DEC-P2013-004

The Equality Tribunal

The Pensions Acts

Decision DEC-P2013-004

PARTIES

David L Parris

(Represented by Marguerite Bolger, S.C.,

and Eilis Barry, B.L.,

instructed by Sheehan and Partners)

- V -

Trinity College Dublin,

(Represented by Arthur Cox)

The Higher Education Authority,

The Department of Public Expenditure & Reform

and

The Department of Education & Skills

File references: PEN/2011/001, PEN/2012/001, PEN/2012/002 & PEN/2012/010

Date of issue: 16 December 2013

Keywords – Pensions Acts – Discrimination in the rules of an occupational pension scheme – Age – Sexual Orientation - Civil Status – Combination of Grounds – Defence – Ultra Vires

1. DISPUTE

1.1 This dispute concerns a claim by the complainant that he was discriminated against by the respondents on the grounds of his age, sexual orientation and civil status in terms of Section 66(2) of the Pension Acts (hereafter referred to as “the Acts”) and contrary to Sections 70 and 78 of the Acts in the operation of the rules of an occupational pension scheme.

1.2 The complainant referred claims of discrimination to the Director of the Equality Tribunal on 15 June 2011 under the Acts. On 14 and 19 February 2013, in accordance with his powers under section 81J of the Pension Acts as amended by the Social Welfare (Miscellaneous Provisions) Act 2004 which apply the relevant provisions of the Employment Equality Acts to occupational pension schemes, the Director then delegated these cases to Conor Stokes - 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 sought from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 6 November 2013. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.

1.3 The facts of this complaint are not in dispute and are as follows:

• The complainant is a retired Senior Lecturer who was employed by the first-named respondent from 1972 until his retirement on 31 December 2010.
• The complainant is a member of the College Pension Scheme.
• The complainant and his partner have been living together in a committed same sex relationship for over thirty years
• The complainant and his partner entered into a Civil Partnership in the UK on 21 April 2009
• On 22 April 2009, the complainant wrote to the first-named respondent seeking to alter his status from ‘single’ to ‘married’.
• The first-named respondent replied to the complainant indicating that it was not in a position to accede to his request until such time as Civil Partnerships were recognised under Irish law
• The respondents operate a pension scheme which includes a rule whereby in the event of death, the spouse of the member is entitled to 2/3rds of the pension, provided the marriage took place prior to the members 60th birthday
• The pension scheme provides different rules for members who marry after their 60th birthday under Rule 24
• Rule 24 provides that where a member predeceases their spouse within 5 years of retirement, then an amount equal to the installments of the pension which would have been payable to the member during the period from his death to the fifth anniversary of the normal pension date shall then be payable to his spouse, dependents (as defined under the scheme rules) and/or his personal representatives provided he has made a will or is survived by his next of kin.
• Following the coming into force of the Civil Partnership Act on 1 January 2011, the pension scheme, including the aforementioned rule 24, was amended to include Civil Partners, as defined by that Act, in an identical manner to spouses
• The complainant was informed that as his civil partnership took place after his 60th birthday, his partner may be entitled to any benefit provided for by rule 24
• The pension scheme closed to new entrants on 31 January 2005

2. SUMMARY OF THE COMPLAINANT'S CASE

2.1 The complainant submitted that he is relying on Articles 20 and 21 of the European Charter of Fundamental Rights:

Article 20 provides that ‘Everyone is equal before the law.’

Article 21 provides that any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.

2.2 The complainant submitted that the legal status of the Charter under Article 6(1) of the TEEU (the main European Union Treaty) was expressly referred to by the Court of Justice in Kucukdeveci v Swedex GmbH[1], in support of the existence of a principle of non-discrimination on grounds of age as a general principle of European law. The national legislation at issue in that case distinguished between workers on grounds of age in calculating notice entitlement which was found by the Court of Justice to come within the provisions of the Framework Directive 2000/78 as covering conditions of dismissal. The Court found that where a directive gives expression to a general principle of EU law, a national court must dis-apply a national provision falling within the scope of EU law which it considers to be incompatible with that principle and which cannot be interpreted in conformity with that principle, even in a horizontal dispute between two individuals.

2.3 The complainant continued that even more recently, a strong approach was taken by the Court of Justice in declaring the actual contents of a Directive to be incompatible with Articles 21 and 23 of the Charter which guarantees the principle of equal treatment of women and men. In the case of Association Belge des Consommateurs Test-Achats ASBL and others v Conseil des Ministres[2] Article 5(2) of the Access to Goods and Services Directive, which allowed for a derogation from the principle of equal treatment by reference to actuarial tables, it was found to be incompatible with provisions of the Charter because it had the capacity to continue indefinitely. Therefore the Article was declared to be invalid upon the expiry of an appropriate transitional period

2.4 The complainant submitted that the Court’s decision followed on from the Opinion of the Advocate General which found that the provisions of European law, i.e. the directive, was superseded by the higher ranking gender provisions of the Charter.

2.5 Furthermore, the complainant submitted that it also relies on the general principle of Community law prohibiting age discrimination. In Mangold V Helm[3] the ECJ stated that

‘the principle of non-discrimination on age [is] a general principle of Community law.’

It concluded that

“it is the responsibility of the national court to guarantee full effectiveness of the general principle of non-discrimination in respect of age, setting aside any provision of national law which may conflict with Community law, even where the period prescribed for transposition of that Directive has not yet expired.’’

