The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
&
PENSIONS ACTS
DECISION NOS.
DEC-E2011-240
&
DEC-P2011-006
PARTIES
Vicki Ashmore
(Represented by Roderick Maguire BL instructed by
Daniel Spring & Co Solicitors)
AND
The Nationalist & Leinster Times Limited
(Represented by Stephen O'Sullivan BL, instructed by
Ronan Daly Jermyn Solicitors)
&
Trustees of the Irish Master Printers Association Pension and Life Assurance Scheme
&
Administrators of the Irish Master Printers Association Pension and Life Assurance Scheme
(Both represented by A&L Goodbody Solicitors)
File reference: EE/2006/291 & EE/2006/292
Date of issue: 16 December 2011
HEADNOTES: Employment Equality Acts - Sections 6 and 8 - Gender - Access to Employment, Conditions of Employment, Equal Pay, Collective Agreement.
Pensions Act - access to pension scheme
1. DISPUTE
1.1. This dispute concerns a claim by Ms Vicki Ashmore that she was discriminated against by The Nationalist and Leinster Times Limited and the Trustees and Administrators of the Irish Master Printers Association Pension & Life Assurance Scheme (the IMPA Scheme) on the grounds of gender contrary to section 6 of the Employment Equality Acts in relation to access to employment, conditions of employment and made a claim in relation to equal pay, and a collective agreement under section 86 of the Employment Equality Acts. Ms Ashmore also made a claim under the Pensions Acts that she was not allowed to join an occupational pension scheme on the grounds of her gender against The Nationalist and Leinster Times and the Trustees and Administrators of the Irish Master Printers Association Pension & Life Assurance Scheme (the IMPA Scheme).
1.2. The complainant referred her claims to the Director of the Equality Tribunal on 8 August 2006 under the Employment Equality Acts and the Pension Acts. On 12 May 2010, in accordance with her powers under section 75 of the Acts, the Director delegated both cases to me, Hugh Lonsdale, 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. Submissions were received from all parties. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 23 September 2010 and final information was received on 4 November 2010.
2. COMPLAINANT'S SUBMISSION
2.1. The complainant submits that she started working for the first named respondent on a temporary basis in August 1998. On 1 May 2001 she was made a permanent part-time general worker, undertaking typesetting and other duties. In April 2009 her salary was €28,000 for a 28 hour week. There were 10 workers in the production sector, including the complainant, nine of whom were doing like work, plus a supervisor. Of the nine, five were male and four female; 3 part-time and 1 full-time.
Pension
2.2. The complainant submits that a pension scheme is part of pay and cited Barber v Guardian Royal Exchange and Labour Court - Linson v ASTMS EP1/1977; DEP 2/1977. She submits that she was refused access to the IMPA Scheme. It was a defined benefit scheme in which the first named respondent contributes 14.84% and the employee contributes 8.8%. The only scheme open to the complainant was the TCH defined contribution Scheme, in which the first named respondent contributes 5% and the member contributes 6%. Almost all the members of this scheme are female.
2.3. Before 1998 the IMPA Scheme was limited to full-time qualified craft workers, who were predominantly male. The complainant submits that the Scheme was directly discriminatory prior to 1998 as it was restricted to qualified craft workers who were predominantly male.
2.4. After 1998 the eligibility was changed and all full-time permanent workers were automatically joined into the Scheme. The membership was still predominantly male. Part-time workers still had no automatic right to join the Scheme and had to apply to the first named respondent to join. The complainant applied to join on 13 April 2004 and 17 February 2006 but she was refused. The complainant submits that the rules of entry of the Scheme amount to indirect discrimination against females, as all the part-time workers are female. The Scheme was closed to new members since March 2006. The complainant does not accept that any under-funding of the Scheme is objective justification for refusing her entry to the Scheme.
2.5. After the complainant made this complaint she was provided with figures from the respondent which purport to show that she be would be better off in the TCH Scheme. The complainant does not accept these figures.
2.6. The complainant considers the Scheme to be discriminatory on the grounds of gender and names the second and third respondents as those responsible for operating a discriminatory Scheme.
Equal Pay & Collective Agreement
2.7. The complainant submits that, as a result of a collective agreement, all employees recruited after 28 April 1998 were paid at 80% of the rate of employees recruited before the collective agreement came into effect prior to 1998. The vast majority recruited after the collective agreement came into effect are female, including the complainant. The complainant named Mr Paddy Hayden as a comparator who is a full-time employee performing the same work as the complainant who started working for the respondent prior to 28 April 1998 and who is also a member of the IMPA Scheme.
