Complainant

Respondent

Anonymised Parties

A Teacher

A Minister & A Government Department

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-00013493-001

31/08/2017

I have taken the decision to anonymise this decision owing to sensitivities expressed by the complainant.

The complainant secured a permanent teaching role in 2010.  In August 2015 she left this permanent role to relocate with her husband and on 1^st September 2015 secured a casual substitute and fixed term contract which ceased on 17^th June 2016.  She commenced what she described as her maternity leave on 18^th June 2016 and secured another substitute teaching role on 1^st March 2017 followed by a permanent role on 1^st September 2017.

The complainant details that she was discriminated against by the respondent who did not recognise that her break in service on 18^th June 2016 was maternity related.  The impact of this break in service is that she is no longer a member of a Pension Scheme, hereinafter referred to as Pension Scheme A and is instead regarded as a new entrant and a member of (hereinafter referred to as) Pension Scheme B.

Submissions were substantial in volume of documentation, case law and oral evidence heard over three days and I have taken into account all the submissions including oral and written made to me in the course of my investigation as well as the evidence presented at the hearing.  It should be noted that a substantial amount of (sometimes same) case law was cited and relied upon to support both parties submissions including, Boyle v Equal Opportunities Commission (C-411/96), Webb v Emo Air Cargo (C-32/93), Brown v Rentokill Initial Uk Ltd (C-394/96), Kuckdeveci v Swedex Gmbh [2010] IRLR 346, R (Factortame) v Secretary of State (C-213/89), Peterson v Berufsausschuss Fur Zahnartze fur den Bezirk Westfalen – Lippe (C-341/08), County Louth VEC v Equality Tribunal and Brannigan [2009] IEHC 370, Claire County Council v Director of Equality Investigations and the Equality Tribunal [2011] IEHC 303, Trailer Care Holdings v Healy [EDA 128] Keefe v O’Hickey , Mongans v Clare County Council DEC-2008-039, O’N v McD [2013] IEHC 135, Southern Health Board v Mitchell AEE/99E

In the first instance the complainant responded to the two preliminary issues raised by the respondent.

It should be noted that in earlier submissions the complainant had detailed that they were not precluded from pursing a claim under the Pensions Act 1990 as the complaint form is not a statutory form.  On the third day of the hearing the complainant detailed that they were not pursuing any claim under the Pensions Act.

Preliminary Issue #1

In response to the preliminary issue #1 the complainant detailed that the claim was that the respondent did not recognise that the complainant’s break in service was maternity-related.  The complainant outlined, therefore, that the Adjudication Officer had jurisdiction to hear the complaint. 

The complainant submitted that this complaint regarding a break in service had been clearly set out within the complaint form whereby it detailed the respondent “are discriminating against the claimant under S.6 and S.8 of the Employment  Equality Acts by way of ignoring the reason for her break of continuous service in excess of 26 weeks between contracts constitutes less favourable treatment on grounds of gender/maternity leave” (sic). 

Preliminary Issue #2

The complainant rejected that the respondent had been incorrectly named.  It was detailed that the Minister for Education and Skills and Boyle [2007] IECA39  was applicable and that whilst this was, at the time of the hearing under appeal, it remains, in effect, good law.

Substantive Issue

As referenced earlier the complainant had detailed that they were not precluded from pursing a claim under the Pensions Act 1990 as the complaint form is not a statutory form.  On the third day of the hearing the complainant detailed that they were not pursing any claim under the Pensions Act.  It was detailed that the claim remained one under the Employment Equality Acts, namely that the complainant was discriminated against when the respondent did not recognise the complainant’s service while she was on maternity  leave. 

It was detailed that the complainant was on maternity leave evidenced by her availing of the state maternity benefit in 2016 and that she could rely on the maternity leave as provided for under the Acts as it followed the end of the complainant’s fixed terms contract which ceased on 17^th June 2016.  The respondent outlined that this was also supported by the Court of Justice in Gomez v Continental Industrias Del Caucho SA (C3442/01)whichreferences in Paragraph 32 to the “special relationship between a woman and her child over the period which follows pregnancy and childbirth”.  The complainant submitted that the jurisprudential principle that discrimination on grounds of pregnancy constitutes direct discrimination on grounds of sex is codified in Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (the Recast Directive). Under Recital 22 and Recital 25 of the Recast Directive the complainant submitted that there were provisions provided to protect the rights of women on maternity leave. 