2.6 The complainant submitted that Article 1 of Council Directive 2000/78/EC provides that the purpose of the Directive is to lay down a general framework for the combating of discrimination on the grounds of religion or belief, disability age or sexual orientation, with a view to putting into effect in the member states the principle of Equal Treatment. Article 2 provides that the principle of equal treatment means that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.

2.7 The case of Maruko V Versorgungsanstalt der deutschen Buhnen,[4] concerned a homosexual man in a registered same-sex partnership. After the death of his partner Mr Maruko’s application for a widower’s pension was rejected by his partner’s pension institution on the basis that only spouses were entitled to this benefit. The ECJ found that the widower’s pension could be classified as pay within the meaning of article 3(1) c of the Framework Directive and Article 141 EC. “It is clear from Article 3(1)(c) and (3) of Directive 2000/78 that the Directive applies to all persons, as regards both the public and private sectors, including public bodies, inter alia, in relation to conditions of pay and that it does not apply to payments of any kind made by state schemes or similar, including state social security or social protection schemes.”

2.8 The complainant submitted that the scope of Directive 2000/78 must be understood – in the light of those provisions read in conjunction with Recital 13 of the preamble to the Directive – as excluding social security or social protection schemes, the benefits of which are not equivalent to ‘pay’, within the meaning given to that term for the application of Article 141 EC, or to payments of any kind made by the State with the aim of providing access to employment or maintaining employment.

2.9 It must therefore be determined whether a survivor’s benefit granted under an occupational pension scheme such as that managed by the VddB can be treated as equivalent to ‘pay’ within the meaning of Article 141 EC. Article 141 EC provides that ‘pay’ means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer. As the Court has already ruled (see Case C‑109/91 Ten Oever [1993] ECR I‑4879, paragraph 8, and Case C‑7/93 Beune [1994] ECR I‑4471, paragraph 21), the fact that certain benefits are paid after the termination of the employment relationship does not prevent them from being ‘pay’ within the meaning of Article 141 EC.

2.10 The Court has thereby recognised that a survivor’s pension provided for under an occupational pension scheme, set up under a collective agreement, falls within the scope of Article 141 EC. The Court has stated that the fact that such a pension, by definition, is paid not to the worker but to his survivor, cannot affect that interpretation, since, such a pension being a benefit deriving from the survivor’s spouse’s membership of the scheme, the pension accrues to the survivor by reason of the employment relationship between the employer and the survivor’s spouse and is paid to the survivor by reason of the spouse’s employment (see Ten Oever, paragraphs 12 and 13; Coloroll Pension Trustees, paragraph 18; Case C‑147/95 Evrenopoulos [1997] ECR I‑2057, paragraph 22; and Case C‑379/99 Menauer [2001] ECR I‑7275, paragraph 18).

2.11 The complainant submitted that for the purposes of assessing whether a retirement pension – by reference to which, should the case arise, as in the present case, the survivor’s pension is calculated – falls within the scope of Article 141 EC, the Court has stated that, of the criteria for identifying a pension scheme which it has adopted on the basis of the situations brought before it, the one criterion which may prove decisive is whether the retirement pension is paid to the worker by reason of the employment relationship between him and his former employer, that is to say, the criterion of employment, based on the wording of that article (see, to that effect, Beune, paragraph 43; Evrenopoulos, paragraph 19; Case C‑366/99 Griesmar [2001] ECR I‑9383, paragraph 28; Case C‑351/00 Niemi [2002] ECR I‑7007, paragraphs 44 and 45; and Joined Cases C‑4/02 and C‑5/02 Schönheit and Becker [2003] ECR I‑12575, paragraph 56).’’

2.12 The complainant submitted that the ECJ then considered Recital 22 of the preamble to the directive which states that the ‘Directive is without prejudice to national law on marital status and the benefits dependent thereon. The complainant submitted that, admittedly, civil status and the benefits flowing therefrom are matters which fall within the competence of the Member States and Community law does not detract from that competence. However, it must be recalled that in the exercise of that competence the Member States must comply with Community law and, in particular, with the provisions relating to the principle of non-discrimination (see, by analogy, Case C‑372/04 Watts [2006] ECR I‑4325, paragraph 92, and Case C‑444/05 Stamatelaki [2007] ECR I‑3185, paragraph 23).

2.13 Since survivor’s benefit such as that at issue in the main proceedings has been identified as ‘pay’ within the meaning of Article 141 EC and falls within the scope of Directive 2000/78, for the reasons set out in paragraphs 49 to 57 of this judgment, Recital 22 of the preamble to Directive 2000/78 cannot affect the application of the Directive’

2.14 The complainant submitted that the ECJ then considered whether the rejection of Mr Maruko’s application violated the Directive’s provision on grounds of sexual orientation and found that denial of a pension to a same sex partner can constitute direct discrimination on grounds of sexual orientation ‘If the referring court decides that surviving spouses and surviving life partners are in a comparable situation so far as concerns that survivor’s benefit, legislation such as that at issue in the main proceedings must, as a consequence, be considered to constitute direct discrimination on grounds of sexual orientation, within the meaning of Articles 1 and 2(2)(a) of Directive 2000/78’..