2.8. Furthermore the complainant submits that pension contributions are part of pay and she is receiving less of a contribution to her pension than her male colleagues; 5% of pensionable salary as opposed to 14.85% paid into the pension of her male colleagues.
2.9. The complainant submits that the pay differential is a result of a collective agreement and this is also discriminatory under section 9 of the Acts.
Conditions of Employment
2.10. The complainant also submits that those recruited after 1998 did not get tea money when they worked after 6pm and do not get averaged holiday pay in respect of overtime, whereas her male colleagues are paid these allowances.
3. SUBMISSION OF RESPONDENT ONE - The Nationalist & Leinster Times
3.1. The first named respondent confirmed that the complainant started work for them on 1 May 2001 as a permanent part-time typesetter in the prepress area. She had worked for them previously but there had been breaks in service. She works 28 hours per week.
Pension
3.2. The first named respondent submits that the complainant made the same claim in respect of access to the IMPA Scheme under the Protection of Employees (Part-Time) Work Act, 2001 and, in accordance with section 101A of the Acts cannot make the same claim under the Employment Equality Acts.
3.3. The first named respondent submits that it operates two pension schemes; the IMPA (defined benefit) Scheme and the TCH (defined contribution) Scheme. The complainant joined the TCH plan on 20 September 2005. In October 2006 the TCH scheme had 3 male and 2 female members from the respondent. Across all TCH companies the Scheme had 117 male and 124 female members.
3.4. The first named respondent had discretion to allow the complainant entry to the IMPA Scheme and this was refused following her application on 17 February 2006. Entry was refused because the scheme was seriously under-funded and was formally closed to new members from 1 March 2006. Retired Scheme members would have priority entitlements to monies over deferred and active members, such as the complainant, in the event of a wind-up, and the complainant was already a member of the TCH Scheme from 20 September 2005. They have no record of the complainant applying to join IMPA scheme 13 April 2004.
3.5. The first named respondent submits that the TCH Scheme would exceed the benefits under the IMPA scheme. Furthermore the TCH Scheme also provides PHI cover.
3.6. The first named respondent submits that the gender balance of membership of the IMPA and TCH Schemes is entirely incidental/historical and not based on discrimination.
Equal Pay & Collective Agreement
3.7. The first named respondent submits that the collective agreement arose out of serious economic difficulties that it was facing. The complainant was paid the full rate that was agreed in the agreement for staff recruited after 29 April 1998. The respondent accepts that the complainant does like work with the comparator and that he is a member of the IMPA Scheme. The comparator started work for the first named respondent prior to 28 April 1998. The first named respondent submits that the complainant is paid the same as the comparator less a pre 1998 "house rate" which was eliminated under the agreement but retained by those employed before the agreement. The first named respondent submits that the complainant is paid 90.17% of the rate of the comparator and not 80% as alleged.
3.8. The first named respondent submits that the complainant argued this same point to the Rights Commissioners and was unsuccessful. She was granted relief to give her the same rate of pay as a full time worker employed after 1998.
3.9. The respondent submits that the complainant is estopped from pursuing this issue again under section 101A of the Acts which states: "Where the conduct of an employer constitutes both a contravention of Part III or IV and a contravention of either the Protection of Employees (Part-Time Work) Act 2001 or the Protection of Employees (Fixed-Term Work) Act 2003, relief may not be granted to the employee concerned in respect of the conduct under both this Act and either of the said Acts".
3.10. The first named respondent denies that all those recruited after the new rates came into effect are female. Two men were recruited in 2006 and paid the same rate as the complainant. Two women have been recruited since 1998, the complainant and one other.
3.11. The first named respondent submits that in accordance with section 19 (4) (b) of the Acts the difference in pay is objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary. The new rates were necessary to sustain the financial viability of the company and those employed before the agreement were allowed to retain the rate existing at that time because of the compromises they made as part of the agreement. The first named respondent also cites section 19 (5) of the Acts which states "subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees" and submits that the difference in remuneration is not by reason of gender.
3.12. The first named respondent denies that the collective agreement is discriminatory on the grounds of gender and that the complainant has failed to show that the collective agreement gives rise to indirect discrimination.
Conditions of Employment
3.13. The first named respondent submits that the tea money and averaged holiday pay procedures are well established and paid where appropriate on submission of a claim. The complainant has never made a claim.
