FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 77A(2)(A), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : ELECTRICITY SUPPLY BOARD (REPRESENTED BY ARTHUR COX SOLICITORS) - AND - MICHAEL MAC NAMARA, CARL O'SULLIVAN, PATRICK PHILPOTT, ANN MCCAFFERTY, JOHN NUGENT, TONY COLLINS, CHRISTY KEOGH & BRIAN GLOVER (REPRESENTED BY ESB RETIRED STAFF ASSOCIATION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. An appeal under Section 77A(2)(A) of the Employment Equality Acts, 1998 to 2011.
BACKGROUND:
2. The Workers appealed the Decision of the Equality Officer to the Labour Court on the 19th August 2014. A Labour Court hearing took place on the 15th January 2015. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Mr Michael Mac Namara plus 7 Named Complainants (hereafter referred to as “the Complainants”) against the decision of the Equality Tribunal in their claim of discrimination against the Electricity Supply Board (hereafter referred to as “the Respondent”)on grounds of age, in terms of section 66(2) of the Pensions Acts 1990-2012 (the Pensions Acts) and contrary to section 70 of those Acts. The Complainants claimed thatthey were discriminated against in having their pension benefit reduced in consequence of the imposition ofthepension levyby the Finance (No 2) Act 2011.
The Equality Officer noted that the Respondent rejected the Complainant’s assertion of discrimination and notwithstanding this submitted that the claims were frivolous, vexatious and misconceived pursuant to section 81E (as amended) of the Pensions Acts, 1990-2012. Therefore, the Equality Officer proceeded to deal with the case under s.77A of Employment Equality Acts 1998 – 2011 (the Equality Acts), as applied to s.81E of the Pensions Acts which provides as follows: -
- (1)The Director may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.
(2)(a) Not later than 42 days after the Director dismisses a claim under this section, the complainant may appeal against the decision to the Labour Court on notice to the Director specifying the grounds of the appeal. (b) On the appeal the Labour Court may affirm or quash the decision.
TheEquality Officer dismissed theclaims pursuant to that provision.In hisdecision theEqualityOfficer foundas follows:-
- "Thetimelimits prescribedatsection 81E ofthePensions Acts,1990-2012areclearand unambiguous andmust beapplied notwithstanding thefact that the pensionlevy cameintooperationafter they cameintoforce.Thesetime limits requireaclaim tobe referred tothe Tribunal, at themaximum,within twelve months of thedateof termination ofa complainant'semployment. In the caseof each of the eightAppellantsthismaximumtime limitwasnotcompliedwith.I thereforefindthat the Appellantshaveno prospect ofsucceedingin theirclaimsand I dismiss them asfrivolousandvexatiousin accordancewithsection77A of theEmployment Equality Acts1998to2012(as appliedto section 81E of the Pensions Acts,1990 to2012by section 81J ofthose Acts(as amendedby section66of the Equality Act, 2004)"
The Complainants appealed against that decision.
Background
The Complainants are retired employees of the Respondent in receipt of pension benefits from the ESB Defined Benefit Pension Scheme as a consequence of that employment. The Complainants stated that the Government introduced the pension levy as part of the Finance (No. 2) Act, 2011 and submitted that as a consequence of the manner in which this levy was applied to the Pension Scheme, they were discriminated against by the Respondent on grounds of age contrary to the Pensions Acts. The Respondent rejected this assertion and notwithstanding this submitted that the claims were frivolous, vexatious and misconceived pursuant to section 81E (as amended) of the Pensions Acts.
TheComplainants referred theircomplaint against their formeremployer,the Respondent,totheEqualityTribunalunder thePensions Actson 13thDecember 2012.[The Complainants separately lodged an almost identical complaint with the Equality Tribunal against the Trustees of the ESB Pension Scheme. The Equality Officer also dismissed that complaint pursuant to Section 77A (l) of the Acts. That Decision is also on appeal.]
A Court hearing was scheduled for 15thJanuary 2015 to hear the appeal. At the hearing the Complainants sought clarification on the Court’s proceedings as they were anxious that the Court would deal with their substantive case. The Court provided clarification on its remit under the Acts and following an adjournment request made by the Complainants, the Court granted the adjournment to allow the Complainants an opportunity to furnish a written submission to the Court on the clarified issue which was the subject of the appeal, namely whether the claims were referred under the Acts in time. By letter dated 22ndJanuary 2015, the Complainants wrote to the Court seeking clarification on the issues to be addressed.