2.15 The complainant submitted that the ECJ also considered the question of direct discrimination in relation to the access of same sex couples to the employment benefits of married couples in the recent case of Romer v City of Hamburg.[5] The City of Hamburg paid Mr Rohmer a lower pension than it paid its pensioners with a married partner. His retirement pension was lower simply on the basis that he had a same sex registered partner and not a married partner. The ECJ stated ‘According to Article 2(2)(a) of Directive 2000/78, direct discrimination is to be taken to occur where one person is treated less favourably than another person who is in a comparable situation, on any of the grounds referred to in Article 1 of the Directive.’

41 Accordingly, the existence of direct discrimination, within the meaning of the Directive, presupposes, first, that the situations being weighed up are comparable.

42 In that regard, it should be pointed out that, as is apparent from the judgment in Maruko (paragraphs 67 to 73), first, it is required not that the situations be identical, but only that they be comparable and, second, the assessment of that comparability must be carried out not in a global and abstract manner, but in a specific and concrete manner in the light of the benefit concerned. In that judgment, concerning the refusal to grant a survivor’s pension to the life partner of a deceased member of an occupational pension scheme, the Court did not carry out an overall comparison between marriage and registered life partnership under German law, but, on the basis of the analysis of German law carried out by the court which made the reference for a preliminary ruling, according to which there was a gradual harmonisation in German law of the regime put in place for registered life partnerships with that applicable to marriage, it made it clear that registered life partnership is to be treated as equivalent to marriage as regards the widow’s or widower’s pension.

43 Thus, the comparison of the situations must be based on an analysis focusing on the rights and obligations of the spouses and registered life partners as they result from the applicable domestic provisions, which are relevant taking account of the purpose and the conditions for granting the benefit at issue in the main proceedings, and must not consist in examining whether national law generally and comprehensively treats registered life partnership as legally equivalent to marriage.

44 In that regard, it is apparent from the information in the order for reference that, from 2001, the year when the LPartG entered into force, the Federal Republic of Germany adapted its legal system to allow persons of the same sex to live in a union of mutual support and assistance which is formally constituted for life. Having chosen not to permit those persons to enter into marriage, which remains reserved solely to persons of different gender, that Member State created for persons of the same gender a separate regime, the registered life partnership, the regime of which has been gradually made equivalent to that of marriage.’

2.16 The complainant submitted that the ECJ ruled as follows:

‘1. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation is to be interpreted as meaning that supplementary retirement pensions such as those paid to former employees of the Freie und Hansestadt Hamburg and their survivors on the basis of the Law of the Land of Hamburg on supplementary retirement and survivors’ pensions for employees of the Freie und Hansestadt Hamburg (Erstes Ruhegeldgesetz der Freien und Hansestadt Hamburg), as amended on 30 May 1995, which constitute pay within the meaning of Article 157 TFEU, do not fall outside the material scope of the Directive either on account of Article 3(3) thereof or on account of recital 22 in the preamble thereto.

2. Article 1 in conjunction with Articles 2 and 3(1)(c) of Directive 2000/78 preclude a provision of national law such as Paragraph 10(6) of that Law of the Land of Hamburg, under which a pensioner who has entered into a registered life partnership receives a supplementary retirement pension lower than that granted to a married, not permanently separated, pensioner, if

– in the Member State concerned, marriage is reserved to persons of different gender and exists alongside a registered life partnership such as that provided for by the Law on registered life partnerships (Gesetz über die Eingetragene Lebenspartnerschaft) of 16 February 2001, which is reserved to persons of the same gender, and

– there is direct discrimination on the ground of sexual orientation because, under national law, that life partner is in a legal and factual situation comparable to that of a married person as regards that pension. It is for the referring court to assess the comparability, focusing on the respective rights and obligations of spouses and persons in a registered life partnership, as governed within the corresponding institutions, which are relevant taking account of the purpose of and the conditions for the grant of the benefit in question.’

2.17 The complainant also submitted that Advocate General Niilo Jaaskinen in his opinion in addition held that such an exclusion from marriage benefits for same-sex couples constitutes indirect discrimination if a member state created a registration scheme for same-sex couples inferior to civil marriage or if a member state grants no registration at all.

2.18 The complainant submitted that the Social Welfare Miscellaneous Provisions Act 2004 and the Equality Act 2004 were introduced to give effect to the Framework EU Directive. Given that the benefit in question constitutes ‘pay’, the provisions of the Pensions Acts 1990-2009 and the Employment Equality Acts 1998-2009 are relevant. The provisions have to be analysed and construed in the light of the Framework Directive. Both Acts prohibit discrimination, both indirect and direct on a number of discriminatory grounds including, sexual orientation, marital status now civil status and age in the matters that come within their remit. Section 69 of the Social Welfare (Miscellaneous Provisions Act 2004 provides that every scheme shall comply with the principle of equal pension treatment. Section 29 of the Employment Equality Acts 1998-2011 provides for an entitlement to equal remuneration.

2.19 The complainant submitted that the Pensions Acts 1990-2009 and the Employment Equality Acts 1998 -2011 contain a number of similar exemptions in relation to age, family and marital status, in section 72 of the Social Welfare (Miscellaneous Provisions) Act 2004 and section 34 of the Employment Equality Acts. Section 72(3) of the Social Welfare Pensions Act provides that it shall not constitute a breach of the principle of equal pension treatment on the marital 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. Section 34 (1)c of the Employment Equality Act 1998-2011 provides that it shall not be unlawful for an employer to provide a benefit to an employee on, or by reference to an event occasioning a change in the marital status of the employee.

