Complainant

Respondent

Parties

John Lee

South Dublin County Council

Representatives

SIPTU

None

Act

Complaint Reference No.

Date of Receipt

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

CA-00020512-001

12/07/2018

The complainant is retired from the respondent local authority. He claims discrimination on the age ground in the exclusion of certain overtime in calculating his pension. The respondent denies the claim.

In submissions, the complainant outlines that he is a member of the Local Government Superannuation Consolidation Scheme. He asserts that he was less favourably treated in respect of the inclusion for pension purposes of regular rostered overtime. The complainant commenced working for a predecessor of the respondent in 1968 and became a Meter Reader / Sampler in 1991, the role he worked until he retired in March 2013. The overtime was worked Monday to Friday, when the complainant would gather samples between 6am and 9am. The overtime worked between Wednesday and Friday was reduced by one hour per day in 2009.

The complainant raised the issue of including overtime in the calculation of his pension. The final decision issued on the 18th January 2018. This letter advised the complainant that he could appeal the decision to the Pensions Ombudsman, but the complainant later established that this complaint had to be made to the WRC / Labour Court. The complainant submitted that the letter amounted to a misrepresentation.

The complainant cited the EU Directives underlying the legislation: Directive 2000/43/EC and Directive 2000/78/EC. This includes the recital that laws, regulations and administrative provisions contrary to equal treatment are abolished. It was submitted that a fundamental requirement of equal treatment in occupational benefit schemes. The Act provides for the limitation period stemming from the end of employment, extendable with reasonable cause. Where misrepresentation occurred, the Act permits the date of contravention to be the date the complainant became aware of the act of discrimination.

The complainant submits that the less favourable treatment arose on ground of age. He refers to five members of the same pension scheme employed by a different local authority as comparators. One case follows a recommendation from a Rights Commissioner and appeal to the Labour Court. Three others were subject to an adjudication by the Workplace Relations Commission followed by appeal to the Labour Court. The Labour Court upheld the members’ interpretation of Circular S12/91. This other local authority then applied regular rostered overtime to all staff.

The complainant asks that should the respondent not rebut the inference of discrimination, his pensionable remuneration should be retrospectively amended so that he obtained reckonable benefit to all overtime days.

At the hearing and in reply to the respondent, the complainant said that the regular, rostered overtime on Mondays and Tuesdays was not reduced in 2010. It was the overtime occurring on Wednesdays to Fridays that was reduced in 2010. He had agreed to this reduction. He said that the letter showed that there was overtime Wednesdays to Fridays. It was submitted that the complainant undertook these duties every Wednesday to Friday, thereby meeting the criteria in Circular S12/91. He commented that this had been the argument advanced by the other local authority.

In respect of annual leave, the complainant said that he would have taken a claim to include the Wednesday to Friday overtime in the calculation of annual leave. He said that there is no statutory requirement to include the overtime in the calculation of annual leave pay.

In respect of the age discrimination, the complainant pointed to the age of the comparators on retirement (61, 60, 65, 62 and 61). The complainant, however, continued until normal retirement age.

The complainant outlined that he was the only tester doing rivers. He submitted the time sheets directly to HR as there was a local difficulty with the local engineers. He worked on the instructions of the Central Laboratory.

In comprehensive documentation accompanying the submission, the complainant includes his contract of employment as Meter reader / Sampler, dated the 15th January 1998. This states that the complainant’s hours of work are 8.30am to 5.30pm, Monday to Thursday and 8.30am to 4.30pm on Fridays. Revised normal hours were set out by letter of the 11th January 2006.

The letter of the 11th January 2006 also states that the respondent has approved three hours of structured overtime twice a week. The letter of the 17th January 2009 sets out that the complainant was part of a historic arrangement between four local authorities to test water supply across their jurisdictions. The respondent letter of the 27th August 2010 confirmed that overtime on Wednesday, Thursday and Friday was reduced from three hours to two hours per day as of the 1st September 2010.

The complainant applied through the Internal Disputes process to challenge the reckonability of overtime in the calculation of superannuation benefits. It confirmed that disputes are adjudicated per S12/91. The appeals officer held that the overtime of Wednesday to Friday was not a requirement stipulated in the complainant’s terms and conditions of employment. It referred to internal emails to this effect, one being the 10th February 2012.

The complainant includes a letter of the 4th December 2017 from the Pensions Ombudsman to the LGMA setting out reckonability of overtime for pensions purposes is an ‘employment issue’ (although not specifying which statute) and not within the jurisdiction of the Pensions Ombudsman.

