The Equality Tribunal
Pension Acts 1990-2004
Decision
DEC-P2011- 001
Parties
Noreen Gibbons
(represented by SIPTU)
V
Medisize Ireland Ltd
(represented by IBEC)
File Reference: ES/2008//907
Date of Issue: 6th September 2011
Decision
DEC-P2011- 001
Noreen Gibbons
(represented by SIPTU)
V
Medisize Ireland Ltd
(represented by IBEC)
Keywords
Pension Acts 1990 2004, 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, Section 81 - redress.
Delegation under the Pension Acts, 1998-2008
The complainant referred a complaint to the Director of the Equality Tribunal under the Pension Acts, 1998 to 2008 on the 23rd December 2008. On the 12th April 2011, in accordance with his powers under section 81J of the Pension Acts which apply the relevant provisions of the Employment Equality Acts to occupational benefit schemes, the Director delegated the case to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under the Acts on which date my investigation commenced. Submissions were received from both parties. As required by the Acts and as part of my investigation, I proceeded to hearing on the on the 20th May 2011.
1. Dispute
1.1 The dispute concerns a claim by the complainant that she was discriminated against by the above named respondent on the marital status ground in terms of Section 66(2)(b) and in contravention of Section 70 of the Pensions Acts 1990 - 2008 in relation to the level of occupational benefits she receives under the Disablement Benefit Plan.
2. Summary of the Complainant's
2.1 The complainant submitted that the respondent discriminated against her on the marital status ground in the manner which they calculated her entitlement to Disablement Benefit Plan. The company has a Disability Protection Plan with Irish Life. The complainant commenced employment with the respondent on the 18th of October 1990 and she joined the pension scheme on the 1st November 1992. She went out sick in November 2005 and in November 2007 following the referral to the company consultant she was diagnosed with a long-term disability. The complainant claimed benefit under the Disablement Benefit Plan. She understood from the Members Guide to the Retirement, Death and Disablement Benefits Plans supplied to her by the respondent that she was entitled to 66⅔% of her salary less the single rate of disability benefit. The complainant's case is that she was denied any benefit under the scheme because the respondent calculated her social welfare at the married rate. The complainant is married but she is not entitled to the adult dependant rate because her husband is working. The complainant said that she always understood from the scheme that she was entitled to 66⅔% of her salary and that disability benefit was deducted at the single rate from this amount. In the Personal Statement of benefits from the Trustees which she received from time to time she understood that was the case. In her case she was earning about €450 and 66⅔% of that is €300. The company deducted the married disability benefit of €320 to €330 and therefore the complainant did not receive any money under the Disablement Benefit Plan. She said that a single person paid the same amount would receive, in addition to the social welfare single disability allowance of €188, up to an extra €100 under the Plan. The company confirmed to her by letter dated 3rd July 2008 that a predetermined/notional amount of Social Welfare is used depending on whether the employee is single or married in calculation of entitlements. She submits she was discriminated on the marital status ground in respect and the deduction of the married allowance.
3. Summary of the Respondent's Case.
3.1 The respondent denies that the complainant was discriminated against on the marital status ground disability ground in relation to the Disability Benefit protection Plan. Under the Plan a person who is totally disabled for a continuous period of 6 months is paid an income equal to 66⅔% of salary at the date of the disablement less state benefit calculated on the basis of the marital status of the applicant. It was submitted that this payment is at the discretion of the company. Any documentation which was issued to the complainant in respect of the Plan was not a legal document or a contractual document and all benefits from the Plan are governed by the Trust Deed, Insurance Policies and the relevant legislation. The respondent submitted that the complainant received a letter of the 16th November 2007 which set out the specifics of her disablement entitlements and she was asked to sign this letter to confirm that she accepted the terms of the company's Disablement Benefit Plan which she duly signed. The respondent submitted that the Company's Disablement Benefit Plan utilises a pre-determined social welfare benefit in the assessment of claims. The respondent stated that because it is an insurance group scheme it is necessary that social welfare entitlements are agreed in order to calculate potential benefits and premiums for all employees. Therefore all employees have the same benefit structure In the case of a married person the deduction is at the married rate and the single rate for a single person regardless of the actual level of disability benefit received from the state. It was submitted that they assume a level of social welfare benefit which they believe is not discriminatory. They stated that there are various factors other than marital status which affects an individual's social welfare disability benefit and the deduction used will not always reflect what an individual receives in disability benefit. In the complainant's case a deduction of €14,300 pa which is the married rate applied and this gave her a nil entitlement under the scheme. The respondent accepted that a single person in similar circumstance and on the same salary as the complainant would get €80 to €100 per week in addition to the single rate of disability benefit.