2.20 The complainant added that Section 72(1) (a) to (e) of the Social Welfare Act 2004 allows for the use of age or qualifying service in relation to criteria for admission to a scheme, or entitlement to benefit or accrual of rights but only ‘where, in the context of the relevant employment, to do so is appropriate and necessary by reference to a legitimate objective of the employer, including legitimate employment policy, labour market and vocational training objectives.’

2.21 The complainant submitted that Section 34(c) of the Employment Equality Acts 1998 -2011 inter alia allows for the fixing of ages in relation to admission to an occupational benefits scheme or entitlements under it or to fix different ages for all employees or a category of it. This section has recently been considered in the case of Kelly and Masterson V Chivers Ireland[6]. The Equality Officer interpreted section 34 in the light of the provisions of the Framework Directive and found that the employer must have a legitimate aim for giving severance pay to those under 60 and those over 60. And this aim must be capable of being objectively and reasonably justified. The means of achieving that aim must also be appropriate and necessary.

2.22 The complainant submitted that applying the judgments of the ECJ in Maruko and Romer to the respondent’s College Pension scheme it is clear firstly that the pension entitlement at issue constitutes pay within the meaning of Article 141 EC and the Framework Employment Directive. Secondly, the denial of pension entitlement in respect of Mr Parris’ same sex partner constitutes direct discrimination on grounds of sexual orientation and civil status which cannot be justified. The complainant had entered into a UK Civil Partnership on the 21st of April 2009. The rights and obligations provided by a UK Civil Partnership are akin to Civil Marriage. The rights and obligation under a UK Civil partnership are more similar to marriage than those provided under a Civil Partnership contracted in Ireland. The Complainant therefore is in a legal and factual situation comparable to that of a married person.

2.23 The complainant submitted that the more favourable benefits allowed for pursuant to Section 72 (3) of the Social Welfare Act 2004 or section 34(1) c of the Employment Equality Acts 1998-2011 cannot extend to the concept of ‘pay’ within the meaning of Article 141 and the Framework Directive. Sections 72(3) of the Social Welfare Act 2004 and section 34(1) c of the Employment Equality Acts 1998-2011 cannot therefore be relied upon in this instance to justify the direct discrimination.

2.24 The complainant submitted that in relation to the determination of the HEA that ‘The claimant retired before legal recognition was given by the state to his civil partnership’ it is submitted that it is irrelevant to the issue of discrimination that the section 5 of the Civil Partnerships and Certain Rights and Obligations of Cohabitants Act 2010 was only given effect to on the 23rd of December 2010 by virtue of SI 649/2010. If the Complainant had contracted a marriage in the UK on the 21st of April 2009, this would have been recognised for the purposes of the Trinity College Pension Scheme. Therefore the failure to recognise the complainant’s UK Civil partnership constitutes direct discrimination on the marital/civil status ground. In any event, it is clear from the provisions of SI that the S.I. does not limit recognition of a UK partnership to civil partnership entered into before the coming into effect of the S.I.

2.25 The complainant submitted that without prejudice to the above, the denial of a pension in respect of the Complainant’s Civil Partner either on the grounds that he had retired before legal recognition was given by the State to his Civil Partnership or at all constitutes indirect discrimination on grounds of sexual orientation which cannot be objectively justified by a legitimate aim. No legitimate aim has been identified in this regard.

2.26 The complainant submitted that the second-named respondent in its determination placed particular emphasis on the provision in the scheme that ‘’the College’s rules preclude the payment of a survivor’s benefit where the member married after the age of 60. This rule applies to all members and marriages and civil partnerships.’’ In this regard it is submitted that the application of this rule to the Complainant’s circumstances constitutes direct discrimination on the marital status/civil status ground and indirect discrimination on grounds of sexual orientation. The Complainant could not have contracted a marriage with a same sex partner. Such a rule puts homosexual people at a particular disadvantage given that the option of Civil Partnership for same sex couples has only been so recently introduced.

2.27 The complainant submitted that the case-law requires that any discriminatory rule correspond to a legitimate aim or objective, and that the means chosen for achieving that objective serve a real need, were appropriate with a view to achieving the objective in question, and necessary to that end. This is a three stage, cumulative test and it is clear that it is not enough to assert an aim which is legitimate but it must be established that there is a real need to pursue this aim, that the means chosen to achieve the aim are proportionate and necessary and are successful in achieving the aim pursued. Inherent in determining whether the aim is “legitimate” for the purpose of justifying indirect discrimination, however, is a consideration of that aim within the context of the competing policy objectives in the area in question.

2.28 The complainant submitted that to permit a criterion which puts a group at a particular disadvantage to be maintained is a derogation from the principle of equal treatment. According to settled case-law, in determining the scope of any derogation from an individual right such as that of equal treatment, due regard must be had to the principle of proportionality, which requires that derogations must remain within the limits of what is appropriate and necessary in order to achieve the aim in view and that the principle of equal treatment be reconciled as far as possible with the requirements of the aim thus pursued (Lommers [2002] ECR 1-2891).

