Complainant

Respondent

Anonymised Parties

A Teacher

A Minister and A Government Department

Representatives

Irish National Teachers Organisation

Cathy Smith, B.L. instructed by the Chief State Solicitor's Office

Act

Complaint Reference No.

Date of Receipt

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

CA-00016779-001

12/01/2018

The Complainant qualified as a primary school teacher and began employment as a qualified primary school teacher on 25th September 2012. From that date she was engaged pursuant to casual substitute teaching contracts of employment in a number of schools.

The Complainant alleges that she was discriminated against by the Respondent on the grounds of gender by reason of being treated as a new entrant for superannuation purposes and failure to recognise that the alleged break in service was maternity related.

There were extensive submissions made by the parties in the form of written submissions, documentation, case law and oral evidence and I have taken into account all the submissions made to me in the course of my investigation as well as the evidence presented at the hearing. 

Due to the sensitivities surrounding the details of this case I am exercising my discretion to anonymise this decision.

The Respondent raised preliminary matters as follows:

Investigation of the Complaint — Jurisdiction of the WRC

Section 79 of the Employment Equality Act provides for the investigation of a case referred to the Director General of the Workplace Relations Commission under Section 77. The only complaint which is open to investigation in this case is that set out in the WRC form. There is no jurisdiction to investigate a complaint under the Pensions Act, 1990 as no such complaint has been made. In those circumstances, the Complainant's submissions insofar as they seek to rely predominantly on the provisions of the Pensions Act, 1990 have no application to the matters at issue in this investigation.

In circumstances where the complaint relates to conditions of employment, contrary to Section 8 of the Employment Equality Act, the complaint is one which can only be maintained in the context of an employer-employee relationship. The definitions of employer and employee contained in Section 2 of the Employment Equality Acts clearly require the existence of a contract of employment between the parties, as is also defined within Section 2.

There is no contract of employment between the Complainant and the Respondent and accordingly there can be no discrimination contrary to Section 8 of the Employment Equality Acts. The Respondent relies on the Supreme Court decision in Anne Boyle v Hillside Park Preschool and the Minister for Education and Skills.

The Complainant's attempt to address this difficulty by the reliance by her on the Complainant's application form dated 30 July 2015, to the Department of Employment Affairs and Social Protection for the payment to her of maternity benefit, is completely misconceived. An erroneous submission is repeatedly made on her behalf to the effect that the Respondent "certified" itself as the employer of the Complainant. This is not only disputed as a fact but even if it were not disputed, it cannot meet the test set out in Section 2 of the Employment Equality Acts to create a contract of employment, where no such contract exists or has ever existed. There is no such concept within the Acts whereby employment can be certified.

Exclusion of Pension Rights

A further considerable difficulty arises for the Complainant when one considers the detail of her complaint as per the narrative in her Complaint Form and her submissions. The complaint relates specifically to the Complainant's pension rights, which are expressly excluded from Section 8 of the Act.

“8-(1) In relation to—

(b) conditions of employment, an employer shall not discriminate against an employee or prospective employee …

(6) 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.”

Section 2 (4) states:

“In this Act a reference to “conditions of employment” does not include remuneration or pension rights.”

Section 2(1) states:

“In this Act, unless the context otherwise requires—

“pension rights” means a pension or any other benefits flowing from an occupational pension scheme;

“remuneration”, in relation to an employee, does not include pension rights but, subject to that, includes any consideration, whether in cash or in kind, which the employee receives, directly or indirectly, from the employer in respect of the employment;”

The complaint which the Complainant has made is expressly excluded from the Acts. It relates exclusively to allegations of discrimination regarding her pension rights and membership of an occupational pension scheme.

Protection from discrimination on the protected grounds is provided for under pensions legislation and not employment equality legislation. The Complainant has made her complaint under a piece of legislation which expressly excludes the complaint she wishes to make.

The provisions of the pension legislation extend responsibility to the providers of a pension scheme and not simply to a person's employer. This further demonstrates the error on the part of the Complainant in initiating her complaint under the incorrect legislation.

