EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-124
PARTIES
Marjolijn Wessel
(Represented by Connellan Solicitors)
AND
Aer Lingus Limited
(Represented by Rosemary Mallon B.L. instructed by Arthur Cox Solicitors)
File reference: et-153238-pen-15
Date of issue: 8th September 2016
HEADNOTES: Pensions Acts 1990– family status-pensions – Conditions of Employment
1 DISPUTE
1.1 This dispute concerns a claim by Marjolijn Wessel that she was discriminated against by Aer Lingus on the grounds of her family status contrary to section 80 of the Pension Acts in relation to conditions of employment in terms of section 8 of those Acts and that she was harassed contrary to section 14A of the Employment Equality Acts/ or Equal Pay.
1.2 The complainant referred a claim to the Director of the Equality Tribunal on February 1st 2015 under the Pension Acts. On 7th June 2016, in accordance with his powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission delegated the case to me, Pat Brady an Adjudication Officer/Equality Officer), for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on 30th June 2016.
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 BACKGROUND
2.1 The complainant started work for the respondent in 2006 and is a member of the cabin crew.
2.2 The background to the claim lies in changes to the company pension scheme necessitated by a potential actuarial shortfall. The scheme was facing a deficit of €700 million. The company ‘Defined Benefit’ scheme closed on January 1st 2015. Employees were then transferred to a new ‘Defined Contribution’ scheme.
2.3 Extensive negotiations followed involving all parties and as matters could not be fully resolved a dispute about the re-structuring of the pension scheme was referred to the Labour Court on December 3rd 2012. The Court issued its recommendation on January 2nd, 2013 and addressed all issues except two which were held over.
2.4 These ultimately came back to the Court again which appointed a ‘Technical Group’ to address them. In due course the Labour Court adopted the decisions of the Technical Group in a further recommendation.
2.5 The thrust of the recommendation was that the respondent provide a once off additional payment to the pension fund of €110 million. This was to be allocated to the benefit of members of the fund on the basis of a formula which was outlined in the submissions and whose detail is not relevant
2.6 What is relevant is the further recommendation of an Expert Panel which recommended a ‘top-up’ payment to the benefit of each member calculated by reference to their ‘variable pay’ earnings (premium pay etc) based on their actual earnings in a defined three year period. The basis for that calculation was to be as follows; the variable pay for the previous three years which was earned by the individual worker, divided by total variable pay for the eligible workforce for the three year period, then multiplied by €30.2 million.
2.7 These proposals were put out to a ballot supervised by the ICTU and they were accepted by 1030 votes to 436 and the company was notified.
2.8 The formula was calculated by reference to a three-year period during the course of which the complainant was absent on maternity and protective leave. As a consequence, the formula produced an amount of €8043 or about €8-9,000 less than she would have got if she had been at work for the entire period of the reckonable period. The duration of her absence was not in dispute.
3 COMPLAINANTS' SUBMISSION
3.1 The complainant says that this is a simple matter of discrimination on the family status ground, and that she was less favourably treated than a male or female colleague who did not take maternity leave.
3.2 Pregnancy is a period of protected leave. Had the complainant not been on maternity and protected leave she would have been eligible for the premium payment earnings. These would then have been factored into the formula for calculating her entitlement under the Expert Group formula.
3.3 She further complained that she was subjected to bullying and harassment, and threats of dismissal by the respondent while on medical leave.
4 RESPONDENT'S SUBMISSION
4.1 In the first place the respondent says the formula was applied to all employees on the basis of equality; where they had premium pay earnings the actual earnings were reckoned according to the formula.
4.2 Where an employee was absent for any reason due to sick leave, career breaks etc and did not have reckonable earnings then their share of the ‘pot’ was reduced accordingly as it had been in the case of the complainant. For this reason it submits that the reason for the absence is irrelevant, including if it be on the family status ground; if there were no earnings to be reckoned for all or a part of the period, then the formula could take no account of such periods.
4.3 The respondent also says that given the fact that the complainant did not actually work the variable hours in the period she was absent there is no means of establishing a sum that might be used in the calculation of her entitlement, and therefore of knowing what it might have been.
4.4 The respondent also submitted that the family status ground could not be said to cover the entire period of the complainant’s absence. If her family status changed in the course of her absence she cannot argue that any less favourable treatment was due to her family status.
