copy of Agreed Report 3/81 and of the Circular 25/81 implementing the terms of the Agreed Report. The Circular includes a memorandum which outlines the general terms of the Scheme. The memorandum begins as follows:
"This memorandum is only a general guide to the terms of the Spouses' and Children's Contributory Pension Scheme and does not cover it in detail. It cannot confer any rights which are not conferred by the terms of the scheme itself."
Whether or not the Scheme exists in any other form is moot and no such document has been presented in evidence. Copies of a Trust Deed and Rules were not presented. I am satisfied, and find as a fact, that the provisions of the memorandum and the normal operating procedures constitute 'rules' in terms of section 65(1)of the Pensions Acts.
I note that one of the provisions of the memorandum, under the heading "Eligibility of Spouse", relates to the repayments to be made to members at retirement in respect of contributions made following the death of a spouse. There is no such rule explicitly included in the memorandum in respect of divorced members. However, the respondent stated in evidence that the rule is applied, mutatis mutandis, to divorced members as the marriage has ended. I am satisfied and find as a fact that this constitutes a rule of the Scheme.
5.6 A conflict arises in this case in relation to the complainant's marital status. The complainant has stated that she concluded a separation agreement. She also obtained an annulment from the Roman Catholic Church. She does not consider herself to be married in accordance with the normal meaning of the word. The respondent has stated that the annulment does not alter her status in the eyes of the Law. It argues that the complainant's legal status remains 'married'. The fact that she has a separation agreement in place is acknowledged but this does not alter her legal status either. The respondent states, in fact, that legally the complainant is still married and she still has a spouse.
5.7 In its Final Report the Commission on Public Service Pensions, at 20.4.8, stated:
The Commission is sympathetic to the argument that a spouse's pension should be payable to the surviving partner of a public servant where the two parties were living together as husband and wife prior to the member's death, and where financial interdependency can be shown to have existed. A reform of this nature would enable public service schemes to remain reflective of wider social developments and would bring them into line with practice in most occupational pension schemes in the private sector. However, we are conscious of the constitutional obligations of the State. The legislative nature of public service pension schemes requires that they conform to the provisions of the Constitution. It would be important, therefore, that any change in this area should not cause difficulties in relation to the special protection of the institution of marriage under Article 41 of the Constitution.
At 20.4.11 the Commission stated:
This approach would prohibit payment of survivor's pension to a non-marital cohabiting partner in circumstances where the public servant was married at time of death, but separated. In such a case, the survivor's pension would continue to be payable to the legal spouse. We are of the view that should there be constitutional change in this area, the matter should be considered again by employers and unions.
5.8 I am satisfied that the complainant remains legally married and that her spouse is still entitled to a spouse's pension should the complainant predecease him.
5.9 It is clear that Family Law generally provides for two states, married and unmarried. Married and separated fall into the first category and single, divorced and widowed fall into the second category.
5.10 However, section 66(2) (b) of the Pensions Acts states that the discriminatory ground relating to marital status is "that they are of different marital status". Marital status is defined in section 65(1) as follows: " 'marital status' means single, married, separated, divorced or widowed". This is identical to the definitions included in the Employment Equality Acts 1998-2008 and in the Equal Status Acts 2000-2008. It is clear, in relation to equality of treatment, the Legislature intended that protection should be afforded to those who are separated. It has been identified in these Acts as a marital status on an equal footing with all of the other categories. It is not identified as a sub category of 'married'.
5.11 In Customer Perception Ltd. and Ms. Gemma Leydon, EED0317 the Labour Court has stated:
It is settled law that where a statute defines its own terms and makes what has been called its own dictionary, a Court or Tribunal may not depart from the definition given by the statute and the meaning assigned to the words used in the statute. Furthermore, if there is nothing to modify, alter or qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and sentences used.
The instant case relates to a claim lodged with the Tribunal in accordance with the Pensions Acts. The 'dictionary' of the Pensions Acts includes a definition of the term 'marital status' which, in turn, includes the term 'separated'. As stated above by the Labour Court I cannot depart from the definition given by the Statute. Nor can I ignore it since it is clear that the Legislature intended its inclusion.
The definition in the Pensions Acts refers to 'separated' although it does not offer a subsequent definition of it. Therefore, I must interpret it in accordance with the ordinary meaning of the word. Since the term separated is not qualified in any way I am satisfied that it refers to any form of separation and not just sub-categories of it such as judicial separation. Therefore, while the complainant remains legally married, I am satisfied, based on the evidence presented, that she is separated in terms of the Pensions Acts.
Family Status Ground and Collective Agreement
5.12 At the hearing the complainant indicated, through her representative, that she wished to pursue her claims in relation to religion and marital status, focussing mainly on the former. The claim in respect of family status was not formally withdrawn. As the complainant has failed to present any evidence in support of her claim relating to the family status ground or a Collective Agreement she has failed to establish facts upon which a claim could be based. She has therefore failed to establish a prima facie case of discrimination in this regard and these elements of her complaint fail.