In those circumstances the Respondent submits that it should not be obliged to respond to a complaint in relation to matters which are clearly excluded from the Employment Equality Acts, and thereby incurring the costs of responding to a complaint in relation to matters which are expressly excluded from the legislation.

In the circumstances the Respondent submits that the complaint is in fact misconceived in law and requests the Adjudication Officer to dismiss the claim in accordance with Section 77A of the Act.

In that regard, the Respondent relies on Mongans v Clare County Council DEC S2008-039.It is submitted that the complaint which has been made as to a breach of Section 8 of the Act is clearly excluded from the ambit of that section and accordingly, as with the situation in Mongans v Clare County Council has to be considered to be misconceived.

While the Respondent does not suggest that the Complainant has acted frivolously or vexatiously in raising the issues she has complained of, the Respondent submits that any continuation of the within complaint where the jurisdictional and legal difficulties have been brought to the attention of both the Complainant and the WRC by the Respondent, could now be considered to be vexatious.

This submission is made on the basis that where the complaint was initiated under the incorrect piece of legislation, it is respectfully submitted that it cannot succeed and, in that regard, and following the dicta of Birmingham J. in O'N v McD [2013] IEHC 135, this imposes a hardship on the Respondent where it has to expend time, effort and money in defending a complaint in those circumstances.

Accordingly, the complaint is both misconceived and vexatious within the meaning of Section 77A and the Respondent requests that it be dismissed on these grounds.

Further the Respondent submits that the Complainant cannot meet the burden of proof in this case as required under Section 85A(i) of the Act.

The Respondent submits that the Complainant has not established facts from which the complaint of discrimination can be presumed to have occurred.

Following Southern Health Board v Mitchell it is incumbent on the Claimant to prove beyond a reasonable doubt the facts on which she relies in seeking to raise a presumption of unlawful discrimination. The Respondent submits that she has not done so and cannot do so where the Respondent is not the employer of the complainant, for the purposes of an alleged breach of Section 8 of the Employment Equality Acts.

Proposed amendment of complaint

The error on the part of the Complainant is in fact demonstrated within her own submissions which submissions seek to support a complaint under the Pensions Act, 1990 rather than being confined to the complaint which was actually made under the Employment Equality Act.

This is even more demonstrable when one considers the concluding paragraphs of the

Complainant's submissions where reliance is placed on the Pensions Act, 1990, the Recast Directive and the Maternity Protection Acts but with no mention whatsoever of the Employment Equality Act.

For the avoidance of doubt the Respondent's submissions are in response to the complaint which has actually been made.

The Respondent reserves the right to respond to a complaint under the Pensions Act, 1990, if the Adjudication Officer accedes to what appears to be an intended application on the part of the Complainant to amend her complaint from one of discrimination under the Employment Equality Act to one of discrimination under the Pensions Act, 1990. The Complainant suggests that it is permissible to simply change the complaint form as it is not a "fundamental change". What could be more fundamental than the legislative basis on which a complaint is made? This is not a situation whereby an alleged fact was not included in the complaint form which the Complainant wishes to raise at the hearing. It is an entirely different complaint and to suggest that a respondent would not be prejudiced by the amendment is totally unrealistic. The "new complaint" under the Pensions Act, which is a totally different legislative framework than the Employment Equality Act is also substantially statute barred, which fact the Complainant fails entirely to address in her submissions. The Complainant's reliance on the decision in County Louth VEC v Equality Tribunal and Brannigan [2009] IEHC 370 is completely misplaced. While, as per McGovern J., it may be permissible to amend a claim set out in a complaint form, so long as the general nature of the complaint remains the same, this does not mean that an entirely new complaint can be made by way of an amendment. Just because the same facts might apply to two different complaints does not mean that they are the same complaint. It is how those facts interact with the legislative framework a party is relying on which characterises the nature of a complaint. A complaint under the Pensions Act, 1990 is entirely different to a complaint under the Employment Equality Act. What the Complainant proposes is not an amendment. It is a new complaint which is statute barred. The amendment suggested by the Complainant is further entirely different to that at issue in the decision in Clare County Council v Director of Equality Tribunal [2011] IEHCI 303. Again, what is proposed here by the Complainant is not an expansion of matters not specified on the form. The matters have already been clearly specified on the form. They are just specified in the context of an entirely different piece of legislation. The amendment suggested by the Complainant is essentially the conversion of the complaint from one under the Employment Equality Act to the Pensions Act. This is not only not permissible and is far from "not being a fundamental change", as has been casually suggested, but it goes to the jurisdiction of the WRC to hear the complaint.

