ADJ-00011240

Complainant

Respondent

Anonymised Parties

A Senior Resident Engineer

A Local Government Authority

Representatives

Attended in Person

Attended in Person

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 81(e) of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

CA-00014912-001

10/10/2017

The Complainant was employed by the Respondent as a Temporary Senior Resident Engineer from 7 August, 2001 until his retirement on 1 September, 2017. The position of Senior Resident Engineer is a senior “site based” post where such an employee would manage one or more capital scheme infrastructural projects at any one time. Such positions are generally and normally temporary in nature due to the project based work that such employees are specifically recruited to carry out. However, due in part to the significant amount of capital investment in the water services area during the 2000’s, the Respondent informed the Complainant on 13 October, 2010 that it had undertaken a review of site based staff contracts throughout the organisation and that by operation of the law under the provisions of the Protection of Employees (Fixed-Term Work) Act 2003 his employment had become one of indefinite duration. The Complainant subsequently remained employed by the Respondent, as a Senior Resident Engineer, on a contract of indefinite duration, until his retirement on 1 September, 2017.

The Complainant contends that the Respondent should have applied “professional added years” to his service when calculating his pension and lump sum entitlements on the basis that he was employed on a continuous basis from 7 August, 2001 to 1 September, 2017. The Complainant claims that he was discriminated against by the Respondent on the age ground in terms of Section 66(1) and 66(2)(f) and in contravention of Section 70 of the Pensions Acts 1990 - 2015 in relation to the operation of the Respondent’s Occupational Pension Scheme.

The Complainant was employed by the Respondent as a Temporary Senior Resident Engineer from 7 August, 2001 until his retirement on 1 September, 2017 at the age of 65 years.

The Complainant submits that approx. 6 weeks before his retirement, he sought clarification from the Respondent’s HR Department as to whether or not he would be receiving the customary Engineers “professional added years” to his pension entitlements. The Complainant was informed that the Local Authorities Act 1926 did not apply to the post of Temporary Resident Engineer and as he was employed on a contract of indefinite duration that he was not entitled to professional added years.

On receiving this information on 19 July, 2017, the Complainant requested an internal review of the Respondent’s decision not to grant him the professional added years. In its review the Respondent quoted the administrators of the Local Government Superannuation Scheme (i.e. the Department of Housing, Planning and Local Government), which stated that the Local Authorities Act 1926 did not apply to the position of Temporary Resident Engineer. The Complainant questioned if the administrators have a list of positions to which the Act applies? The Complainant also questions how he can be called “Temporary” as he was awarded a contract of indefinite duration on 13 October, 2010.

The Complainant claims that he has been subjected to discrimination on the grounds of age in relation to the Respondent’s decision not to apply professional added years to his service when calculating his pension entitlements.

The Respondent submits that the Article 66(5)(a)(i) of the Local Government (Superannuation) (Consolidation) Scheme 1998 allows for the addition of professional added years to a person who “retires from an office which, at the time of the retirement, the Act of 1926 applies (or would have applied but for the substitution in section 2 thereof of the amendment effected by section 11 of the Local Government Act 1998 (No. 16 of 1998)) because the qualifications of that office are professional”.

The Respondent submits that the two questions that need to be addressed in relation to the post of Temporary Resident Engineer are:

a)       Does the 1926 Act apply to the office?

and

b)      Are professional qualifications required for appointment?

If the answers to both of these questions are in the affirmative, professional added years are allowable under Article 66(5) of the 1998 Scheme. In this regard, the Respondent has received advice from the administrators of the superannuation scheme (i.e. the Department of Housing, Planning and Local Government) which outlines that the 1926 Act does not apply to the temporary post of Senior Resident Engineer.

It is the position of the administrators of the scheme that it was always the intention that the Act would only apply to recruitment into permanent posts. As the 1926 Act does not apply to the recruitment to project or contract posts, it is the Respondent’s position that staff not recruited under this Act are precluded from consideration for professional added years. Therefore, as the Act of 1926 does not apply to the post of Temporary Resident Engineer, an entitlement to professional added years is not applicable.

