Pensions Acts 1990 - 2008
Decision of Equality Officer
DEC-P2011-005
Parties
Helen Bradley
versus
City of Dublin Vocational Education Committee
File reference: EE/2008/703
Date of issue: 16 November 2011
Keywords: Pension Acts 1990 to 2008, Rules of Occupational Benefit Scheme, Section 65(1)(a-f) - occupational benefits, Section 66(1) - discrimination and less favourable treatment, Section 66(2)(b) - marital status, Section 70 - principle of equal pension treatment, Section 76(1) - Burden of Proof
1. Dispute
This dispute concerns a claim by Ms Helen Bradley (the "complainant") that she is discriminated against on the grounds of marital status in terms of Section 66 2 (b) and in contravention of Section 70 of the Pensions Acts 1990 - 2008. As a teacher employed by City of Dublin Vocational Education Committee (the "respondent"), Ms Bradley is obliged to pay contributions of 1½ per cent of salary to the Spouses' and Childrens' Pension Scheme. Ms Bradley is single and has always been. She argues that she is obliged to pay monies into a scheme from which she cannot benefit in any way at present, effectively insuring herself against a risk that cannot happen.
The Equality Tribunal received a complaint under the Pensions Acts from the complainant on 15 October 2008. The complainant made a detailed submission on 30 April 2009. A response was received from the respondent on 8 May 2009. A joint hearing was held on 8 March 2011.
2. Summary of complainant's case
Ms Bradley argues that she never had a choice whether or not to pay into the scheme, even though she has always been and remains single and childless. If her personal circumstances do not change up to the date of her retirement she will not be entitled to a refund of the contributions she provides the spouses' and children's scheme, even though she is and has always been and remains single and childless. She contrasts her position with that of some of her married colleagues who can benefit from the fund into which they and she contribute. Moreover, some of her colleagues (those who had joined before 1984) will get back all their contributions to the scheme on retirement if they remained single. She submits that she is being treated less favourably than a married person because as a single person she will have no survivors who qualify for benefit under the scheme and she will have paid a considerable sum of money into the scheme which will not be returned to her when she retires as a single person. She claims that she is being treated unfairly since she is required to pay into the Spouses and Children scheme while some of her work colleagues cold opt out. Unlike some of her single and childless colleagues she will not get her contributions returned to her on her retirement.
3. Summary of the Respondent's Case.
3.1 The respondent submitted that the complainant was first employed by the city of Dublin VEC as an equivalent part time teacher of computer studies on 25 October 1996. VEC teachers are covered by the Local Government Officers Pension schemes. In the year 2000 she was admitted to the Local Government Officers pension scheme with retrospective effect from 25 October 1996. Membership of the spouses' and childrens' scheme is compulsory for all pensionable staff, regardless of marital status, that commenced employment on or after 1 January 1986. This scheme replaced the Widows' and Orphans' Scheme.
The Widow's and Orphan's Scheme protected the spouse of a member if the marriage took place before retirement. It covered the legitimate children of a member if they were conceived before retirement and if the member was married during the period of contributing membership. The scheme did not cover illegitimate children of members. Step children of members were covered if the member was married during the period of contributing membership and the member's marriage to the child's parent took place before retirement. It covered the adopted children of a member if the member was married. Membership of the Widows and Orphans scheme was compulsory for male pensionable officers who joined on or after 1 January 1970 and to female staff appointed on or after 1 October 1984. Staff pensionable prior to those dates were given an option to join the Widows and Orphans scheme. Members of the scheme pay a contribution of 1.5% of pay. The scheme entitled spouses and qualifying children of a contributing member to a pension should they survive the member. Members of the Widows and Orphans scheme, who are single at the time of retirement, are refunded their contributions.
3.2 The Spouses and Childrens scheme is a separate scheme from the original scheme and provided an extended range of benefits to members to include benefit cover for (i) the spouse and children of a member who marries after retirement, (ii) children of members born outside marriage and step-children of the member, (iii) children conceived after a members retirement, and (iv) children of a member whose spouse died before his or her membership began. Contributions to the revised scheme remained the same at 1.5% of pay and arising from the additional benefits now being provided the full refund of contributions for members who were single on retirement as provided for in the original scheme was discontinued. The Widows and Orphans Scheme is no longer open to new members with effect from 1 January 1986.
4. Conclusions
4.1 I have to consider is whether the complainant was discriminated against on the marital status ground in relation to Local Government Officers Spouses' and Children's Pension Scheme. The Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act, 2004 provides at Section 66 --
"For the purposes of this Part, discrimination shall be taken to occur where --
(a) 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 mentioned in subsection (2) (in this Part referred to as the 'discriminatory grounds') ........
(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Part) are -- ....................