4.5 The law does not require payment by the employer to a woman on maternity leave and the complainant is seeking to have what is in effect a payment of wages reckoned for the purposes of her complaint, as if it had been paid, and thereafter a calculation of her entitlement under the formula but in circumstances where no payment was actually made. In other words the complainant is seeking to be paid for a period during which she was not eligible for payment of wages, and in respect of which the non-payment of wages is not discriminatory.
4.6 The question raised by the respondent is whether a woman on maternity leave is entitled to be treated for the purposes of the calculation as if she had been at work and in receipt of wages and also to have a cash benefit as a result.
4.7 The respondent further argued that because the complainant had accepted part of the deal, the stabilisation payment she was estopped from making any further claim. This is not simply on the grounds of her being bound by the collective agreement but she has accepted the arrangement in contract. Legal submissions were made on this which are reviewed below.
4.8 In relation to the alleged bullying etc the respondent says that communication with the complainant during her period of leave was permitted by the company’s right to investigate absences over a certain threshold. These provisions were agreed with the respondent’s trade union.
4.9 In conclusion the respondent says that the complainant was treated no less favourably than any other employee in the Expert Panel formula was applied on a mathematical basis to all, and likewise all persons who had periods of absence would have those periods treated the same.
5 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
5.1 I have to decide if the exclusion of the complainant’s period on maternity and related leave from the calculation of her payment was discriminatory on the grounds of family status. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
5.2 Section 85A (1) of the Employment Equality Acts, 1998 – 2007 states:
“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” This means that the complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent.
5.3 The complainant has done so in this case. The question for the respondent is whether the status of the complainant on maternity and related leave should have been treated as being different to other forms of leave (career breaks etc) on the basis that pregnancy is protected leave.
5.4 Regarding the estoppel submission I will address that as a preliminary matter. The respondent relied on a decision of the EAT in the case of O’Hara v Aer Lingus PW 77/2014, PW 283/2014 (on appeal from the Rights Commissioner). In that case the claimant was party to a collective agreement, one of whose components was an agreement to forego increments. The claimant nonetheless sought payment of the increment. The EAT held that as the trade unions had agreed to the terms of the relevant agreement and the company had implemented its terms, and which were applied to all employees including the claimant, his acceptance of the beneficial terms (including a payment to him). The EAT varied the decision of the Rights Commissioner and denied his claim for payment of the increment.
5.5 The facts are similar in this case. Nonetheless, there is a clear difference between the acceptance of a specific, defined benefit, in this case an increment, on the one hand and the right of an employee to challenge whether a particular agreement, even one from which she has derived some benefit offends the broader requirements of equality legislation.
5.6 For example the Pensions Act makes it very clear that even an established rule of a Pension scheme which has discriminatory effect will be null and void. Section 81 (1).
1) 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
5.7 It is hard to see how a discriminatory provision in relation to a pension related matter could survive, or worse still, as argued by the respondent, be immune from scrutiny under pensions equality principles. This provision reflects those in the Employment Equality Act at section 9 which provide, at Section 9.2;
2) If an agreement or order to which this section applies contains a provision which does not fall within subsection (1) but which gives rise to discrimination in relation to any of the matters in paragraphs (a) to (e) of section 8 (1) then, subject to subsection (4), that provision shall be null and void.
There is provision at section 86 of the Employment Equality Act for the investigation of complaints arising by the Director. Accordingly there can be no basis for holding that an employee is estopped from making a claim under the equality provisions of the act, whatever her previous actions. The clear legal principle running through the foregoing is that discriminatory provisions in pension rules are void ab initio and are open to challenge in collective agreements.
5.8 The respondent relied on the further case Henry and ors v London General Transport Service [2001] EWCA Civ 488 which is so distant on its facts from the instant case as to be of little relevance and I find that nothing turns on it. While the case concerned the incorporation into a contract of employment of the terms of a collective agreement (which had not been the subject of a ballot, incidentally) I can see no basis in this for suggesting that a citizen may not undertake a challenge to any provision on the grounds that it might breach the law on equality.
5.9 The respondent’s replies to the substantive case by saying that every employee’s absence was treated exactly the same and the ‘top up’ benefits were calculated on the basis of a purely mathematical formula, in turn based on actual earnings. It argues, and I accept that there is no entitlement to pay for the period of protected leave and so the application of a formula based on pay and pay alone cannot be considered less favourable treatment. The discrimination prohibited by the Act is ‘pregnancy-related’.