4. Conclusions of the Equality Officer
4.1 The first matter I have to consider is whether the complainant referred the complaint under the correct Act. The respondent submitted that the complaint is one which should be dealt with under the Employment Equality Acts. The Pensions Act, 1990 as amended by the Social Welfare(Miscellaneous Provisions) Act, 2004 provides at Section 65(1) that: "'occupational benefits' means benefits (other than remuneration to which sections 19 and 29 of the Employment Equality Act 1998 apply), in the form of pensions, payable in cash or in kind in respect of --
(a) termination of service,
(b) retirement, old age or death,
(c) interruptions of service by reason of sickness or invalidity,
(d) accidents, injuries or diseases arising out of or in the course of a person's employment,
(e) unemployment, or
(f) expenses incurred in connection with children or other dependants,
and, in the case of a member who is an employee, includes any other benefit corresponding to a benefit provided by virtue of the Social Welfare Acts, the Maternity Protection Act 1994 or the Health Acts 1947 to 2001 which is payable to or in respect of the member as a consequence of his employment;
4.2 The respondent submitted that any benefits which are 'remuneration' are covered by the Employment Equality Acts, 1998-2008 and are excluded from the scope of the Pensions Acts. Remuneration in the Employment Equality Acts is defined as:
''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 employee receives, directly or indirectly,
from the employer in respect of the employment;"
The respondent submitted that the complaint submitted by the complainant is in relation to a disablement benefit scheme and is not a complaint in relation to a pension entitlement. Accordingly, the respondent submitted that the Tribunal does not have jurisdiction to investigate the complaint as it has been referred under the incorrect legislation. Having considered the respondent's submission and taking into account the provisions of Section 65(1)(c) I am satisfied the Disability Plan is an occupational benefit and comes within the scope of the Pensions Acts and therefore I have jurisdiction in the matter.
4.3 The next matter I have to consider is whether the complainant was discriminated against on the marital status ground in relation to her entitlements under the Disability Plan. Section 66. -- (1) provides:
"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."
4.4 The complainant case is that she is being discriminated against on the marital status ground in relation to the benefit she receives under the company's disability plan, in that the deduction of the state disability benefit at the married rate, which includes an adult dependant rate, from the 66⅔% of her wages payable under the Plan is treating her less favourably than a single person on the same Plan. This leaves her with nil benefit whereas a single person in similar circumstances receives a benefit of between €80 to €100 per week. The complainant is married but she is not qualified for the adult dependant rate of disability benefit. The company accepts that the plan initially provided that the single rate of disability benefit applied to the Plan but sometime in 1999 the terms of the scheme were changed and it was decided to apply the married rate or single rate as appropriate regardless of the amount of disability benefit an applicant receives or is qualified for. They accept that they did not notify the employees of this change.
I am satisfied that the complainant has established that she is treated less favourably than a single person in a comparable situation in that she receives no benefit from the Disability Plan operated by the respondent whereas a single person receives a benefit of up to €100 per week. Accordingly I find that the complainant has established a prima facie case of discriminatory treatment on the marital status grounds in relation to the rules of the Plan in terms of Section 66 and contrary to Section 70 of the Pensions Acts which the respondent has failed to rebut.
5 DECISION
Having investigated the above complaint, I hereby make the following decision in accordance with section 81E of the Pensions Acts:
The respondent did discriminate against the complainant on the marital status ground pursuant to Section 66(1)(a) and 66(2)(b) and in terms of Section 70 of the Acts in relation to the rules of the Disablement Benefit Plan.
Section 81. -- (1) provides: "Subject to subsection (5), where a rule of a scheme does not comply with the principle of equal pension treatment on any ground other than the gender ground or the ground of race, it shall, to the extent that it does not so comply, be rendered null and void by the provisions of this Part with effect from the date on and from which it purports to have effect, not being a date earlier than the 2nd day of December, 2003 and the more favourable treatment accorded to X (or Y as the case may be) shall be accorded to Y (or X as the case may be) in respect of periods of membership in that scheme, or periods of denial of access to that scheme, up to the date on which the rule is amended to comply with the principle of equal pension treatment in respect of the relevant discriminatory grounds."
Section 81H. -- (1) provides for redress and states:
"Subject to this section, the types of redress for which a decision of the Director on a reference under section 81E may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:
(a) an order requiring that section 80 or 81 be complied with;
(b) an order that a person or persons specified in the order implement the principle of equal pension treatment from the date on which the rule of the scheme is amended to comply with an order under paragraph (a);
(c) an order that a person or persons specified in the order take a course of action which is specified in the order from a date so specified;
I order the respondent to comply with Section 81 of the Acts. I order the leveling-up of the benefit payable to the complainant commencing on the 4th of May 2006 for the various periods the complainant has qualified for benefit from that date under the Disablement Benefit Plan in accordance with Section 81.
I order the respondent to change the rules of the Disablement Benefit Plan to reflect the actual disability benefit a beneficiary under the Plan receives, rather than applying a notional married rate of disability benefit, in order to comply with the principle of equal pension treatment.
_____________________
Marian Duffy
Equality Officer
6th September 2011