2.29 The complainant submitted that it is now well established in English and European jurisprudence (see Kutz-Bauer v Freie und Hansestadt Hamburg, March, 2003)(Case C-187/00) that provisions which result in discrimination against a protected category are unlawful unless the difference of treatment found to exist can be justified by objective factors unrelated to the discriminatory ground (see, in that regard, Case 171/88 Rinner-Kühn [1989] ECR 2743, paragraph 12; Case C-457/93 Lewark [1996] ECR I-243, paragraph 31; Case C-243/95 Hill and Stapleton [1998] ECR I-3739, paragraph 34; and Case C-226/98 Jørgensen [2000] ECR I-2447, paragraph 29). It is necessary in that regard to ascertain, in the light of all the relevant factors and taking into account the possibility of achieving by other means the aims pursued by the provisions in question, whether such aims appear to be unrelated to any discrimination based on the protected grounds and whether those provisions, as a means to the achievement of certain aims, are capable of advancing those aims (see, in that regard, Case C-167/97 Seymour-Smith and Perez [1999] ECR I-623, paragraph 72) taking due account the possibility of achieving the aim by other means.

2.30 The complainant submitted that it follows that mere generalisations are not enough to show that the aim of the disputed provisions is unrelated to any discrimination based on a protected ground or to provide evidence on the basis of which it could be considered that the means chosen are or could be necessary or appropriate for achieving that aim. No objective justification for this measure has been adduced. Paragraph 4.2 of the determination of the second-named respondent notes that the superannuation benefits for spouse in the College are better than what is provided under the public service model scheme which applies to new entrants to College. Such a rationale does not constitute an objective justification for indirect discrimination on the sexual orientation ground. It is denied that this constitutes a legitimate aim. Even if it is held to constitute a legitimate aim, the means of achieving that aim are neither appropriate nor necessary in this regard.

2.31 The complainant submitted that financial concerns cannot satisfy objective justification as per Dunne J. in Catholic University School v Colm Dooley and Aoife Scannell [2010] IEHC 496.

2.32 The complainant also submitted that the application of the rule which precludes the payment of a survivor’s benefit where the member married or entered a civil partnership after the age of 60 to the Complainant’s circumstances constitutes direct discrimination on grounds of age. While the Pensions Acts 1990-2009 and the Employment Equality Acts contain exemptions in relation to age, none of the exemptions allow for the fixing of age in relation to either marriage or civil partnership.

2.33 The complainant submitted that without prejudice to that contention, it is further submitted that such a rule is not appropriate or necessary by reference ‘to a legitimate objective of the employer , including legitimate employment policy, labour market and vocational training objectives’. The caselaw of the ECJ in relation to the justification of age discrimination will relied on by the complainant in this regard, including Mangold v Helm (C-144/04) and Kucukdeveci v Swedex Gmbh &Co. KG – Case -555/07

3. SUMMARY OF THE RESPONDENT’S CASE

3.1 The respondents submitted that the equality provisions in the Pensions Act derive from EU Directive 2000/78/EC and though the “age 60 rule” is the reason that the complainant’s partner would not qualify for the benefit, it should be noted that the Directive states that ‘the Directive is without prejudice to national laws on marital status and the benefits dependent thereof.’

3.2 The respondent submitted that the provisions of the Civil Partnership and Certain Rights and Obligations Act, 2010 override the pension scheme rules insofar as a Civil Partner, as defined in the Act, must be treated the same way as a Spouse and the respondent accepts this. The respondent further submitted that these provisions do not, however, override the age 60 rule. The Pensions Act 1990 (as amended) provides that it shall not constitute discrimination on the age ground for a pension to fix age or length of service (or a combination of both) as conditions or criteria for entitlement to benefits or accrual of benefits in a defined benefit scheme. Pensions legislation also provides that criteria as to the age may also be used in actuarial calculations and provides that the fixing of different ages for retirement or entitlement to benefits does not infringe the principal of equal pension treatment subject to there being no breach on the gender ground.

3.3 The respondent submitted that the age 60 rule was reviewed by the Scheme Trustees in 2007 who determined not to change the rule on the basis that it was deemed to comply with the legislation prevailing at the time.

3.4 The respondent submitted that the complainant contended that his civil partnership which was conducted under UK legislation should have been recognized in Irish law by virtue of the 19th Amendment to the Irish Constitution. The respondent contended that were this to be the case it would not have been necessary to include specific reference to UK Civil Partnerships in the Minister’s order, Statutory Instrument 649 of 2010.

3.5 The respondent submitted that if operations fully with the rules of its Scheme as set out in statute governed by various deeds and rules. While the complainant retired from the first-named respondent’s employment on 31 December 2010 before legal recognition was given by the State to his civil partnership, it was the age 60 rule which limited his partner’s eligibility for potential pension benefits, in the same way as it would have affected a Spouse.

3.6 The respondent submitted that given the fundamental change introduced from the relevant dates by the Civil Partnership Act, the complainant’s partner may potentially benefit in accordance with the provisions of special rule 24 were the complainant to predecease him within 5 years of his retirement. Rule 24 provides for an amount equal to the installments of his pension which would have been payable to him during the period of his death to the fifth anniversary of his normal pension date and shall be payable to his dependents (as defined under the scheme rules) and/or his personal representatives provided he has made a will or is survived by his next of kin.

3.7 The respondent submitted that the crucial and central age 60 rule applies equally to all scheme members. The complainant’s civil partnership took place in 21 April 2009 when the complainant was aged 63.

3.8 The respondent submitted that in the context of the complainant’s appeal to the second-named respondent, that case was examined in detail. The subsequent determination was that the first-named respondent fully complied with the non-discretionary rules of the pension scheme in its treatment of the complainant. The respondent also submitted that it is important to note that this determination was issued with the consent of the Minister for Education and Skills and the Minister for Public Expenditure and Reform.

