Complainant

Respondent

Parties

Deirdre Morgan

Kildare And Wicklow Education And Training Board

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-00023083-001

07/11/2018

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-00023083-002

07/11/2018

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

CA-00023084-001

07/11/2018

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-00023084-002

07/11/2018

The complainant is a teacher and was employed by the respondent up until 30th June 2015 when she ceased employment. She is claiming that she was discriminated against on the gender and disability grounds and that she was victimised contrary to the Employment Acts. She is also claiming that she was discriminated against on the gender and disability grounds and victimised in relation to access to the injury gratuity contrary to the Pensions Act 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act, 2004.

The complainant stated that she sought access to the injury gratuity under the pension scheme for over 2 years and that she has never been given information on how to access it. She said that the continuous refusal to consider her request or to give her any information on how to assess was in reaction to her complaints under the Employment Equality Acts.   She states that she has been victimised because of taking complaints.

The respondent submitted that the complainant was treated fairly and was not subject to any discriminatory treatment during the course of her employment. Her employment ceased on the 30th of June 2015 on foot of a decision by the Minister for Education and the complainant is not an employee of the respondent since that date.

It was submitted that the complainant has failed to establish a prima facie case of discriminatory treatment on either the gender or disability ground. It was also submitted that the complaint was referred outside the statutory timeframe.

It was submitted that the complainant has failed to establish a prima facie case of discriminatory treatment on either the gender or disability ground. It was also submitted that the complaint was referred outside the statutory timeframe.

The first matter I must decide is whether the complaints were referred within the 6 month or 12 months (on the establishment of reasonable cause for the delay) statutory time frame set out in Section 77(5) of the Employments Equality Act 1998.

I note that the complainant’s employment with the respondent ceased on the 30th June 2015 and the complaints about discriminatory treatment and victimisation were referred to the WRC on the 7th November 2018. Therefore, these complaints have been referred almost three years outside the statutory time frame as provided in Section 77 and I have no jurisdiction in the matter.

The complaints were referred outside the statutory timeframe as provided for in section 77(5) of the Act. Therefore, the complaints are statute barred.

The complainant submitted that she has been discriminated on the gender and disability ground in relation to access to benefits under the Pension scheme. She said that she sought access to benefits provided for in Section 23 of the Education and Training Board Teachers Superannuation Scheme S.I. No. 292/2015, but she did not receive a response for over 2 years.   She believes that the ongoing and continuous refusal to give her any information on how to access the benefits under the pension scheme is discriminatory treatment and victimisation and is a reaction by the respondent to her complaints under the Employment Equality Acts. She said that she wrote to the Minister for Education and Skills, and a response she received on the 20th of December 2017, in which reference was made to complaints she had before the WRC and the Labour Court, constituted victimisation.

The respondent said that the complainant was removed from by the Minister for Education and Skills on the 30th of June 2015 and on the 2nd of August 2017 she wrote to the respondent seeking a pension under Section 23 of S.I. 292. On the 6th of October 2017 she was advised by the respondent that Ill Health Retirement would be her best option and the forms and procedures were sent to her.

The complainant completed the application for Ill Health Retirement and returned them to the respondent on the 6th June 2018. Her application was processed and the respondent’s Occupational Health Specialist following an assessment refused her application. The complainant was informed on the 7th of September 2018 and advised of the appeal procedure. Following the appeal, the respondent received a medical report on the 20th of November 2018 certifying that the complainant met the criteria for ill health retirement. An Executive Order was signed on the 22nd of November approving ill health retirement of the complainant and she was informed in writing of this approval.   The complainant’s pension entitlement has been calculated and approval has been sought from the Minister for Education and Skill for the payment of the pension.

It was submitted that the complainant has not established that she was either discriminated against or victimised in relation to access to the pension scheme. Her application was processed and expedited in as speedy a manner as possible in accordance with the requirements of the scheme and the Minister for Education and Skills.