The Respondent submits that it cannot apply anything different to the calculation of benefit in accordance with the scheme other than that which the administrators of the scheme so advise. It must also be noted that the consideration of whether professional added years may apply to an employee may only be determined at the time of retirement. Therefore, the Respondent would not have been in a position to advise the Complainant as to whether professional added years would or would not be applied until the time of retirement.

In line with its requirements the Respondent has communicated the above to the Complainant and following the internal review process alerted him of his right to refer this matter to the Office of the Pensions Ombudsman for further consideration.

The Respondent disputes the Complainant’s claim that he was subjected to discrimination on the grounds of age in relation to the operation of its Occupational Pension Scheme.

The matter I have to consider is whether the Complainant was discriminated against on the age ground in relation to the operation of the Respondent’s Occupational Pension Scheme.

The Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act, 2004 provides at Section 66 -

"For the purposes of this Part, discrimination shall be taken to occur where --

(a) 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 mentioned in subsection (2) (in this Part referred to as the 'discriminatory grounds') ........

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Part) are -- ....................

(f) that, subject to subsection (3), they are of different ages (in this Part referred to as 'age ground'),

Section 70 of the Act states: "(1) Subject to this Part, the principle of equal pension treatment is that there shall be no discrimination on any of the discriminatory grounds (including, subject to section 68(2), indirect discrimination) in respect of any rule of a scheme."

In evaluating the evidence before me, I must first consider whether the Complainant has established a prima facie case pursuant to Section 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” him, before a prima facie case is established and the burden of proof shifts to the Respondent.

The Complainant claims that the Respondent has subjected him to discrimination on the grounds of age in relation to the decision not to apply “professional added years” to the calculation of his pension entitlements following his retirement on 1 September, 2017.

The Complainant is a member of the Local Government Superannuation Scheme which is governed by the Local Government (Superannuation) (Consolidation) Scheme 1998.   Article 66(5)(a)(i) of the Scheme provides that “where a registered officer of a local authority retires from an office which is— an office to which, at the time of the retirement, the Act of 1926 applies (or would have applied but for the substitution in section 2 thereof of the amendment effected by section 11 of the Local Government Act 1998 (No. 16 of 1998)) because the qualifications of that office are professional ….the local authority may, subject to paragraph (c), add to his or her pensionable local service a period not exceeding one-third of such service ”.

In effect, this provision allows for the addition of professional added years to certain professional, technical and specialist posts which are specified by order[1] made in accordance with subsection (1) of Section 2 of the Local Authorities (Officers and Employees) Act, 1926 (as amended by Section 11 of the Local Government Act, 1998). The Complainant was employed as a Senior Resident Engineer by the Respondent and it is clear that this position is not a specified office for the purpose of Section 2 of the 1926 Act.

In order for the Complainant to succeed in establishing a prima facie case of discrimination in the instant case, it must be established that there are at least some facts supporting a claim of less favourable treatment in a comparator situation and that there is a nexus between the alleged treatment and the protected ground of age. Having regard to the evidence adduced, I am satisfied that the reason why the Complainant did not qualify for professional added years was directly attributable to the fact that the post which he held was not designated as a specified office for the purpose of the 1926 Act and that this was not in any way attributable to his age.

In the circumstances, I am satisfied that the Complainant has failed to provide any facts to support his assertions of less favourable treatment by the Respondent on the grounds of age in the circumstances of the present case. Accordingly, I find that the Complainant has failed to establish a prima facie case of discrimination on the grounds of age in relation to the operation of the Respondent’s Occupational Pension Scheme.

Having investigated the above complaint, I hereby make the following decision in accordance with section 81E of the Pensions Acts:

The Respondent did not discriminate against the Complainant on the age ground pursuant to Section 66(1)(a) and 66(2)(f) and in terms of Section 70 of the Acts in relation to the operation of the Occupational Pension Scheme.

Pensions Acts, 1990 – 2015 - Section 70 – Equal Pension Treatment – Discrimination – Age Ground – No Prima Facie Case