THE EQUALITY TRIBUNAL
PENSION ACTS 1990-2011
Decision DEC – P2015 – 001
PARTIES
Ms Anne Waldek
-v-
Inclusion Ireland
File Reference: PEN/2013/013
Date of Issue: 17th February 2015
Keywords: S. 65 of the Pension Acts 1990 to 2014 – definition of “occupational benefit” – payment to comparator was arrears of salary – remuneration within the meaning of the Employment Equality Acts 1998-2011 – no jurisdiction.
1. Claim
1.1. The case concerns a claim by Ms Anne Waldek that Inclusion Ireland discriminated against her on the ground of gender contrary to Section 66(2) of the Pensions Acts 1990 to 2013, in giving a male colleague a significantly more generous pension top-up payment on his cessation of employment than to her.
1.2. The complainant referred a complaint under the Pension Acts 1990 to 2013 to the Director of the Equality Tribunal on 27 March 2013. A submission was received from the complainant on 27 March 2014. A submission was received from the respondent on 14 May 2014. On 5 December 2014, in accordance with his powers under S. 75 of the Employment Equality Acts 1998-2011, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under S. 81 of the Pension Acts. On this date my investigation commenced. As part of my investigation, I proceeded to hold a joint hearing of the case on 6 February 2015.
2. Summary of the Complainant’s Written Submission
2.1. The complainant submits that a named male comparator, who was also in the employment of the respondent and was its former general secretary, received a €6000 top-up payment for his pension fund, which she says was minuted in the respondent’s board meeting minutes in 2002. She states that when she requested financial help from the respondent with her pension fund, she was refused. She submits that this constitutes discrimination on the ground of gender.
3. Summary of the Respondent’s Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. It submits that the male comparator in question did not receive any such pension top-up payment as the complainant alleges. It further states that when the complainant approached the CEO about a lump-sum payment, he refused, saying it was not the organisation’s practice, and he would not use scarce public funds in this manner.
4. Conclusions of the Equality Officer
4.1. The preliminary issue for decision in this case is whether the complainant was discriminated against with regard to an occupational benefit within the meaning of S. 65 of the Pension Acts 1990 to 2014.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 76 of the Acts. According to the wording of the section, it is up to the complainant to establish facts “from which it may be reasonably inferred that there has been a breach of the principle of equal pension treatment in relation to” her, before a prima facie case is established and the burden of proof shifts to the respondent.
4.3. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.4. At the hearing of the complaint, the complainant specified that her knowledge of the payment to her comparator stemmed from typing up the minutes of the relevant board meeting, as she was employed by the respondent as an administrator. The respondent then produced the relevant minutes in evidence and accepted that the payment of £6000 to Mr R. had occurred. The respondent specified that this payment occurred in June 2001 before the euro changeover and was therefore made in Irish punts. It was minuted at a board meeting in April 2002, when the organisation’s accounts for the year 2001 were discussed.
4.5. However, the respondent was able to prove from ledgers and email correspondence which were submitted in evidence, that the payment to Mr R. was in fact a back payment for salary and was at no time paid into Mr R.’s pension, either by the respondent or by himself. The complainant did not challenge this evidence.
4.6. S. 65 in Part VII of the Pension Acts 1990 to 2014, which is the definition section of this part of the Acts, defines “occupational benefits” as follows:
‘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.
4.7. From the evidence adduced by the respondent, I am satisfied that the payment to Mr R. was in fact remuneration within the meaning of the Employment Equality Acts and not an occupational benefit within the meaning of the Pension Acts. Accordingly, I find that the complainant’s complaint falls outside the remit of the Pension Acts 1990 to 2014, and that I have no jurisdiction to investigate the matter.
5. Decision
5.1. Based on all of the foregoing, and pursuant to S. 81H of the Pension Acts 1990 to 2014, I find that I have no jurisdiction to investigate this matter, because the payment complained of is not an occupational benefit within the meaning of the Acts.
______________________
Stephen Bonnlander
Equality Officer
17 February 2015