Religion Ground
5.13 Section 66(1) of the Acts states that discrimination occurs where a person is treated less favourably than another person in a comparable situation. The complainant seeks to compare herself to a member of the revised Scheme who is in the religious life and has been bound by a vow of celibacy throughout the period of his or her contributing membership. She maintains that if the respondent recognises this rule based on the religious belief of a member then it should recognise her Church-declared annulment. She should be considered single for the full period of her membership.
The complainant asserts that because a later version of the Scheme recognises some Church provisions, notably a vow of celibacy, that it should recognise her Church annulment also. She argued that the respondent discriminated against her by recognising some Church provisions and not others. The respondent argues that the complainant cannot use the provision in the amended Scheme since it does not apply to her. The Pensions Acts states in 66(2)(e) that the religion ground applies to two people where one has a different religious belief from the other or one has a religious belief and other has not. This very clear and explicit provision requires people to hold different beliefs and was addressed in Equality Officer's Decision DEC-E2006-015.
5.14 In the instant case however, the complainant seeks to compare herself to members of the revised Scheme. Section 70(1) of the Pensions Acts provides: "Subject to this Part, the principle of equal pension treatment is that there shall be no discrimination on any of the discriminatory grounds (including, subject to section 68(2), indirect discrimination) in respect of any rule of a scheme." This provision relates to the rules within a scheme and precludes the comparison of members of one scheme with the members of another scheme. The complainant argued that the Scheme and the Revised Scheme are the same scheme while the respondent argued that they are separate schemes.
5.15 Revised Schemes were generally introduced in the Public Service in 1984 but the Scheme, relating to teachers was not revised until 2005. Circular Letter PEN14/05 was issued by the respondent to all schools and it was entitled "Revision of the Spouses' and Children's Pension Scheme - Option to join the Revised Scheme." At paragraph 2 it states that the (Original) Scheme applies to all male teachers since 1969 and to all female teachers since June 1981. The addition of arrangements providing for female teachers did not create a new scheme but was an extension of the original Scheme. The original Scheme continued to apply until 2005 when the Revised Scheme, which incorporates some new rules, was introduced. On the introduction of the Revised Scheme admission to the original Scheme was closed. I am satisfied that the Revised Scheme constitutes a separate scheme for the purposes of the Pensions Acts.
5.16 On the basis of the foregoing I am satisfied that the complainant cannot compare the treatment she received as a member of the original Scheme to that received by members of the Revised Scheme. I find that the complainant has failed to identify an appropriate comparator whose treatment would indicate that she has not received equal pension treatment because of her religion and she has therefore failed to establish a prima facie case in that regard.
Marital Status Ground
5.17 At 5.11 above I have found that the complainant is "separated" for the purposes of the Pensions Acts.
5.18 The Acts require that the comparison is made with a person who is in a comparable situation to the complainant. I am satisfied that those who remained single throughout their membership, who never had a spouse and who therefore never enjoyed the protection of the Scheme, are not in a situation which is comparable with that of the complainant
5.19 A sum of €11,967.17 was deducted from the complainant's retirement lump sum in respect of pensionable service for which deductions were never made. Since the same treatment is afforded to members at retirement who are married, separated, divorced and widowed no less favourable pension treatment arises in respect of this charge.
5.20 A member of the Scheme who was married at retirement, and who considered herself married and not separated, would have been the subject of the same treatment as the complainant in relation to the non-repayment of contributions. Therefore no less favourable treatment arises in comparison with a married person.
5.21 A divorced or widowed member would not have been subject to contributions in relation to the period after the divorce or death of the spouse. As the complainant was subject to contributions for the period after her separation a difference in treatment potentially arises in comparison with divorced or widowed members. Further consideration of the circumstances of divorced/widowed members at retirement is necessary.
5.22 The respondent asserted that the reason the complainant is not entitled to a refund of contributions in relation to the period following her separation is because she is legally still married and her husband therefore has a potential claim on the Scheme in the event of her death. The reason she has not been refunded the contributions paid after her separation is because of the existence of the potential claim on the Scheme and not because of her marital status.
5.23 The argument that a potential claim is the basis for the treatment is somewhat eroded when one considers the following scenario in respect of child-related potential claims. Where a member is divorced or widowed, and at least one child remains with a claim on the scheme, no contributions are due after the death of the spouse. Therefore, in a situation where there is a potential claim or claims (where there is more than one child) on the Scheme until the child is over 21, no contributions are retained following the death of the spouse.
5.24 The complainant, had she obtained a judicial separation, would still be married and have a spouse. Had she also obtained a pension adjustment order as argued by the respondent there would be no potential claim to the scheme and she would get a refund of payments following the court order in spite of the existence of a spouse. Presumably the reverse of this situation also applies. That is, where a member is divorced, for example, thereby ending the marriage and removing the ex-spouse as a potential claim on the scheme, presumably the ex-spouse can seek a pensions adjustment order within a year to secure an entitlement to the scheme even though no longer a spouse of a member. Both of these scenarios support the view that the operation of the Scheme in this regard is based on the existence or otherwise of a potential adult claim to the Scheme in respect of the member and not the existence or otherwise of a spouse.
