EMPLOYMENT EQUALITY ACTS
&
PENSIONS ACTS
DECISION NO. DEC-E2016-094 & DEC-P2016-002
PARTIES
Maureen Moroney
AND
Office of the Revenue Commissioners
(Represented by Shelley Horan BL instructed by Revenue Solicitor)
File reference: PEN/2014/06
Date of issue: 30 June 2016
HEADNOTES: Pension Acts – nationality - gender – age – time limits
1. DISPUTE
1.1. This dispute concerns a claim by Ms Maureen Moroney that the Office of the Revenue Commissioners discriminated against her on the ground of nationality, gender and age in their assessment of her pension entitlements.
1.2. The complainant referred her complaint to the Director of the Equality Tribunal on 31 July 2014. On 11 November 2015, in accordance with his powers under S. 75 of the Employment Equality Acts, the Director General of the Workplace Relations commission delegated the case to me, Hugh Lonsdale, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General. On this date my investigation commenced. As part of my investigation, I proceeded to hold a hearing of the case on 12 November 2015.
1.3. This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83.3 of the Workplace Relations Act 2015.
2. Summary of the Complainant’s Submission
2.1. The complainant submits that the respondent discriminated against her in their rules for the calculation of her lump sum entitlement under her state employers PRSA/AVC schemes; particularly in relation to service requirements.
2.2. In support of her claim on the grounds of nationality she submits that, as a UK citizen who worked for many years in the UK before moving to Ireland, she was discriminated against because of the lack of recognition of her years working in the UK. She further submits this contravenes EU legislation.
2.3 Her claim in relation to gender is based on the gap in her working career which she contends was caused because of her circumstances, as a separated female.
2.4 The complainant submits that she was disadvantaged because she was unable to satisfy the service requirements because of the age she was when joining the workforce in Ireland.
3. Summary of the Respondent’s Submission
3.1. The respondent denies discriminating against the complainant as alleged or at all. It submits that the same tax rules apply to the complainant as to any Irish national in similar circumstances. They further submit that the application of the tax rules referred to by the complainant apply equally to both genders, they can only consider actual service. The respondent submits that the age related limits on tax relief for contributions increase incrementally with age to assist all people with their pension provision.
3.2. Notwithstanding their denial of any discriminatory treatment the respondent contends that I have no jurisdiction to investigate this claim.
3.3. In relation to any claim under the Employment Equality Acts they state they were at no time the complainant’s employer.
3.4. Furthermore they submit that the Employment Equality Acts do not allow claims in relation to the operation of an occupational pension scheme.
3.5. If the complaint is considered under the Pensions Acts they submit that claims relate to an employer and they were not the complainant’s employer.
3.6. The respondent further contends that the complaint is outside the time limits of both the Employment Equality Acts and the Pensions Acts.
4. Findings and Conclusions
4.1 Employment Equality Acts
This claim was made by the complainant under the Employment Equality Acts. However, as contended by the respondent section 8.6 states:
“Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—
(a) the same terms of employment (other than remuneration and pension rights),
(b) the same working conditions, and
(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,
as the employer offers or affords to another person or class of persons,
where the circumstances in which both such persons or classes
are or would be employed are not materially different.”
And section 2 states: “pension rights” means a pension or any other benefits flowing from an occupational pension scheme.
I conclude that the complainant’s claim falls within this definition of “pension rights” and claims in relation to pension rights are specifically excluded by section 8.6 of the Employment Equality Acts and I therefore have no jurisdiction to investigate this claim under these Acts.
4.2 Pensions Acts
If I am to investigate this as a claim under the Pensions Acts I have to firstly consider the respondent’s submission that this claim is out of time. Section 81E (5) and (6) of the Pensions Acts states:
“Subject to subsection (6), a claim for redress in respect of a breach of the principle of equal pension treatment or victimisation may not be referred under this section after the end of the period of 6 months from the date of termination of the relevant employment.
(6) On application by a complainant, the Director, the Labour Court or the Circuit Court as the case may be, may, for reasonable cause, direct that, in relation to the complainant, subsection (5) shall have effect as if for the reference in it to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction, and where such a direction is given, this Part shall have effect accordingly.
The complainant left her employment with the respondent 23 January 2011 and her claim to the Equality Tribunal was made on 31 July 2014. This was over three years later and is well beyond the time limits. I therefore conclude that I have no jurisdiction to investigate this claim under the Pensions Acts.
5. Decision
I make the following decisions:
· in accordance with section 79 of the Employment Equality Acts that I have no jurisdiction to investigate this claim under the Employment Quality Acts as it relates to pensions rights.
· in accordance with section 81J (2) of the Pensions Acts that this claim is outside the time limits of section 81E and I have no jurisdiction to investigate this claim under the Pensions Acts.
____________________
Hugh Lonsdale
Adjudication Officer/Equality Officer
30 June 2016