3.9 The respondent submitted that the issue of a survivor’s pension would not arise unless the complainant predeceased his civil partner and in this regard the complainant is anticipating discriminatory treatment.

3.10 The respondent submitted that on the basis of the foregoing, the complainant against the respondents should not be upheld.

4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER

4.1 The issue for decision by me is whether or not the respondent(s) subjected the complainant to discriminatory treatment on grounds of age, sexual orientation and civil status, in the operation of the rules of the occupational pension scheme in terms of Section 66(2) of the Acts, and contrary to Sections 70 & 78 of those Acts.

4.2 Section 76 of the Acts sets out the burden of proof which applies to claims of discrimination in relation to pensions. It requires the complainant to establish, in the first instance, facts from which it may reasonably be inferred that there has been a breach of the principle of equal pension treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference raised.

4.3 For clarification purposes, and to address an issue that arose in the oral hearing, at no time did the complainant’s partner seek to access the scheme and accordingly he is not the complainant in the instant proceedings. Therefore this case does not turn on the issue of access to a pension scheme for the complainant’s partner; rather it turns on the issue of the complainant’s entitlement to a possible benefit payable to that partner and his denial to that entitlement on the grounds of age, sexual orientation and civil status.

The Civil Status Ground

4.4 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation introduced the concept of discrimination on the age and sexual orientation grounds into Irish law in relation to employment and occupation (including in relation to Pension entitlements). This Directive was given effect in the 2004 amendment of the 1990 Pensions Acts.

4.5 In the preamble to the Directive, it is noted at point 22 that the Directive is without prejudice to national laws on marital status and the benefits dependent thereon.

4.6 Section 72 of the Acts contains the following provisions:

(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.

4.7 The complainant referred to the CJEU case of Maruko V Versorgungsanstalt der deutschen Buhnen,[7] as useful guidance in this case. In that case the Court’s reasoning is instructive:

65 In accordance with Article 1 thereof, the purpose of Directive 2000/78 is to combat, as regards employment and occupation, certain forms of discrimination including that on grounds of sexual orientation, with a view to putting into effect in the Member States the principle of equal treatment.

66 Under Article 2 of Directive 2000/78, the ‘principle of equal treatment’ means that there is to be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1 of the Directive. According to Article 2(2)(a) of Directive 2000/78, direct discrimination occurs where one person is treated less favourably than another person who is in a comparable situation, on any of the grounds referred to in Article 1 of the Directive. Article 2(2)(b)(i) states that indirect discrimination occurs where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

67 It is clear from the information provided in the order of reference that, from 2001 – the year when the LPartG, in its initial version, entered into force – the Federal Republic of Germany altered its legal system to allow persons of the same sex to live in a union of mutual support and assistance which is formally constituted for life. Having chosen not to permit those persons to enter into marriage, which remains reserved solely to persons of different sex, that Member State created for persons of the same sex a separate regime, the life partnership, the conditions of which have been gradually made equivalent to those applicable to marriage.

68 The referring court observes that the Law of 15 December 2004 contributed to the gradual harmonisation of the regime put in place for the life partnership with that applicable to marriage. By that law, the German legislature introduced amendments to Book VI of the Social Security Code – statutory old age pension scheme, by adding inter alia a fourth paragraph to Paragraph 46 of that Book, from which it is clear that life partnership is to be treated as equivalent to marriage as regards the widow’s or widower’s pension referred to in that provision. Analogous amendments were made to other provisions of Book VI.

69 The referring court considers that, in view of the harmonisation between marriage and life partnership, which it regards as a gradual movement towards recognising equivalence, as a consequence of the rules introduced by the LPartG and, in particular, of the amendments made by the Law of 15 December 2004, a life partnership, while not identical to marriage, places persons of the same sex in a situation comparable to that of spouses so far as concerns the survivor’s benefit at issue in the main proceedings.

70 However, the referring court finds that entitlement to that survivor’s benefit is restricted, under the provisions of the VddB Regulations, to surviving spouses and is denied to surviving life partners.

71 That being the case, those life partners are treated less favourably than surviving spouses as regards entitlement to that survivor’s benefit.

72 If the referring court decides that surviving spouses and surviving life partners are in a comparable situation so far as concerns that survivor’s benefit, legislation such as that at issue in the main proceedings must, as a consequence, be considered to constitute direct discrimination on grounds of sexual orientation, within the meaning of Articles 1 and 2(2)(a) of Directive 2000/78.

73 It follows from the foregoing that the answer to the third question must be that the combined provisions of Articles 1 and 2 of Directive 2000/78 preclude legislation such as that at issue in the main proceedings under which, after the death of his life partner, the surviving partner does not receive a survivor’s benefit equivalent to that granted to a surviving spouse, even though, under national law, life partnership places persons of the same sex in a situation comparable to that of spouses so far as concerns that survivor’s benefit. It is for the referring court to determine whether a surviving life partner is in a situation comparable to that of a spouse who is entitled to the survivor’s benefit provided for under the occupational pension scheme managed by the VddB.

4.8 From their deliberations in the Maruko case above, I note that the CJEU’s consideration of marriage reiterated the preserve of the Member State alone to consider what may constitute marriage. Additionally, I note the CJEU’s consideration of the harmonisation of rules relating to spouses and life partners dates back to Germany’s introduction of their version of Civil Partnership, and the Court did not seek to give retrospective effect to any such harmonisation prior to date of the introduction of the LPartG (Germany’s civil partnership law). In the instant case, upon the introduction of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (the Civil Partnership Act), the scheme was amended to enable persons in a civil partnership to access the same benefits that were previously only available to spouses of members. Therefore, although I am satisfied that the complainant has established that he was treated differently on the civil status ground before his partnership was recognised by the State, I am not satisfied that any such treatment is encompassed by the definition of discrimination under both the Pensions Acts and the Directive. Accordingly, this element of the complaint must fail.