4. SUBMISSION OF RESPONDENT 2 - Trustees of the IMPA Scheme
4.1. The Irish Pensions Trust (IPT) submits that, although not specifically named by the complainant, it is the second named respondent as it is the appointed trustee to the IMPA Scheme. The IPT is a pension trustee service provider which acts as a pension trustee to many Irish pension schemes. It takes instructions from employer clients and assists with the mechanics of administering trustee responsibilities. It has a role in the registration of the scheme, monitoring of contributions, investing funds, paying benefits, maintaining records, preserving or transferring benefits and ensuring fund standards are met.
4.2. The IPT has no role in deciding on applications made by individual employees for admission to the Scheme or in deciding on contribution rates or in deciding the terms and conditions of employment of employees of the Scheme employer
4.3. The second named respondent submits that it is a separate legal entity to the other two respondents.
4.4. The second named respondent submits that the Irish Master Printers Association is the "Principal Employer" and a number of employers, including the first named respondent were "Associated Employers". The first named respondent decided on applications to the scheme and they, the second named respondent, had no role in the decision not to admit the complainant and they were unaware that an application was made.
5. SUBMISSION OF RESPONDENT 3 - Administrators of the IMPA Scheme
5.1. Mercer (Ireland) Limited (Mercer) submits that, although not specifically named by the complainant, it is the third named respondent as it is Administrator to the IMPA Scheme. The third named respondent submits that it provides commercial services to employer and trustee clients required for ongoing administration of pension schemes. It takes instructions from those clients and assists them with the mechanics of administering the scheme. Its' services include member record-keeping and administration, providing individual benefit calculations, providing member benefit statements, making routine benefit payments, compiling pension fund accounts and drafting trustee annual reports.
5.2. The third named respondent submits that it has no role in relation to the rules of the scheme, deciding on admission of members to the Scheme, deciding on Scheme contribution rates or the terms and conditions of employment of employees of the Scheme employer.
6. FINDINGS & CONCLUSION
6.1. At the hearing the complainant withdrew her claim regarding conditions of employment. Therefore, I have to decide if the complainant was discriminated against under section 8 of the Employment Equality Acts in relation to access to employment and equal pay and if the respondent failed to provide equal pension treatment in relation to access to a pension scheme in terms of sections 69 and 70 of the Pensions Acts on the grounds of gender. I also have to decide on the collective agreement in accordance with section 86 of the Employment Equality Acts. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
Preliminary Issue
6.2. The first named respondent contends that the complainant is estopped from pursuing her claims in relation to access to the IMPA Scheme and of equal pay because she took a similar claim regarding both areas under the Protection of Employees (Part-Time Work) Act 2001 and section 101A of the Acts precludes a claim also being made under the Employment Equality Acts. The complainant responded that she was not granted relief under the Protection of Employees (Part-Time Work) Act 2001 and is therefore fully entitled to make these claims.
6.3. The Rights Commissioner did grant the complainant the same rate of pay as a full-time colleague who was employed after the 1998 agreement. The claim before me for equal pay under the Employment Equality Acts is made with a male comparator who was employed before 1998. This claim is therefore not similar to that taken by the complainant under the Protection of Employees (Part-Time Work) Act 2001.
6.4. The complainant did make a claim under the Protection of Employees (Part-Time Work) Act 2001 that she was treated unfairly by being excluded from membership of the IMPA Scheme. The Rights Commission found that she was not treated less favourably than a comparable full-time employee and she was not awarded any relief in relation to this claim.
6.5. Section 101A states: "Where the conduct of an employer constitutes both a contravention of Part III or IV and a contravention of either the Protection of Employees (Part-Time Work) Act 2001 or the Protection of Employees (Fixed-Term Work) Act 2003, relief may not be granted to the employee concerned in respect of the conduct under both this Act and either of the said Acts". I therefore conclude that as no relief was granted in relation to her claim under the Protection of Employees (Part-Time Work) Act 2001 I am allowed to carry out my investigation of her claims under the Employment Equality Acts.
Pension
6.6. Section 70 of the Pension Acts states: "the principle of equal pension treatment is that there shall be no discrimination on any of the discriminatory grounds in respect of any rule of a scheme" and Section 78 of the Pension Acts extends that principle to access to a pension scheme and states: "An employer shall comply with the principle of equal pension treatment in relation to the manner in which he affords his employees access to a scheme." In this claim I have to decide if the complainant was not allowed access to the IMPA Scheme because of her gender.