The Court responded by letter dated 27thJanuary 2015, clarifying,inter alia, the precise nature of the Equality Officer’sDecision which was on appeal to the Court and furthermore that the appeals were under theEmploymentEqualityActs 1998–2011,asapplied to the Pensions Acts1990 – 2012and not under the Industrial Relations Acts. One of the issues on which the Complainants required clarification wasthe reasons why their substantive case could not be heard by the Court on the day of the hearing. The Court responded as follows:-
- The two appeals before the Court, ADE/14/34 and ADE/14/35 are appeals of the Equality Officer’s Decisions, the substantive issue was not heard by the Equality Officer as he concluded that there was norealistic prospect of success if referred to a full hearing, due to his finding that the claims were referred out of time, consequently the claims were statute barred. As was pointed out to you at the hearing on 15thJanuary 2015, in the event that the Court were to overturn the Equality Officer’s Decision, then the case will be remitted back to the Equality Tribunal for investigation of the substantiveissue. Otherwise the Court has no jurisdiction to hear the substantiveissue.
The Court received the Complainants’ additional submission on 26thFebruary 2015. This submission raised matters which were outside the remit of the Court in this appeal and did not address the specific matter for which the Court granted the adjournment requested by the Complainants.
Relevant Statutory Provisions
Section 81E of the Pensions Acts 1990 to 2012 provides that a claim must be taken within six months after the ending of the Complainant's employment. It is not denied that the Complainants each left their employment more than six months before the lodgement of the claim.
Section 81E(5) of the Act (inserted by Section 22 of the Social Welfare (Miscellaneous Provisions) Act 2004, provides:
- (5)Subject tosubsection(6),aclaim for redress in respect of a breach of the principleofequal pension treatment or victimisation may not be referred under this section after theend of theperiod of6monthsfrom thedate of termination of the relevant employment.
Subsection (6) of that section provides: -
- (6)On application bya complainant,the Director,the Labour Court or the Circuit Courtas thecasemay be, may,for reasonable cause,direct that,in relation to the complainant,subsection(5)shall have effect as if for thereference in itto a period of6months therewere substituted a reference tosuch period notexceeding12months as is specified in the direction,and where such a direction isgiven,thisPartshall have effect accordingly.
Secondly, Section69 of the Act,as amended,provides:-
- 69.-Subject to theprovisions of this Part,every schemeshall comply with the principleofequal pension treatment.
Section 69 of the Act iselaborated by Section 70,which provides: -
- 70.-(1) Subject to this Part,the principle of equal pension treatment is that there shall beno discrimination on anyof thediscriminatory grounds (including, subject to section 68(2), indirect discrimination ) in respect of any rule of a scheme.
Findings of the Court
The prescribed time limits require a claim to be referred to the Equality Tribunal within six months of the date of termination of a Complainant’s employment. Section 81E(5) is perfectly clear on this point. In the case of the eight Complainants, the date of termination of their employment ranged from 30thOctober 1996 to the most recent retirement which was dated 26thFebruary 2011, i.e. ranging from over 16 years to one year and almost 10 months prior to the date of referral of the claim. Even the application of s.81 E(6) of the Act, if applied for, could not bring the Complainants’ complaints inside the time limit. Therefore the time limit prescribed by Section 81E of the Pensions Acts 1990 to 2012 was not complied with, and any cause of action has since been extinguished by the statutory time limits and is now statute barred.
Determination
The Court concurs with the Equality Officer’s finding that the Complainants have no realistic prospect of succeeding in their claims if referred to a full hearing as the claims were submitted outside the prescribed time limits and the claims are therefore dismissed as misconceived in accordance with section 77A of the Employment Equality Acts, 1998-2011 ( as applied to section 81E of the Pensions Acts, 1990-2012 by section 81J of those Acts (as amended by section 66 of the Equality Act, 2004)).
Accordingly, the Complainants cannot succeed and their complaints herein must be dismissed, therefore the Court upholds the Equality Officer’s Decision and the appeal fails.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
13th April, 2015.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.