5.25 The respondent has stated, on the basis of the Crowe judgement, that the benefits flowing from the Scheme are an entitlement of the complainant's spouse in his own right. This Decision accepts that the complainant is married and that her spouse retains his entitlement to a spouse's pension, subject to the normal checks, should the complainant predecease him. It also accepts that the trustees of the Scheme cannot alter this in the absence of a court order.
5.26 Section 72(2) and (3) each relate to more favourable occupational benefits (a)to any person in respect of a member and (b)to a member's widow or widower respectively. Occupational benefits are defined as benefits in the form of pensions payable in cash or kind. Neither of these provisions relate to the member of a scheme and so have no relevance to the instant case.
5.27 Table 1 (compiled from the evidence presented) includes an analysis of the treatment by the Scheme of members and beneficiaries on the retirement and death of members.
Table 1
Original Scheme - Analysis by Marital Status - Refund of contributions
Member Status Member retires Member dies
Single All payments refunded No action
Married No refund Check for remarriage or cohabitation - if not relevant, pension paid to member's widower
Widowed Payments after death of member's spouse refunded No action
Divorced Payments after divorce refunded No action
Divorced (PAO - Spouse)* Payments after divorce refunded Check for remarriage - if not relevant, pension paid to member's ex-spouse
Separated No refund Check for remarriage or cohabitation - if not relevant, pension paid to member's widower
Separated (PAO - Member)** Payments after Judicial Separation & PAO refunded No action
* PAO - Spouse means a Pensions Adjustment Order in favour of the ex-Spouse. Not necessary in case of separation.
** PAO - Member means a Pensions Adjustment Order instructing the Scheme not to pay the spouse. Not necessary in case of divorce.
5.28 Table 1 shows that there are three groups of members in respect of whom, on retirement, there is a potential outstanding claim to the Scheme in respect of members of the Scheme in those groups. The three groups are those members who are married, those members who are separated (without a PAO) and those members who are divorced and against whom PAO's have been obtained. The complainant is a member of the group who are separated without a PAO. Those who are divorced with PAO no longer have spouses and according to the evidence are not liable to pay for the period of service following divorce unlike the complainant following her separation.
5.29 As mentioned above the respondent was clear that divorced members are not liable for contributions relation to the period after their divorce. This appears to be the case whether or not a pension adjustment order exists. No evidence was presented in respect of the decision of the Trustees not to charge those members who are divorced, who have no spouse but against whom a pension adjustment order exists, as to whether or not such a decision was required by court order, by a rule of the Scheme or was simply a decision of the Trustees. Indeed, no evidence was presented as to whether such a situation has in fact arisen and any such comparison may be a hypothetical one based on section 66(1)(a). No arguments were presented that, in relation to these members, the Scheme appears to base its decision on the fact that the member no longer has a spouse rather than on any potential exposure to the scheme. On that basis I shall not address the matter further.
5.30 In the absence of any evidence to the contrary, I am satisfied any liability to the Scheme in respect of divorced members is created by a court order. The existence of the court order constitutes a difference in circumstances in comparison with the complainant. As the circumstances are not the same as those of the complainant, or similar, I find that members of this group are not appropriate comparators.
5.31 As there is no difference in treatment between the complainant's group and the remaining group, members who are married at retirement, no less favourable treatment arises. The complainant has failed to establish facts from which it might be presumed that discrimination has occurred in respect of the payment of contributions following her separation. The complainant has therefore failed to establish a prima facie case of discrimination in respect of the payments relating to the period following her separation.
Cohabitation
5.32 The complainant stated that the respondent failed to address the cohabitation rule at the point of her retirement. The complainant stated that her spouse has been cohabiting since they separated. The rule states "A spouse's pension is not payable if he has re-married or is cohabiting with another as man and wife." An information document which supports the Pensions Declaration form issued to prospective beneficiaries states the situation as follows: "Entitlement to pension ceases on re-marriage or cohabitation. Any subsequent pension payment issued should in such an event be returned with an explanatory note. In certain circumstances pension may be resumed again on subsequent widowhood on representations being made to the Department." The operation of the Scheme clearly envisages situations where entitlement to the pension may cease and subsequently be reactivated. It is the practice of the respondent not to undertake any checks with regard to remarriage or cohabitation until a pension becomes payable on the death of a member. Since this practice applies to all members in respect of whom there is a potential outstanding claim to the Scheme regardless of their marital status, I am satisfied that the Department's failure to undertake checks in relation to cohabitation at the point of the complainant's retirement is not less favourable pension treatment based on marital status. The complainant has therefore failed to establish a prima facie case in this regard.
6 Decision
6.1 Having investigated the above complaint I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts which is in accordance with section 81J(2) of the Pensions Acts.
6.2 As the complainant has failed to establish a prima facie case of discrimination in terms of equal pension treatment on the marital status and religion grounds her claim fails in that regard.
6.3 As the complainant has failed to establish a prima facie case in respect of the family status ground and in relation to a collective agreement her claim fails in that regard.
6.4 As the complainant has failed to establish a prima facie case in relation to discrimination in accordance with the employment Equality Acts her claim fails in that regard.
Bernadette Treanor
Equality Officer
24 May 2010