(b) that they are of different marital status (in this Part referred to as 'the marital status ground'),
Section 70 states: "(1) 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."
The burden of proof under section 76 -- (1) provides:
"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 The complaint submitted that she is being unlawfully discriminated against on the marital status ground in relation to having to join and contribute to the Local Government Officers Spouses' and Children's Pension Scheme, a scheme she says she will derive no benefit from because she is unmarried and she does not intend to get married. She further submits that it is discriminatory treatment not to refund the contributions she has made to the scheme on retirement as happens for single members of the original scheme. The respondents case is that they are two different schemes and the revised Scheme introduced in January 1986 provides enhanced benefits and it now covers spouses and children on the death of a member who may have got married after retirement or who may have had qualifying children within or outside marriage. In order to meet the additional costs of the wider definition of beneficiaries in this scheme in comparison to the original scheme, the contribution refund arrangements were made more restrictive.
4.3 The respondent submitted that under the original scheme a single person on retirement was refunded their contributions, but a married person and in particular women who could not join the scheme prior to 1984, are usually short of 40 years contributions at the time of retirement and that shortfall has to be deducted from their lump sum. In relation to the revised scheme, single members no longer qualify for a refund of contributions but in the event of a shortfall in contributions to the scheme a married person has a deduction of the shortfall made from the lump sum and a single person's contributions cease on retirement even though that person may get married or have children post retirement and in that situation the member's new spouse and qualifying children continues to be covered by the scheme in the event of the death of the member. The respondent submitted that the complainant has failed to establish less favourable treatment on the marital status ground in that the comparator she refers to in the original scheme is a single person and is treated more favourably than her (a single person in the original scheme gets a refund of contributions on retirement).
4.4 The matter I have to consider is whether the respondent in amending the rules of the pension scheme which amongst other things discontinued the refund of contributions to single employees on retirement as had been the practice in the original scheme for members who joined before to 1 January 1986 is discriminatory on the marital status ground.. I note that the revised scheme of 1 January 1986 applied to all new recruits regardless of their gender or marital status. The complainant is seeking to compare her situation that of a single person who joined the original scheme prior to 1 January 1986 and is single at retirement.
Section 66 (1) of the Act provides that discrimination shall be taken to occur where a person is treated else favourably than another person, is, has been or would be treated in a comparable situation on any of the discriminatory grounds. The discriminatory ground under which the complainant has taken her case is the marital status ground. Marital status is defined in Section 65 (1) of the Act as 'single, married, separated, divorced or widowed'. Therefore, as a single person, the complainant cannot compare herself with someone who is single in order to determine whether she is receiving equal pension treatment with that person within an occupational benefit scheme governed by the Act. Therefore the complainant cannot establish that she was treated less favourably than another person with a different marital was treated or would be treated in similar circumstances. The complainant is being treated the same as every other VEC teacher recruited since 1 January 1986 as regards the refund of contributions and she is also treated the same as married teachers who are members of the original scheme at the time of retirement as they do not get a refund of contributions on retirement. Accordingly the complainant has failed to establish a prima facie case of discriminatory treatment in relation to this aspect of her complaint
4.5 I note that Section 72 (2) of the Act provides:
(2) It shall not constitute a breach of the principle of equal pension treatment on the marital or family status ground for a scheme to provide more favourable occupational benefits where those more favourable benefits are in respect of any person in respect of whom, under the rules of the scheme, a benefit is payable on the death of the member, provided that this does not result in a breach of the said principle on the gender ground.
(3) It shall not constitute a breach of the principle of equal pension treatment on the marital status or sexual orientation ground to provide more favourable occupational benefits to a deceased member's widow or widower provided that it does not result in a breach of the said principle on the gender ground.
Therefore it is not a breach of the principle of equal pension treatment on the marital status ground for the surviving spouse or qualifying children of a deceased member to receive more favourable benefits, provided that it is not discriminatory on the gender ground, that is, a widower would be entitled to the same benefits as a widow and vice versa. I find that Section 72(2) above is a defence to the complainant's argument that she is being discriminated against on the marital status ground in relation to the rules of the scheme. I find that the rules contained in the Local Government Officers Spouses' and Children's Pension Scheme are not unlawful and it is not discriminatory treatment on the marital status ground for the respondent to provide more favourable benefits to a married person. Therefore, I find that the respondent is not discriminating against the complainant regarding the rules (the mandatory requirement to join and contribute to the scheme) of its survivor benefit scheme in terms of Section 66 (2) (b) and in contravention of Section 70 of the Act.
5. Decision
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:
The complainant has failed to establish a prima facie case of discrimination on the marital status ground in terms of equal pension treatment and her claim fails in that regard.
__________________
Niall McCutcheon
Director
16 November 2011