The complainant includes the Rights Commissioner recommendation issued per the Industrial Relations Act r-131189-ir-13. The Rights Commissioner held that the weekend overtime was not optional and part and parcel of employment. She recommended that the superannuation calculations be amended to reflect the overtime. This recommendation issued in June 2014 and worker had retired in 2012. On appeal, the Labour Court upheld the recommendation (AD1480).

The complainant included the recommendation in ir-153807-ir-14. Here, there worker retired in March 2015. The Rights Commissioner held that the overtime was regular, rostered and, therefore, reckonable. This was held on appeal by the Labour Court (LCR21463).

The complainant cites Circular 12/91. This provides that overtime is only reckonable in exceptional circumstances and where specific conditions are fulfilled. The overtime must not be optional and must be part and parcel of employment. It must be regular and recurring and work that could only be performed outside of normal hours of work.

In submissions, the respondent outlined that the complainant worked for a predecessor body and was made an officer grade in 1994. From the 1st January 2005, structured overtime was approved twice a week for a period of 6 hours. This was reduced to four hours as of 2010. The respondent indicated that a survey of the samples showed that most were taken during normal working hours.

The respondent indicted at the outset of the hearing that it was not aware that this was a discrimination claim. The complainant was approved in 2006 for 6 hours of overtime per week. In 2010, this reduced to 4 hours per week. The 6 hours per week was awarded in calculating pension but the other work was not.

The respondent outlined that it required robust information to change the calculation of hours. They would expect a Chief Executive order regarding the structuring of the whole overtime as well as time sheets. It submitted that annual leave was paid on the basis of 6 hours of overtime per week and not any additional overtime. It stated that there were Chief Executive orders for some overtime, which ended.

The respondent outlined that the difference between the complainant’s case and the case involving the other local authority were that the overtime in this case did not meet the criteria, i.e. being regular, rostered and recurring.

The respondent indicated that the sample information was prepared in the week before the adjudication and compiled for the purposes of this hearing. A named official wrote the 2010 letters and the letter of 11th January 2006 refers to 6 hours structured overtime i.e. only the Monday and Tuesday hours. It submitted that the austerity measures would have been applied to all the overtime hours.

The complainant commenced working for a predecessor of the respondent on the 21st November 1968. He became a Meter Reader / Sampler in 1991 and undertook this role until his retirement on the 2nd March 2013. He cites the 18th January 2018 as the most recent date of discrimination as this was the end of the respondent internal review process, where the complainant was unsuccessful. He cites as comparators five retired employees of another local authority, four of who retired before reaching retirement age.

This is a complaint of age discrimination pursuant to the Pensions Act, as amended by the Social Welfare (Miscellaneous Provisions) Act, 2004. This transposed the anti-discrimination provisions in respect of occupational pensions set out in Directive 2000/43/EC and Directive 2000/78/EC. The Equality Act, 2004 transposed other elements of these important Directives into the Employment Equality Act and the Equal Status Act.

Direct and indirect discrimination

Section 66 of the Pensions Act, as amended, defines pension discrimination in the following terms:

‘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 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’

Age discrimination arises between any two persons where ‘they are of different ages’, although above school-going age. [section 66(2) and (3)]

Burden of proof

The following is the burden of proof in pension discrimination cases:

’76 (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be reasonably inferred that there has been a breach of the principle of equal pension treatment in relation to him, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in proceedings which may be more favourable to a complainant.’

Clauses that are null and void

Section 81D provides that certain contract terms are ‘null and void’ as they do not comply with the principle of equal pension treatment. The section provides that where ‘a contract of employment contains a term (whether expressed or implied) which, if it were a rule of a scheme, would not comply with the principle of equal pension treatment on [the discriminatory grounds], the term shall, to the extent that it would not so comply, be rendered null and void and the provisions of section 81 shall apply to that term as they apply to a rule of a scheme in respect of employees.’

Sections 80 and 81 address the consequences of a finding of ‘null and void’ in respect of the admission of a complainant to, or the ‘levelling up’ of, the scheme.

Right to seek redress and the limitation period

Section 81E set outs the general right to complain:

‘(1) A person who claims not to be receiving, or not to have received, equal pension treatment in accordance with this Part or to have been penalised in circumstances amounting to victimisation may, subject to subsections (2) to (6) and subsections (1) and (2) of section 81F, seek redress by referring the case to the Director.’

Section 81E (5) provides:

‘a claim for redress in respect of a breach of the principle of equal pension treatment or victimisation may not be referred under this section after the end of the period of 6 months from the date of termination of the relevant employment.’

This is extendable for a further 6 months where reasonable cause is shown.

Misrepresentation

Section 81E (7) provides for a date of breach later than the date of retirement where misrepresentation occurs:

‘(7) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5) shall be construed as if the reference in it to the date of termination of relevant employment were a reference to the date on which the fact of misrepresentation came to the complainant’s notice.’