6.7. The IMPA Pension Scheme is an industry-wide scheme for the printing industry which was originally only open to qualified craft workers. This was changed when a Trust Deed for the Scheme amended eligibility with effect from 1 March 1998 that "any full-time permanent employee is eligible for membership of the scheme". This meant that full-time non-qualified workers in the same category as the complainant were entered into the Scheme from 1 March 1998.
6.8. Further amendments to the Scheme were made on 5 May 2004 and stated "on or after 1st March 2000 a full-time non-qualified craft worker (as determined by and at the sole discretion of the employer) may be invited to join the Scheme for full benefits" and "With effect from 15th December 2001 the word "full-time" shall be deleted from paragraphs (iv) and (v) of Rule 2(a)" which refers to the amendment above.
6.9. The effect of these amendments on the category of workers that the complainant is in is that:
- from 1 March 1998 to 1 March 2000 full-time permanent non-qualified craft workers were automatically entered into the Scheme,
- from 1 March 2000 to 15 December 2001 full-time permanent non-qualified craft workers were eligible to join the IMPA Scheme at the discretion of their employer, and
- from 15 December 2001 onwards part-time and full-time permanent non-qualified craft workers were eligible to join the Scheme at the discretion of their employer.
- The second and third amendments were made retrospectively from 5 May 2004.
6.10. The complainant, who was a part-time permanent non-qualified craft worker has claimed indirect discrimination in relation to access to the Scheme. Section 68 of the Acts states "indirect discrimination occurs where an apparently neutral rule of the scheme concerned puts persons who differ in respect of any of the discriminatory grounds compared with other persons, being members or prospective members of that scheme." Section 66 of the Pensions Acts, 1990-2004 states "discrimination shall be taken to occur where ... a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds"
6.11. Firstly I have to look at what is a "comparable situation". The complainant has compared herself as a part-time non-qualified worker to the qualified craft workers. The two groups, qualified craft workers and non-qualified craft workers, enjoy different terms and conditions of employment. This is because they undertake different work based on their respective levels of training. The IPMA Scheme was established for qualified craft workers and more recently, but before the complainant became a permanent employee, had been expanded to include non-qualified craft workers.
6.12. I therefore cannot accept the complainant is in a "comparable situation" with a qualified craft worker. However, the complainant, as a part-time non-qualified craft worker, undertakes the same work and by-and-large shares the same conditions of employment as full-time non-qualified craft workers. Therefore, in looking at indirect discrimination, I must compare the group of part-time non-qualified craft workers with the group of full-time non-qualified craft workers.
6.13. The UK Court of Justice in Enderby v Frenchay Health Authority, C-127/92, [1991] IRLR 43, stated; "Where significant statistics disclose an appreciable difference in pay between two jobs of equal value, one of which is carried out almost exclusively by women and the other predominantly by men, Article 119 of the Treaty requires the employer to show that the difference is based on objective justification unrelated to any discrimination on grounds of sex." This was interpreted by the Labour Court in the Irish Aviation Authority case, as: "The Court accepts that the degree of gender imbalance referred to in Enderby must be considered in the context of the material facts of that case as set out in the reference by the Court of Appeal in England and Wales. It does, however, indicate that the Court of Justice considered that the degree of gender imbalance in both the claimant and the comparator grade must be particularly marked before a prima-facie case of discrimination can arise."
6.14. Whilst the cases cited deal with equal pay claims the same principles would apply when looking at a claim of indirect discrimination in relation to access to a pension scheme. There are nine people in the group of non-qualified craft worker; of these four are full-time (all four are male) and five part-time (one is male and four are female). Thus the part-time group is predominantly female and the comparator group exclusively male.
6.15. From the time she was made permanent on 1 May 2001 until 15 December 2001 the complainant had no eligibility to join the scheme whilst a full-time permanent non-qualified craft workers was eligible to join the IMPA Scheme at the discretion of their employer. From 15 December 2001 onwards part-time and full-time permanent non-qualified craft workers were both eligible to join the Scheme at the discretion of their employer.
6.16. These were both formally adopted as rules of the IMPA Scheme retrospectively from 5 May 2004. The first named respondent contends that these amendments were implemented in practice much earlier. The second named respondent submitted an Explanatory Booklet to the Scheme for 2003 which made no distinction between part-time and full-time non-qualified craft workers. It included a note that "part-time employees are eligible for inclusion in the Scheme".
