Complainant

Respondent

Anonymised Parties

A Senior Manager

A company in the SW 

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00010700-001

07/04/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00010700-002

07/04/2017

The complainant referred complaints against the above respondent on the 7^th of April, 2017.

In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated the case on to me, Orla Jones Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts.   Written submissions were received from both parties.   As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 13^th of July, 2017.

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.

The complainant submits that:

He is an employee of the respondent since 1986, he has had a range of roles and is currently a Sector Manager and is based in SW Ireland,

A Contributory Defined Benefit (DB) Pension has been an important part of his remuneration throughout his employment and in recent years the employee contribution has increased from an original 5% to an ultimate 10%,

This increase was presented by the company and undertaken by the complainant on the basis of preserving the DB pension scheme,

He does not have a written contract of employment and consequently his terms and conditions etc are established by history, practice and implied contract terms,

He is 56 years old (9 years remaining to normal retirement age),

The respondent announced and executed a plan to close the Irish Defined Benefit Schemes in 2016, Key features of the scheme DB were - DBFS (defined benefit final salary); inflation index linked pension; 10% employee contribution,

In its place a new Defined Contribution (DC) scheme was introduced; key features - up to 10% of salary DC contribution pa from employee matched by equal employer contribution; all contributions go to an investment fund; management fees applied to fund; risk in investments with employee,

Employees were given no choice other than join the new Defined Contribution (DC) scheme or not. There was no negotiation on the matter; the company approach to roll-out of the changes was 'an information process' but 'not negotiation' ,

Employees were given a choice regarding accrued DB pension entitlements to date (a) retain DB entitlement to date and access at normal retirement age but with no guarantee that the scheme would exist or that the company would support the entitlement in the future or (b) convert DB benefits into an amount in the DC scheme and obtain a once-off incentive in the form of an Enhanced Transfer Value (ETV) - a top-up to the amount transferred to the new DC fund calculated as a percentage of the estimated DB transfer value,

Due to concerns regarding the long-term security of the DB scheme,   in the absence of any convincing undertakings to support it, and considering the very long term nature of the decision/risk and given the once-off ETV incentive the complainant   decided to convert his accrued DB benefits to DC,

The ETV was constructed as a sliding scale against age ranging from 80% to 20% but with a very large 'cliff' for those 55 years and Employees in the complainants age group (aged 55-59) have experienced the worst possible outcome,

The ETV scale applied by the company specifically and by design discriminates against the complainant relative to peers to a very significant effect solely on the basis of age,

The respondent failed to provide him with a written statement of terms of employment in contravention of the Terms of Employment (Information) Act 1994.

The respondent submits that

It does not accept that the complainant was discriminated against on grounds of age or at all,

the respondents Pension Plan ("the DB Plan") closed to future accrual on 31 August 2016,

all amendments to the DB plan were carried out in compliance with the Pensions Act 1990,

ln accordance with the closure terms offered, following an extensive information period between April and July 2015, an Enhanced Transfer Value offer ("ETV offer") was made to employees in October 2016, the ETV offer was an option for employees to transfer their DB entitlement to the Defined contribution Plan ("the DC Plan") at an enhanced rate,

there was no obligation whatsoever on employees to take the ETV Offer, the complainant chose to accept it and his EW was transferred on 19 December 2016,

the complainant obtained independent financial advice which the respondent paid for, he signed a Member Decision Form & Discharge Deed on 1 December 201G discharging the Trustees and the respondent from all liabilities and waiving his rights in relation to the Plan, this deed contained a 10 day cooling off period for the employee following the signing of the deed,

The overall business objective of the ETV exercise was to give members the opportunity to transfer from the DB Plan to the DC Plan if they felt it was in their best interests to do so' it is common for companies to conduct ETV exercises in this way i.e. whereby the enhancement offered by the employer reduces the closer an individual is to retirement,

This sliding scale approach is used primarily because the closer an individual is to the retirement, the stronger the underlying statutory transfer value basis' This is due to the operation of the statutory funding standard (i.e.' the underlying transfer value is more generous for members closer to retirement compared with members further from retirement and' as such' requires less of an enhancement to make the EW Offer attractive to members)',

It has acted in accordance with the legislation and has treated all employees in a fair and equitable manner,

The respondent has met with the complainant on a number of occasions and has also responded in writing to his queries in relation to this matter,

The respondent rejects the claim that the complainant did not receive a statement of his terms and conditions of employment.

Complaint under the Employment Equality Acts

The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of age, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2015, in respect of his conditions of employment.   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 at the Hearing.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination.   If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary.   The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: “places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “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 specified in subsection (2)…..

Section 6(2) (f) of the Acts defines the discriminatory ground of age as follows – “as between any two persons ….. that they are of different ages, but subject to Section (3) … “

Thus the complainant must be the subject of less favourable treatment in comparison to another person on grounds of age. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts.   The Labour Court has stated in Melbury Developments Limited and Valpeters:

Section 85A of the Act provided for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. While those facts will vary from case to and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establish the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.^[1]

The complainant’s representative wrote to the Commission two days before the hearing indicating its intention to seek an adjournment on the day of the hearing, despite the fact that the complainant had received almost 8 weeks advance notice of the hearing date.   The complainant had been provided with the notification of the hearing date on 22^nd of May 2017 with almost 8 weeks advance notice of the hearing date.   This notice of hearing stated that “postponement of the hearing will only be granted in exceptional circumstances and for substantial reasons”.    On the day of the hearing the complainant’s representative initially attended without the complainant and sought an adjournment of the complaint under the Employment Equality Acts on the basis that actuarial information which had not yet been prepared and which was yet to be obtained, was necessary in order to support the claim of age discrimination advanced by the complainant.     Having considered the request for an adjournment and the reasons advanced for such request I decided not to grant the request for an adjournment and I advised the complainant’s representative that the complainant would be given the opportunity to present such additional actuarial information as he deemed necessary to support his claim in a submission to the Commission after the hearing and accordingly the request for an adjournment was refused.       The respondent was present at the hearing and both parties were advised that the hearing was to proceed as scheduled.  