The complainant states that she was subject to discriminatory treatment and was victimised contrary to the Pensions Act 1990, as amended by the Social Welfare (Miscellaneous Provisions) Act, 2004 which prohibits discriminatory treatment in relations to pensions. Section 66. —(1) states

“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’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another natural person (‘the other person’)—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of the other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

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

(a)   (i) that one is a woman and the other is a man, or

……………

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Part referred to as ‘the disability ground’),”

Section 22(3) states that victimisation is defined as:

“For the purposes of this Part, victimisation occurs where the dismissal or other adverse treatment of an employee by his employer occurs as a reaction to—

(a) the employee notifying the Director or the Board of an alleged breach of this Part,

(b) a complaint of a breach of the principle of equal pension treatment made by the employee to the employer,

(c) any proceedings by a complainant,

(d) an employee having represented or otherwise supported a complainant,

(e) the work of an employee having been compared with that of another employee for any of the purposes of this Part,

(f) an employee having been a witness in any proceedings under this Part,

(g) an employee having opposed by lawful means an act which is unlawful under this Part, or

(h) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

The complainant said that she was discriminated on the disability and gender ground because she was seeking access to the injury gratuity benefits under Section 23 of the respondent’s Superannuation Scheme for over 2 years and the respondent failed to provide her with the necessary information to progress her application. The respondent states that the complainant was not discriminated against in relation to access to the illness gratuity. She was not an employee of the respondent since 30th June 2015 as she had been removed from office by the Minister for Education and Skills for stated reasons. There was no delay in progressing her application once she completed the forms. In the circumstances of her case, she was directed towards the most appropriate part of the scheme for her, i.e. retirement on medical under the Superannuation Scheme.

I am satisfied that the complainant has failed to provide any evidence that the treatment of her by the respondent as regard her application for pension benefits under the Superannuation Scheme constituted discriminatory treatment on either the gender or disability grounds. If there was any delay in processing her application, it was directly attributable to the complainant as she did not return the application form after it was sent to her on the 6th of October 2017 until the 6th June 2018. In relation to the complainant’s contention that it was discriminatory treatment not to provide her with benefits under Section 23 of the Superannuation Scheme, it is a matter for the respondent, as administrators of the scheme, to process applications for benefits under the scheme in the most appropriate manner within the rules of the scheme.   The complainant has failed to establish that she was treated less favourably on the gender or disability ground than another person of a different gender or a person without a disability was or would have been treated in a comparable situation.

Victimised

The complainant also claims that she was victimised contrary to the Act. She submitted that she has taken a number of complaints to the WRC and the Labour Court in relation to discriminatory treatment and she believes that the delay in giving her information or access to the injury gratuity scheme was a reaction to her complaints. The complainant said that a letter she received from the Office of the Minister for Education and Skills dated the 20th of December 2017 supports her claim of victimisation.

The respondent denies that the complainant was victimised. They said that the complainant has referred complaints to the Equality Tribunal, the WRC and the Labour Court under the equality legislation and these matters were heard and decisions issued. The respondent submitted that these referrals had no influence whatsoever on any decision they made in relation to the handling of the complainant’s pension application.

I have examined the evidence presented by the complainant to support her contention that she was victimised, and I can find no evidence that the respondent subjected her to any adverse treatment as set out in the definition of victimisation from (a) to (e) cited above. I note the complainant submitted a letter from the Office of the Minister for Education and Skills, responding to a letter from the complainant, which referred to her complaints before the WRC and the Labour Court. However, this letter cannot be construed as victimisation by the respondent as they did not write it and furthermore nothing in this letter could be construed as directing adverse treatment of the complainant because she had taken complaints of discriminatory treatment.

For these reasons I find that the complainant has failed to establish that she was victimised contrary to the Act.

I find that the complainant failed to establish a prima facie case of discriminatory treatment on the gender or race grounds contrary to the provisions of the Act.

I find that the complainant has failed to establish a prima facie case of victimisation contrary to the provisions of the Act.

Employment Equality Acts, discriminatory treatment, victimisation, Pensions Act 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004, discriminatory treatment pensions, victimisation.