The complainant outlined that Land Brandenburg v Sass [2005] IRLR147 held that employment benefits, which are conditional on lengths of service, should not exclude periods of service where employees are on “statutory maternity benefit intended to protect women who had recently given birth”.  It was detailed that this was further supported by Herrero v Instituto Madrileno de la Salud (C-294) [2006] IRL 296 whichrecognises the maternity leave period.  It was put forward that during this time the complainant could not look for work as she was preparing to give birth, gave birth, recovered from having given birth and was taking care of her child; all of which she is afforded protection to do so within the Recast Directive.

The complainant submitted that for the respondent to say that the complainant is not on maternity leave is misconceived.  It has been acknowledged by the respondent that the complainant ceased working on 17^th June 2016 and commenced maternity on 18^th June.  If that period after is not considered unemployment and if it is not considered annual leave, then the complainant questioned what this period should be regarded as.  It would be a fundamental breach of the complainant’s rights if she had to suspend her maternity leave to return to work to ensure she protected her service and thus ensure she continued to secure entitlements such as Pension Scheme A.  It was also outlined that without prejudice to the claim about service, the claim could also be about pay which is protected under the Recast directive. 

While a comparator was not necessary the complainant had put forward her husband who had a followed a very similar career path as herself but did not take maternity leave and  therefore his service continued to be protected and he continued to enjoy the benefits as a result of his service.

Preliminary Issue 1

The respondent detailed that the claim is in relation to pension rights which is specifically excluded by the legislation under the Employment Equality Acts.

It was also detailed by the respondent that the complainant may have referred the claim under incorrect legislation and the complainant may best be served by referring it under the Pensions Act 1990 but this had not been done and therefore the claim should be dismissed as it concerns discrimination in relation to pension rights specifically excluded by the legislation.  The respondent outlined that there was no claim other than for pension and that the only impact from the break in service was on pension rights.

In effect, the respondent outlined that the claim was misconceived citing Mongans v Clare County Council S2008-039 and suggested the claim may also be vexatious citing O’N v McD[2013] IEHC135.  It was outlined that to pursue on the third day of a hearing, a claim in relation to service was not appropriate as it was very clear that the claim was in relation to the complainant’s unhappiness with her pension rights.  The respondent referred to the complaint form submitted, where reference had been made by the complainant to the pension scheme on a number of occasions.

Preliminary Issue #2

The respondent detailed that the incorrect respondent had been named by the complainant.  They submitted that her various contracts of employment had been with respective boards of management in the schools where she worked.  Case law cited included O’Keeve v Hickey and it was advised that a decision was expected soon in the case of the Minister for Education and Skills & anor -v- Boyle [2017] IECA 39 which the respondent detailed was expected to clarify this issue. 

Substantive Issue

In response to early submissions by the complainant that it was within their right to amend the complaint form to pursue a complaint under the Pensions Act; the respondent outlined that this would be a fundamental change to the complainant’s original complaint, going beyond the jurisdiction of the WRC.

Without prejudice to the above, the respondent outlined that the complainant does not meet the burden of proof which is required under Section 85A(i) of the Acts and that the complainant had not established a prima facia case citing Minaguchi v Wineport Lakeshore Restaurant DEC-E2002-202.  It was put forward that the complainant was not on maternity leave from any school during the period 18 June 2016 to 28 February 2017 as she was not employed by any school during that period.

Without prejudice to the submissios that the Adjudicator did not have jurisdiction to hear the claim, it was also submitted that the rules of Pension Scheme A are not discriminatory on gender grounds.  Furthermore, the respondent outlined that where a person who is on maternity leave resumes work directly at the end of the approved maternity leave, they would remain members of Pension Scheme A.  However, the complainant was not on leave from an employer during the period 18 June 2016 and 28 February 2017.  She could not have been on maternity leave from employment with a school during that period as she was not employed by any school during that period. 

It was outlined that the complainant’s break in service was of 36 weeks duration and that there is no qualifier or exception contained within Pension Scheme A that allows for such a break in service.  If she had been on maternity leave there was a provision, but the provision which she was seeking was not contained within the terms of the pension scheme.  It was also submitted that should the Oireachtas have wished to qualify or make exceptions to that rule, to allow for the circumstances of the complainant, then the Oireachtas would have included this in the legislation.   They did not.  The respondent is required to comply with the terms of Pension Scheme A and it was put forward that the complainant is now properly a member of Pension Scheme B.

It was denied that Section 2(4) of the Employment Equality Act is in breach of the Recast Directive andthe respondentreferenced Kucukdeveci v Sweden GmbH [2010] IRLR346 and outlined that the Recast Directive has been properly transposed into Irish law via the Equality legislation and the Pensions Act.