In support of the Respondent's opposition to the application to amend the complaint form, the decision of the WRC in A Bar Worker v A Licensed Premises ADJ-00003795 is informative, in which the Adjudicator stated: "For reasons that will be obvious, an Adjudicator can only decide a matter on the basis of the legislation under which the complaint is referred, and complainants would be well advised to ensure that they have selected the legislation most appropriate to their complaint at the time of submitting it." This is the same position here. The Complainant has brought a complaint under the Employment Equality Acts and it is only that complaint which the Adjudicator has jurisdiction to hear. The Complainant's complaint, being one relating to her occupational pension scheme is expressly excluded from that legislation. It is provided for in the Pensions Act, 1990 but no complaint has been made under that legislation in the complaint form.This is not something which can be amended in the manner suggested by the Complainant.

Conclusion The complaint herein is misconceived in law and pursuing the complaint renders it vexatious. The Respondent requests that it be dismissed under Section 77A of the Act. The complaint is solely related to pension rights, which are expressly excluded from the Acts under which the Complainant has brought her complaint. The Respondent is not the employer of the Complainant for the purposes of the Employment Equality Acts. The Respondent submits that the Complainant's complaints herein should be dismissed. The WRC jurisdiction in this case is to investigate the complaint which was referred to it, being a complaint under the Employment Equality Act. There is no jurisdiction to investigate a complaint under the Pensions Act, 1990 where no such complaint has been made, and where any such complaint is statute barred. It is not permissible to amend the complaint in the manner suggested by the Complainant.

In response to the two preliminary issues raised by the Respondent the Complainant submits as follows:

Incorrect legislation

The complaint form of the Complainant makes it clear that the discrimination of the Complainant arises in respect of her treatment regarding her pension/removal from the Primary Teachers Pension Scheme and treatment as a new entrant when the purported break in service arose during a period of maternity leave. It is clear, therefore, that the discrimination alleged by the Complainant is in relation to her treatment by the Respondent regarding her occupational pension, her treatment as a new entrant post maternity leave and the less favourable treatment she has been subjected to as a result of her having availed of maternity leave whilst certified as an employee of the Respondent.

The Respondent will argue that the claim as lodged has been lodged under the incorrect legislation and will say that the Employment Equality Acts 1998-2015 do not provide protection from discrimination in respect of pension rights and membership of an occupational pension scheme.

Section 69 of the Pensions Act 1990 provides "every scheme shall comply with the principle of equal pension treatment". In addition, section 72(2) of the Pension Act 1990 prohibits an occupational pension scheme from disregarding any service during maternity leave for pension purposes.

It is permissible for the complaint form of the Complainant to be amended to be one of discrimination in the context of a claim under the Pensions Act 1990 arising from the discriminatory treatment of the Complainant in the context of her service during maternity leave being disregarded and the detrimental effect of this: being her removal from the Primary Teachers Pension Scheme into the less desirable new entrant pension scheme.

This is not a fundamental change to the claim, the facts grounding the claim-as per the original complaint form remain the same and the nature of the claim remains the same, being discrimination in the context of an occupational pension scheme. In County Louth VEC V Equality Tribunal and Brannigan [2009] IEHC 370, Mc Govern J. said that EE1, a non-statutory form was only intended to set out in broad outline, the nature of the complaint. It was permissible to amend a claim set out therein "So long as the general nature of the complaint remains the same".