In section 81H (8), the Act provides ‘Where a delay in referring a case under this Part to the Director, Labour Court or Circuit Court is attributable to the respondent's having misrepresented to the complainant the facts of the case, references in this section to the date of referral shall be construed as references to the date of the misrepresentation.’

Relevant case law – Pensions Act

The question of ‘misrepresentation’ has been considered by both the Workplace Relations Commission and the Labour Court in complaints arising from the Pensions Act and the equivalent provision in the Employment Equality Act.

In Limerick City and County Council v Cantillon PAT 191, the Labour Court was ‘not satisfied that facts have been presented to substantiate the point that the two comparators mentioned were treated differently due to their age, and accordingly the Court is not satisfied that the Respondent misrepresented the Complainant’s pension entitlements.’

In ADJ-00021265 (a case similar to this one), the adjudication officer held:

‘Having reviewed the Council’s letter I find that the letter outlines the position of the Council in regard to the treatment of overtime in the calculations of superannuation entitlements. This position has been maintained by the Council at all times and is reaffirmed by the letter. I note that the Complainant has a different view in that regard. A difference of opinion, however, does not amount to misrepresentation.’

Here, the adjudication officer relied on Whelehan v Health Service Executive EDA 0923. In this case, the former employee claimed victimisation because documents were not disclosed to him. The Labour Court held that there must be misrepresentation of a material fact. The Court held that the employer was not under an obligation to disclose the documentation sought by the former employee. In A Bank v A Worker EDA 104, the Labour Court held that there was no misrepresentation in respect of a summary of a medical report and the complainant only learnt of ‘undisclosed facts’ after her complaint was submitted so their non-disclosure could not have caused the delay.

In cases where it was found that there was a misrepresentation, the Labour Court held in A Company v A Worker EDA 1027 that documentation stating that the claimant was ‘promoted’ misrepresented the position that he was not actually promoted. In the equal pay case of B.S. Levez v T.H. Jennings (Harlow Pools) Limited Case C-326/96, the CJEU held that misrepresentation occurred when the employer provided false information about the pay received by the comparator.

Findings in relation to this case

It is clear that this complaint pursuant to the Pensions Act was not made within six months of the complainant retiring from his long service with the respondent and its predecessor. An extension for reasonable cause would also not bring the claim within time. Since the complainant retired, retired officials of another local authority availed of the Industrial Relations Act to have overtime deemed reckonable for pension purposes. These cases predated the amendments introduced by the Industrial Relations (Amendment) Act, 2015; the scope of the Workplace Relations Commission / Labour Court is now narrower.

The complainant must show that the respondent misrepresented a material fact which caused him not to refer the complaint within time. In assessing whether misrepresentation occurred, I note that the respondent issued incongruous correspondence. It relied on letters sent in 2006 and 2010 that refer only to the Monday and Tuesday overtime to show that this was the only structured overtime. The complainant relies on the August 2010 correspondence, which refers only to the overtime on Wednesday, Thursday and Friday.

The complainant worked overtime five days a week; the dispute is whether this was all structured. It is striking that neither set of correspondence refers to the overtime worked on the other days. For example, why does not the August 2010 letter also mention the overtime the complainant was working on Monday and Tuesday, even to say that this will not be affected by the reduction in hours?

While this may be incongruous, it was an issue that was ‘live’ at the time the complainant retired. The complainant later sought to challenge this in the internal review process, culminating in the letter of the 18th January 2018. Here, the respondent confirms the position that it considers the Monday and Tuesday overtime to be structured overtime. This may or may not be correct, but the question at first instance is whether this is a misrepresentation of a material fact. Applying the above case law, it clearly is not. It is a statement of the respondent’s position, that, even if it was incorrect, did not misrepresent any material fact. Moreover, while the letter of the 18th January 2018 refers to an appeal to the Pensions Ombudsman, there is no evidence that the complainant availed of this option, or that his doing so delayed this complaint.

It follows that the complaint pursuant to the Pensions Act was not submitted within the statutory time period set out by the Act and nor was the complainant able to show, on the narrow grounds provided by the Act, that a misrepresentation occurred. It follows that this complaint does not succeed. I also note, however, that the Financial Services and Pensions Ombudsman has recently addressed cases with similar circumstances to this complaint, as stated in Digests of Legally Binding decisions (for example volumes 1 and 4).

I do not have jurisdiction to decide whether there was a breach of the principle of equal pension treatment as the complaint was not made within the limitation period provided by section 81 E of the Act and nor has the complainant shown that a misrepresentation occurred which delayed the making of the complaint.

Pensions Act / limitation period / misrepresentation

Anti-discrimination