6.17. Section 76 of the Pensions 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."
Respondent 1 - The Nationalist & Leinster Times Limited
6.18. The complainant contends the first named respondent denied her access to the IMPA Scheme on the grounds of her gender. The first named respondent counters that they objectively justified in not using their discretion to enter the complainant into the IMPA Scheme because the Scheme was underfunded and they had concerns about its' ongoing viability and the TCH Scheme was available and a better Scheme for the complainant. It is also clear that the employer's contribution was almost 10% less for the TCH Scheme.
6.19. The complainant became permanent on 1 May 2001 and part-time non-qualified craft workers had no eligibility to join the Scheme until 15 December 2001, after which they had the same eligibility as their full-time colleagues. The inclusion of part-time workers was made retrospectively by deed on 5 May 2004. The second named respondent says the change came into practice before the Deed but there is no evidence the inclusion of part-time workers was made public before the publication of the 2003 Explanatory Booklet to the Scheme. The complainant contends she applied to join the Scheme on 13 April 2004 and 17 February 2006 and the Explanatory Booklet would have indicated that part-time workers were eligible to apply in the same way as full-time colleagues.
6.20. The second named respondent confirmed that no one working for the first named respondent was entered into the IPMA Scheme after 1998. The complainant provided no evidence that any full-time colleagues were admitted to the Scheme during this period. The Scheme has a number of employer members in the print industry and the second named respondent provided evidence that a number of employees from some of the other employers were joined into the Scheme.
6.21. I conclude that the first named respondent did not use its' discretion to allow the complainant to join the IMPA Scheme but there is no evidence that it exercised this discretion manner by allowing full-time non-qualified craft workers to join the Scheme. I therefore find that the complainant has failed to establish a prima facie case of discrimination in relation the access to the IMPA Scheme under the Pensions Acts.
Respondent 2 - The Irish Pensions Trust (IPT) - Trustees of the Irish Master Printers Association Pension and Life Assurance Scheme
6.22. The complainant contends that the rules of the Scheme are indirectly discriminatory for her as a part-time worker because she did not have the same access to the Scheme as full-time workers.
6.23. Under the Pensions Acts the IPT as trustees of the IPMA Scheme must ensure that the Scheme complies with the principles of equal pension treatment. As stated earlier section 70 of the Pensions Acts states: "the principle of equal pension treatment is that there shall be no discrimination on any of the discriminatory grounds in respect of any rule of a scheme" and section 78 of the Pensions Acts extends that principle to access to a Pension Scheme.
6.24. For most of the time whilst the complainant has worked for the respondent the IPMA Scheme had rules which gave equal access to part-time and full-time non-qualified craft workers. However, from 1 May 2001 until 15 December 2001 full-time workers has access to the Scheme at the discretion of their employer and part-time workers had no eligibility. Furthermore there is no evidence the subsequent change to include part-time workers was advised to part-time before the publication of the 2003 Explanatory Booklet.
6.25. The IPT as trustees of the Scheme cannot be directly aware of the gender breakdown of part-time and full-time workers. However, given their responsibilities for Equal Pension Treatment and that it is generally known that the majority of part-time workers are female I conclude that they should have made enquiries to see if a Rule excluding part-time workers would have been indirectly discriminatory in accordance with section 68 of the Pensions Acts. It is clear they did not make these enquiries and from the gender breakdown of the non-qualified craft workers in the first named respondent I conclude that the exclusion of part-time workers was probably indirectly discriminatory at that time. I note that the Scheme was subsequently amended to include the rights of access to part-time and full-time workers at least from the publication of the 2003 Explanatory Booklet for the Scheme. Also, the second named respondent had no knowledge of the complainant's application to join the Scheme, as the first named respondent did not use its' discretion to allow her to join.
6.26. I conclude the second named respondent as trustees of the Scheme had complied with their obligations under the principle of equal pension treatment under the Pensions Acts before the complainant applied to join the Scheme. I therefore find that the complainant has failed to establish a prima facie of discrimination under the Pensions Acts in relation to the IPT.
Respondent 3 - Mercer (Ireland) Limited - Administrators of the Irish Master Printers Association Pension and Life Assurance Scheme
6.27. No evidence has been presented that the third named respondent had any responsibility for the principle of equal pension treatment in relation to the IMPA Scheme. I conclude that the complainant has failed to establish a prima facie case of discrimination under the Pensions Acts in relation to Mercer (Ireland) Limited.