The Sexual Orientation Ground

4.9 Having considered the evidence presented by both parties in relation to the sexual orientation ground, the evidence in relation to this ground relates to a person’s entitlement to recognition of their civil partnership rather than any restriction or denial of an entitlement based on a person’s sexual orientation per se. As both the directive and the Acts make a clear distinction between the sexual orientation ground and the civil status ground, I consider that consideration of this matter has been dealt with in the previous paragraph.

The Age Ground

4.10 The complainant stated that the respondent treated him differently to other members in that his entitlements differed when compared to persons who married or established civil partnerships prior to their 60th birthday. The respondent acknowledged that this was the case and outlined that there was a difference in treatment for persons who married or established a civil partnership before 60 and those who married or established a civil partnership after that age.

4.11 The respondent stated that it is neither discriminatory nor unlawful to fix an age to qualify for an entitlement under the Pensions Acts. The respondent referred to Section 72(1)(c) of the Pensions Acts. Section 72(1)(c) states that “It shall not constitute a breach of the principle of equal pension treatment on the age ground for a scheme to … fix age or qualifying service, or a combination of both for entitlement to benefits under the scheme.”

4.12 The respondent stated that Section 72(1)(c) of the Acts is not qualified by reliance upon justification for its operation and provides a full defence for the respondent in this case. The respondent then cited the Tribunal’s earlier decision in the case of Charleton v Bus Eireann (DEC-P2011-004) to support this contention.

4.13 The Equality Officer in Charlton v Bus Eireann concluded as follows:

“4.1 The matter I have to consider is whether the complainant was discriminated against on the age ground in relation to access to the 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—………………..

(f) that, subject to subsection (3), they are of different ages (in this Part referred to as ‘age 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 It is common case that the complainant was not allowed to join the pension scheme because he was over the age of 50 when he was recruited by the respondent and the rules of the scheme provide that an applicant to the pension scheme has to be at least 20 years old and under the age of 50 on application. The complainant submits that this rule contained in the respondent’s pension scheme is discriminatory on the age ground and the respondent has not given an objective reason for having such an age restriction in the pension scheme. It was submitted on his behalf that any discrimination as regards age must serve a legitimate aim or purpose and it is for the employer to prove that placing a cap on the entry age to the pension scheme is objectively and reasonably justified. The funding and financial implications cited by the respondent are not objective reasons for denying access to a pension as it has been held in cases that discrimination cannot be justified solely on the grounds of increased costs. In considering this point the complainant’s representative said that the respondent has provided no reason for the discriminatory treatment and referred me to the reasoning in the Equality Officer in the case of Five Named Complainants and Hospira Ltd., DEC-E/2010/083.

4.3 The respondent submitted that Section 72 of the Acts permits the employer to set an age limit for entry to the scheme. In addressing the matter of objective justification, the respondent submitted that the rules and the eligibility requirements as regards the age of entry to the scheme are contained in SI No. 242 of 1945 and any changes to the pension scheme would have to be agreed by CIE the Trade Unions and the Minister for Transport, Tourism and Sport. Any increase to the upper age limit for entry to the scheme would have serious funding implications given that the same pension is paid to retiring staff irrespective of service and the contribution made to the scheme. The respondent submitted that it was satisfied that in the circumstances an upper age limit for entry to the scheme is both appropriate and necessary and is in accordance with the exemptions set out in section 72 of the Acts.

4.4 I am satisfied that in accordance with section 76 of the Act that the complainant has established that he was treated less favourably than a person who was recruited between the ages of 20 and 49 was treated in similar circumstances in that he was not admitted to the pension scheme because of his age. I find therefore that the complainant has established a prima facie case of discriminatory treatment on the age ground. Accordingly the burden of proof has shifted to the respondent.

4.5 Section 72 provides:

“(1) It shall not constitute a breach of the principle of equal pension treatment on the age ground for a scheme to—

(a) fix age or qualifying service, or a combination of both, as a condition or criterion for admission to the scheme,

(b) fix different ages or qualifying service, or a combination of both, as conditions or criteria for admission to the scheme for employees or groups or categories of employees,

(c) fix age or qualifying service, or a combination of both, as a condition or criterion for entitlement to benefits under the scheme,

(d) fix different ages or qualifying service, or a combination of both, as conditions or criteria for entitlement to benefits under the scheme for employees or groups or categories of employees,

(e) (i) fix age or qualifying service, or a combination of both, as a condition or criterion in relation to the accrual of rights under a defined benefit scheme or in relation to the level of contributions to a defined contribution scheme, or

(ii) fix different ages or qualifying service, or a combination of both, as conditions or criteria in relation to the accrual of rights under a defined benefit scheme or in relation to the level of contributions to a defined contribution scheme for employees or groups or categories of employees,

where, in the context of the relevant employment, to do so is appropriate and necessary by reference to a legitimate objective of the employer, including legitimate employment policy, labour market and vocational training objectives,

(f) use criteria as to age in actuarial calculations:”