The respondent detailed that while the complainant qualified for the payment of maternity benefit, this does not convert the period of time into maternity leave as defined by the Maternity Protection Acts 1994-2014.  It was detailed that maternity leave defined under the above said legislation is leave from employment and the complainant was not in employment and therefore, was not on maternity leave as defined under the legislation

It was disputed that the ECJ case law cited was applicable as the cases cited related to ‘employees’ and the complainant was not an employee during the period of time that she referred to (C-294/04, 284/02, 170.84, 342/01).

The details of the complainant’s employment history were not in dispute.

Section 85A (1) of the Act 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. In Determination EDA082 McCarthy v Cork City Council the Labour Court pointed out that at the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the facts proved. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.

In Melbury Developments v Arturs Valpeters the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case 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". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

Before I consider the substantive issue and whether the complainant has established a prima facia case, it is necessary to consider the preliminary issues raised:

Preliminary Issue #1

It was detailed by the respondent that the complainant’s claim was in relation to the complainant’s unhappiness with her pension scheme and that pension rights are specifically excluded by the Employment Equality Acts.  The complainant detailed that the only claim was a claim under the Employment Equality Acts relating to recognition of service during the time the complainant was on maternity leave. 

It should be highlighted that much time was taken up during the days of the hearing with submissions regarding whether the complainant could be, should have been or had submitted her complaint under other legislation.  However, that is not relevant to this first preliminary issue and it is only for me to determine at this juncture whether I have jurisdiction to hear this complaint under the Employment Equality Acts. 

With that in mind, it is appropriate to examine the Employment Equality Acts, including

Section 2 which details that“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;

 “conditions of employment” does not include remuneration or pension rights.”

Further on Section 8 defines discrimination by employers such that

“ (1) In relation to—

( 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,

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.

It is clear from the above that pension rights are specifically excluded under the Employment Equality Acts. 

Both parties referenced the complaint form to support their submissions regarding the preliminary issue, namely whether the claim was in relation to pension or service.  While noting that the complaint form is not a statutory form, I will firstly examine the said form which was submitted on 31st August 2017.  Without quoting the “complaint specific details or statement” in its entirety, it is clear that there is reference to pension rights as well as service whereby it mentions inter alia “the complainant had been contributing to the (Pension Scheme A) since she commenced her employment in 2006 without any break in service” and “the (respondent) incorrectly placed the claimant on the (Pension Scheme B) as the (respondent) claim that the claimant has been more than 26 weeks without continuous service”.  This statement also references that the complainant is discriminated against “by way of ignoring the reason for her break of continuous service”. 

It is clear that there is mention of Pension Schemes within the complaint form, as well reference to a claim that the respondent had ignored the reason for the complainant’s break in service.  I was also struck by the complainant’s understandable frustration with the pension scheme that she is now a member of and her sense of unfairness that she has been excluded from Pension Scheme A. 

This leads us to the examine the impact that the break in service had on the complainant, while noting that the legislation is clear that I have no jurisdiction on claims regarding pension rights.  If recognising this service period impacts on nothing else, then it would appear to be a moot issue.  In Irwin v Deasy [2010] IESC 35, cited in INT116, Murray CJ pointed out that the mootness doctrine is applied by the courts to restrain parties from seeking advisory opinions on abstract, hypothetical or academic questions of the law by requiring the existence of a live controversy between the parties to the case in order for the issue to be justiciable.  There were no submissions and no other evidence that suggested this break in service impacted on thing other than the complainant’s pension rights.

It is also useful to reference Dodd’s book  on Statutory Interpretation in Ireland where he details “the fundamental object of all interpretation is to give effect to the intention of the legislature” and that “the first consideration is to give the words used their literal meaning”.  In McGrath v McDermott [1988] IR258, at 275 which Dodd refers to, it was noted by Finlay CJ that “the courts have not got a function to add to or to leave from express statutory provisions so as to achieve the objectives which the Court may seem desirable”. 

It would appear that the complaint is with regards to pension rights and such complaints are expressly excluded from being referred under the Employment Equality Acts and that I must give effect to expressed statutory provision.  On that basis I find that the respondent is entitled to succeed with its preliminary issue on jurisdiction.

I find that the complaint does not fall within the ambit of the Employment Equality Acts and I therefore have no jurisdiction to further investigate the complaint.

Pension, maternity, service, equality