In Clare County Council V Director Of Equality Tribunal [2011] IEHC 303, Hedigan J in applying Brannigan,

“Complainants should be allowed to expand on matters not specified in the form. So long as respondents are not taken by surprise or alternatively given adequate time to answer there can be no injustice therein"

There is no prejudice to the Respondent by the amendment sought being a claim under the Pensions Act 1990, as the nature of the claim being a claim of discriminatory treatment in the context of an occupational pension scheme remaining the same. It is submitted that the appropriate test is whether this amendment is in the best interests of justice and to ensure the real controversy between the parties is determined.

Notwithstanding the above submission, at the adjudication hearing the Complainant confirmed that she did not wish to proceed with an application to amend the Complaint Form. The Complainant submitted that the complaint was about equal treatment and the denial of preservation of her rights. The Complainant argued that the claim related to the fact that the Respondent did not recognise that the Complainant’s break in service was related to protected maternity leave.

Correct respondent:

In respect of the second preliminary matter raised by the Respondent, the Complainant submits that the Respondent is the correct respondent for the purposes of pay and pension. An application form for maternity benefits (MB 10) submitted to the Department of Social Protection which the Respondent completed at Part 4 shows that on that form the Respondent certified, as the Complainant’s employer, the of Complainant's maternity leave dates as being 28th September 2015 until 27th March 2016, which is precisely 26 weeks and that she was entitled to such period of maternity leave. The Respondent cannot seek to distance itself from this certification. This certification is dated 30th July 2015.

The terms of the teachers' superannuation scheme are not controlled or influenced whatsoever by any of the Boards of Management of the schools in which the Complainant has taught. Rather they are established and set by the Respondent. Section 65 of the Pensions Act 1990, defines employer as "the person by whom the employee is (or, in the case where the employment has ceased, was) employed under a contract of employment.” Therefore, it is clearly established that the Respondent is the employer of the Complainant in relation to the claim she makes regarding service for the Primary Teachers Pension Scheme purpose. Furthermore, the Respondent certified itself as being the employer between 28th September 2015 until 27th March 2016 as evidenced by the Department of Social Protection claim form.

Conclusion

It submitted that the treatment of the Complainant as a new entrant in the superannuation scheme and excluding the period she was on maternity leave constitutes less favourable treatment on grounds of pregnancy and maternity leave contrary of the Pension Act 1990, the Recast Gender Directive and the Maternity Protections Acts as compared to colleagues who were not on maternity leave.

Compensation is sought, together with an order reinstating the Complainant's service for superannuation purposes.

The first matter I must decide is if I have jurisdiction to hear these complaints.

In making my decision, I must take account of both the relevant legislation and the legal precedent in this area.

The Respondent raised as a first preliminary matter the issue of legislation under which the complaint was referred to the WRC. The Respondent argued that the complaint relates specifically to the Complainant's pension rights, which are expressly excluded from Section 8 of the Act. The Complainant argued that her claim arises as a result of her treatment regarding pension post-maternity leave. As such her claim relates to a detriment in the context of conditions of employment for employee who has availed of maternity leave. Therefore, the Complainant argued that the claim was correctly submitted under the Employment Equality Acts as it relates to the denial of the preservation of her rights and the recognition of her service during the time she was on maternity leave. In the written submission presented to the WRC on 25th April 2019, the Complainant offered an extensive reasoning in respect of the amendment of the WRC Complaint Form to allow for the claim to be heard under the Pensions Act, 1990. However, at the adjudication hearing, having been given an opportunity to make an application for such an amendment the Complainant confirmed that she wished to proceed with the claim under the Employment Equality Acts. I, therefore, must first determine whether I have jurisdiction to hear this complaint under the Employment Equality Acts.

Section 8 of the Act stipulates as follows:

“Discrimination by employers etc.

In relation to—

(1)

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

(6) 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,”

Section 2 Interpretation

“(1) In this Act, unless the context otherwise requires—

“pension rights” means a pension or any other benefits flowing from an occupational pension scheme;

“remuneration”, in relation to an employee, does not include pension rights but, subject to that, includes any consideration, whether in cash or in kind, which the employee receives, directly or indirectly, from the employer in respect of the employment;

(4) In this Act a reference to “conditions of employment” does not include remuneration or pension rights.”