Equal Pay & Collective Agreement
Pay Rates
6.28. The complainant, as a part-time worker, claims equal pay with a named comparator who is a full-time worker who is carrying out like work. The first named respondent accepts that the complainant and the named comparator carry out like work. There is a difference in pay because the comparator was employed before the 1998 Agreement and the complainant was employed after the 1998 Agreement. The first named respondent contends there are grounds other then gender for the difference in pay, in accordance with section 19 (5) of the Acts.
6.29. The 1998 Agreement introduced different rates of pay between full-time and part-time staff employed after it was introduced. However, these differences were addressed in a recommendation issued by a Rights Commissioner dated 26 April 2005 following a claim made by the complainant under the Protection of Employees (Part-Time) Work Act 2001, which gave her equal pay with full-time colleagues retrospectively from 20 December 2001. The complainant is now earning the same rate of pay as all staff in her grade employed after the 1998 Agreement.
6.30. I am therefore investigating whether the difference between those employed before and after the Agreement is discriminatory on the grounds of gender. As I am looking at a difference between two groups of workers this falls into the category of indirect discrimination under section 19 (4) which states:
(a) Indirect discrimination occurs where an apparently neutral provision puts persons of a particular gender at a particular disadvantage in respect of remuneration compared with other employees on their employer.
(b)Where paragraph (a) applies, the persons referred to in that paragraph shall each be treated for the purposes os subsection (1) as complying or, as the case may be, not complying with the provision concerned, whichever results in the higher remuneration, unless the provision is objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary.
6.31. I am looking at different groups than the pension claim. In this claim for equal pay the claimant's group of nine non-qualified workers employed after 1998; five were male and four were female. I conclude that this group is not predominantly and therefore find that the complainant is unable to demonstrate a prima facie case of discrimination.
Employer's Pension Contribution
6.32. The complainant has also made a claim of equal pay in relation to the reduced contribution that the first named respondent is making to the TCH Scheme than if she had been a member of the IMPA Scheme. Section 2 of the Acts defines remuneration "in relation to an employee, does not include pension rights but, subject to that, includes any consideration, whether in cash or in kind, which the employer receives, directly or indirectly, from the employer in respect of the employment". The Labour Court in Determination No. FTD066, considered this issue. Whilst it was an appeal under the Protection of Employees (Fixed -Term Work) Act, 2003 I consider it relevant to this case as their definition of remuneration is: "a) any consideration, whether in cash or in kind, which the employee receives, directly or indirectly, from the employer in respect of the employment, and (b) any amounts the employee will be entitled to receive on foot of any pension scheme or arrangement."
6.33. I accept that an employer's pension contribution can be considered to be part of remuneration. The respondent paid the correct amount of contribution to the TCH Scheme. This claim is essentially a repeat of the claim that the complainant should have been entered into the IMPA which I have investigated under the Pension Acts. I conclude that the complainant has failed to establish a prima facie case of discrimination in relation to the respondent's contribution to the TCH Scheme.
Collective Agreement
6.34. The complainant has asserted that the 1998 Agreement was discriminatory as it established the different pay rates. However, I have found that the different rates are not discriminatory and therefore cannot find that the Agreement could be discriminatory under section 86 of the Employment Equality Acts.
Access to Employment
6.35. At the hearing the complainant submitted that her claim in relation to access to employment related to the difference in pension contributions. Access to employment claims relate to cases of recruitment or entry to employment. In this claim the complainant was already working for the complainant. I therefore find that the complainant has failed to provide a prima facie case in relation to access to employment.
7. DECISION
I have investigated the above complaints and make the following decisions in accordance with the Employment Equality Acts and the Pension Acts that:
In relation to respondent 1 - The Nationalist & Leinster Times Limited:
- the complainant has failed to establish a prima facie case of discrimination in relation to access to employment,
- the complainant has failed to establish a prima facie case of discrimination regarding her equal pay claims in relation to pay rates and the employer's pension contribution,
- that the complainant had failed to establish a prima facie case of discrimination in relation to a collective agreement,
- the complainant has failed to establish a prima facie case of discrimination in relation to access to the IMPA Scheme.
In relation to respondent 2 - The Irish Pensions Trust (IPT):
- the complainant has failed to establish a prima facie case of discrimination in relation to access to the IMPA Scheme .
In relation to respondent 3 - Mercer (Ireland) Limited:
- that the complainant has failed to establish a prima facie case of discrimination in relation to access to the IMPA Scheme.
____________________
Hugh Lonsdale
Equality Officer
16 December 2011