4.6 It is my view that subsection (a) and (b) cited above is a full defence for the respondent in that an employer is allowed to fix age as a condition of entry to the company pension scheme. The next matter is whether the respondent is required to objectively justify this rule in the pension scheme in accordance with the paragraph which follows subsection (e) cited above. It is my view that this paragraph which follows subsection (e) only applies to this subsection and that the respondent is only required to objectively justify a discriminatory rule in the pension scheme if the rule relates to the accrual of rights. In applying the canons of statutory interpretation it is clear to me that the said paragraph which follows subsection (e) does not apply to subsections (a) to (d) or to subsection (f) of Section 72 (1), provided it does not result in gender discrimination. In considering this matter I have referred to Article 6 of the Council Directive Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. The Pension Act 1990 was amended by the provisions of the Social Welfare (Miscellaneous Provisions) Act 2004 which is the relevant legislation transposing the terms of the Council Directive into Irish legislation. Article 6 of the Directive provides:

“1. Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.

Such differences of treatment may include, among others:

(a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;

(b) the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment;

(c) the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.

2. Notwithstanding Article 2(2), Member States may provide that the fixing for occupational social security schemes of ages for admission or entitlement to retirement or invalidity benefits, including the fixing under those schemes of different ages for employees or groups or categories of employees, and the use, in the context of such schemes, of age criteria in actuarial calculations, does not constitute discrimination on the grounds of age, provided this does not result in discrimination on the grounds of sex.”.

The test set out above at the beginning of Article 6 which allows discrimination in certain circumstances provided it can be objectively justified applies to Article 6 (1)(a) (b) and (c) above. I note that Article 6 (2) above which only applies to pension schemes has no such saver. It is a separate subsection of the Article to subsection 1 and there is no indication from the wording that there is any link to the objective justification test in Article 6(1). Subsection 2 of Article 6 of the Council Directive states that it is not discriminatory to fix age as a criterion for admission to an occupational pension scheme. It is clear from the subsection that a Member State has complete discretion in fixing the ages of admission to a pension scheme and it does not constitute discrimination on the age ground provided it is not discriminatory on the gender ground. As both Article 6(2) of the Directive and section 72(1) of the Pension Acts are clear and unambiguous, I am satisfied the rules of the respondent’s pension scheme which sets out an age limit for admission to the scheme is not discriminatory on the age ground. I find therefore that Section 72 (1)(a) and (b) of the Pensions Acts is a full defence for the respondent in relation to the prima facie case raised by the complainant.“

4.14 Having considered the reasoning in Charlton, I am satisfied although the complainant has established that he was less favourably treated on the age ground, the respondent is entitled to rely on the defence contained in Section 72(1)(c). Therefore, this element of the complaint must fail

The Combined Grounds of Civil Status, Sexual Orientation and Age

4.15 It was submitted during the oral hearing that the combination of the grounds of civil status, sexual orientation and age is such that it renders the respondent’s treatment of the complainant as amounting to indirect discrimination. Indirect discrimination occurs where an apparently neutral provision, criterion or practice would put persons having a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. Having considered the treatment of the complainant under the combined grounds cited, I am satisfied that the complainant has established that the impact of the introduction of civil partnership only in 2011, combined with the limit placed upon his ability to regularise his civil status as a homosexual in an on-going relationship prior to that point, when further combined with the difference in treatment based on age carried out in relation to this pension scheme renders the complainant at a particular disadvantage in relation to, for example, a heterosexual man of a similar age who would have had the opportunity to regularise a heterosexual relationship at a younger age. However, the Civil Partnership Act does not have retrospective effect and I believe that any direction or redress that I am empowered to consider would have the ultimate impact of conveying retrospective effect on the Civil Partnership Act. As the legislature did not see its way to conveying such an effect upon that Act, and as the preamble to the Directive preserves the right of the State to legislate on marriage, and furthermore I note that Article 21 of the European Charter of Fundamental Rights while prohibiting discrimination on a number of grounds, excludes mention of discrimination on the marital status ground, I believe that I would be acting ultra vires in making any decision which would effectively convey such retrospective effect upon Civil Partnership. Accordingly, I cannot find in favour of the complainant on the basis of either the national or European legislation as it currently stands and this complaint must fail.

5. DECISION

5.1 Having considered all the written and oral evidence presented to me, I find that the complainant has not established a breach of the principle of equal pension treatment on the grounds of marital/civil status and this element of the complaint must fail.

5.2 Having considered all the written and oral evidence presented to me, I find that the complainant has not established a breach of the principle of equal pension treatment on the grounds of sexual orientation and this element of the complaint must fail.

5.3 Having considered all the written and oral evidence presented to me, I find that the complainant has established a breach of the principle of equal pension treatment on the grounds of age. However, the respondent is entitled to rely on the defence contained in Section 72(1)(c) of the Acts and therefore this element of the complaint must fail.

5.4 Having considered all the written and oral evidence presented to me, I consider that the complainant has demonstrated that he is at a particular disadvantage on the combined grounds of civil status, sexual orientation and age, however, I consider that I am precluded from deciding any further on this matter, as to do so would convey retrospective effect upon the Civil Partnership Act.

Conor Stokes

Equality Officer

16 December 2013

Footnotes:

[1] Case C-555/07 [2010] IRLR 346 at paragraph 22 of the judgment.

[2] Case C-236/09

[3] Case -144/04

[4] C-267/06

[5] C-147-08

[6] Dec-E2011 177

[7] C-267/06