A short adjournment was granted in order that the complainant could be contacted and called to the hearing.     Following this short adjournment the complainant presented himself at the hearing and the parties were advised that the hearing of all the within matters was proceeding as scheduled and that the complainant would be given the opportunity, to present such additional actuarial information as he deemed necessary in support of his claim, in a submission to the Commission after the hearing.   The complainant at the hearing refused to provide any evidence in support of his claim of less favourable treatment on the ground of age. Thus I am satisfied that the complainant has failed to establish a prima facie case of less favourable treatment on the ground of age in relation to the matters referred.   Accordingly I am satisfied based on the totality of the evidence adduced that the respondent did not discriminate against the complainant on the ground of age.

Complaint under section 7 of the Terms of Employment (Information) Act, 1994

The complainant advised the hearing that the respondent failed to provide him with a written statement of terms of employment in contravention of the Terms of Employment (Information) Act 1994. The respondent advised the hearing that the complainant had been employed by them since 1986 and that he had at the commencement of his employment been provided with a letter which contained his terms of employment but stated that they no longer had a copy of that letter given that it was issued 30 years ago.   The complainant at the hearing agreed that he had received a letter of appointment when he had commenced his employment in 1986 but stated that he no longer had a copy of it and could not say what it had contained.

The respondent submits that the complainant’s employment commenced in 1986 and that Section 6 of the Terms of Employment Information Act 1994 applies. Section 6 of the Act provides for employees who were in the employment before the commencement of the Act.   They can request a statement in accordance with section 3 and must be given it within 2 months of the request.   Section 6 states

The respondent advised the hearing that the complainant had never requested such a statement from the respondent but stated that had such statement been requested it would be provided. The respondent went on to state that the complainant had asked for a copy of his original contract but the respondent advised the hearing that it was explained to the complainant that no such copy existed and that the respondent unfortunately did not have one in its possession as it had been 30 years since the complainant commenced his employment.

The respondent went on to state that the complainant had since the commencement of his employment in 1986 received numerous promotions culminating in his reaching his current position as a Senior Manager.   The respondent advised the hearing that the complainant had received an increase in salary with each successive promotion as well as benefits such as entitlement to a company car. The respondent stated that the complainant was also provided with a yearly statement of salary and benefits etc.   The respondent stated that the complainant had not raised any issue in respect of his terms of employment in the 30 years during which he was employed by the respondent. The respondent stated that the complainant in his initial letter of employment would have been provided with details of his employers name and address and hours and place of work.   In addition, the respondent stated that the complainant was well aware of the company’s grievance and disciplinary procedures as he had in the past participated in such procedures in his role as a staff manager.  

The complainant at the hearing conceded that he did receive a yearly statement of salary and benefits but he stated that various elements were not contained in that statement. He advised the hearing that he had received a car allowance for the past 2 years.     He stated that he enquired about the operation of the allowance and was told by his manager to continue to claim mileage as he had always done.   This was a verbal communication. The complainant advised the hearing that it was drawn to his attention in December 2016 that he had been incorrect in continuing to claim mileage in this way and that an email had issued from the respondent implying that he had been doing something wrong despite the fact that he had been told to do it this way by his manager. The respondent advised the hearing that this email was a generic email and issued to those in receipt of a car allowance in order to clarify how such benefit was to be claimed as some people had been claiming incorrectly.     The respondent added that it was in no way directed at the complainant personally and it was merely to clarify the policy. The complainant submits that this issue would have been clarified for him if he had received a statement of his terms of employment.   The respondent stated that it would have no problem in providing the complainant with a statement of his terms of employment if he had requested same.  

The respondent went on to state that it the complainant receives a yearly statement of pension entitlements which specifies the details of his pension contributions and the company’s contributions from the date of his commencement of employment. The respondent advised the hearing that it had in December 2016 conducted a review of terms of contracts and that an email of these policy changes and benefit changes was sent to the complainant. The respondent stated that this email referred to changes in Annual Leave policy and in relation to other policies such as Parental Leave etc.   A copy of this was submitted in evidence.

In considering the evidence adduced in this case I am mindful of the Labour Court Decision in Irish Water v Patrick Hall, Decision no TE 15/6 TED 161 where the Labour Court found

In the circumstances of this case that represents an unacceptable squandering of public resources. It is a manifest absurdity to suggest, as the Complainant does, that these contraventions, if such they are, could or should be met with an award of monetary compensation. That is particularly so in circumstances in which the matters now complained of could easily have been rectified by a simple request to the Respondent to provide any further information that the Complainant considered necessary.

I am satisfied, on balance, based on the totality of the evidence adduced here, that this aspect of the Claimant’s complaint is not well founded in circumstances where it is clear that a request for a statement of his terms and conditions could have been made by the complainant to the respondent thus avoiding the need for a complaint of this nature.

Decision in respect of   CA-00010700-001

(i)                  I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998 - 2015 I issue the following decision. I find that,

the respondent did not discriminate against the complainant on grounds of age, in terms of section 6(2) of the Employment Equality Acts, 1998-2015 and contrary to section 8 of those Acts in relation to his conditions of employment.

Decision in respect of   CA-00010700-002

(ii)                In respect of the complaint under section 7 of the Terms of Employment (Information) Act, 1994. I find that,

this complaint is not well founded in circumstances where it is clear that a request for a statement of his terms and conditions could have been made by the complainant to the respondent in accordance with Section 6 of that Act.