Having examined the provisions of the Act, I am satisfied that pension rights are specifically excluded form the scope of the Employment Equality Acts.

It is, therefore, essential to refer to the Complainant’s WRC Complaint Form and examine the manner in which the complaint is framed by the Complainant to establish whether the claim relates to the service and recognition of maternity leave or pension rights of the Complainant.

The relevant parts of the Complainant initial referral submitted to the WRC on 12th January 2018 detail as follows:

“The claimant has been contributing to the National Teachers’ Superannuation Scheme since she commenced her employment. The claimant suspended her continuous service as a substitute teacher for maternity reasons…”“[The Respondent] incorrectly placed the claimant on the New Entrant Public Service Pension Scheme…” as [the Respondent] “claim that the claimant has been more than 26 weeks without continuous service.”

It goes on to say that the Respondent are discriminating against the claimant “by way of ignoring the reason for her break of continuous service in excess of 26 weeks…”

It is clear that the Complainant’s initial claim relates to a consequence of her having availed of maternity leave i.e. change in her pension entitlements.

In the written submission offered to the WRC prior to the adjudication hearing the Complainant clearly states in the “Background”:

“The within complaint of discrimination on grounds of gender by reason of the discriminatory treatment the Complainant has suffered and continues to suffer by reason of being treated as a new entrant for superannuation purposes and ignoring the reason for the alleged breaks in service of the Complainant being maternity leave. “

The submission goes on to argue that “the Complainant ought to have remained a member of the original scheme as the absence from 29 September 2015 to 27th March 2016 did not constitute a break in service and to treat the Complainant as being a new entrant in light of this certification is unfair, unreasonable and discriminatory”.

There is strong reliance in the written submission on the provisions of the Pensions Act, 1990. The Complainant argues, inter alia, that “Section 65 of the Pensions Act 1990, as amended defines employer as "the person by whom the employee is (or, in the case where the employment has ceased, was) employed under a contract of employment. Therefore, it is clearly established that the Respondent is the employer of the Complainant in relation to the claim she makes regarding service for the teachers' pension scheme purpose.”

The Complainant relies in her submission also on “Section 69 of the Pensions Act 1990 as amended provides "every scheme shall comply with the principle of equal pension treatment. " In addition, section 72(2) of the Pension Act 1990 as amended prohibits an occupational pension scheme from disregarding any service during maternity leave for pension purposes.”

The Complainant further relies on Section 72(2) of the Pension Act 1990 (the Complainant quoted Section 81A of the Act. It is therefore my understanding that the Complainant refers to Section 81A of the Pensions Act) and argues that this section “clearly prohibits an employee who has been on maternity leave from having her service deemed not to be reckonable for pension purposes” and “In many respects this is similar to section 6(2A) of the Employment Equality Acts 1998-2015 which prevents any discriminatory treatment on the basis of, inter alia, maternity leave.”

In conclusion, the Complainant argues that “the treatment of the Complainant as a new entrant in the superannuation scheme and excluding the period she was on maternity leave constitutes less favourable treatment on grounds of pregnancy and maternity leave contrary of the Pension Act 1990 as amended, Recast Gender Directive and Maternity Protections Acts.”

Having examined the parties’ submissions I am satisfied that the Complainant’s claim relates solely to the treatment of the Complainant’s pension i.e. removal from the Primary Teachers Pension Scheme and treatment as a new entrant as a result of the break in service during a period of maternity leave. I am, therefore, satisfied that the claim is with regard to the Complainant’s pension rights and as such is expressly excluded from the scope of the Employment Equality Acts.

I, therefore, find that I have no jurisdiction to hear this complaint.

Having carefully considered all evidence available to me I find that I do not have jurisdiction to inquire into the herein complaint.  

Maternity leave- pension rights-Employment Equality Act- Pension Act- jurisdiction