5.10 The purpose of ‘Protective Leave’ is to ensure that a woman who leaves the workplace in order to have her baby is placed at no disadvantage, primarily in respect of her right to return to work to her own, or an acceptable position when she is ready to do so.
5.11 In the Equality Authority Guide to Maternity leave rights the question is asked ‘Will my job be safe when I’m out on maternity leave’ and the answer which follows is ‘If you are on maternity leave, or maternity-related leave, being away from work will not affect your rights. You should be treated as if you are still there’.
5.12 As an answer to that particular question, it is fine as far as it goes, but a woman is not treated as if she was still there in respect of payment of wages, for example, or at least not as a matter of legal compulsion, although some employers do make provision for this. There is an entitlement to payment when the woman is receiving antenatal or post-natal care, when attending antenatal classes or when taking time off or working reduced hours for breastfeeding, (and during the first 21 days of health and safety leave.)
5.13 It is not, for example unlawful in respect of a sick pay scheme and where the illness is pregnancy related to reduce the rate of ‘pay’ (actually sick pay), although the impact of this may have to be modified in the future. So it was held in McKenna V NWHB Determination no DEE 061. The rule is that a woman should be treated in the same way as a male worker in the same circumstances. Note that in these circumstances there is no special protection arising out of the fact that the woman is on maternity leave. There is an echo of this principle applicable in the current case. The complainant is seeking to argue that equality of treatment is not sufficient and that a woman on maternity leave is, essentially entitled to special treatment, Clearly there is a need to distinguish where a detriment arises as a result of, or on the grounds of the woman’s pregnancy or maternity leave, and where it arises from the operation of a policy or agreement which is applied without regard to any of the discriminatory grounds, including family status.
5.14 Thus it has been held that pay includes pay rises, specifically back pay. In Gillespie and others v Northern Health and Social Services (and others Case C-342/93 the complainants were paid a proportion of their wages which declined as they went through the course of the pregnancy, but which was obviously related to the currently obtaining pay rates.
5.15 The court reiterated that the Directive (92/85/EEC) does not require payment of full pay during maternity leave absence, where sick pay rates have been adjusted to reflect pay rises awarded after the commencement of the maternity leave and be reflected in the rates paid to the women involved. The court said;
The benefit paid during maternity leave is equivalent to a weekly payment calculated on the basis of the average pay received by the worker at the time when she was actually working and which was paid to her week by week, just like any other worker. The principle of non-discrimination therefore requires that a woman who is still linked to her employer by a contract of employment or by an employment relationship during maternity leave
must, like any other worker, benefit from any pay rise, even if backdated, which is awarded between the beginning of the period covered by reference pay and the end of maternity leave. To deny such an increase to a woman on maternity leave would discriminate against her purely in her capacity as a worker since, had she not been pregnant, she would have received the pay rise.
5.16 This is clear and easily distinguishable from the current complaint where, for the disputed period nothing was paid to the complainant but for her case to succeed she would have to succeed in a broader argument that she should have been paid, or in some way remunerated for the purposes of calculating her benefit under the deal. And, she says that it was the failure of the respondent to have done so which represented the less favourable treatment. Critically for her case, I can not see how it represented less favourable treatment on the grounds of her pregnancy, or specifically, family status. The only possible comparator, in terms of someone who was more favourably treated, would be a person who actually worked for a greater period than she did and was paid for so doing in the normal way.
5.17 The respondent submitted at the hearing that the complainant was essentially making a claim for payment of a proportion of wages arising during her maternity and other leave. Apart from the legal question which arises here it is also difficult to calculate her entitlement.
5.18 The formula used for all other workers was based on actual premium earnings; the complainant had reduced earnings in the period and no basis was advanced other than a general estimate of her entitlement had she worked the full three period and, importantly earned premium earnings throughout. I agree with this analysis.
DECISION
6 I have investigated the above complainant and make the following decision in accordance with section 79 of the Employment Equality Acts and section 41 (5) (a) (iii) of the Workplace Relations Act 2015 that:
6.1 The scheme established by the company was not discriminatory on the family status ground.
6.2 Accordingly I dismiss the complaint.
Pat Brady
Adjudication Officer/Equality Officer
8th September 2016