Complainant

Respondent

Parties

Patricia  Malone

Trinity College Dublin

Representatives

  In person

 TCD Management

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00049759-001

19/04/2022

The complainant was employed by the respondent from August 2005, at the time of submitting the complaint to the Workplace Relations Commission she remained in employment. The complainant was employed as a Catering Assistant working 20 hours per week for which she was paid €320.93.

This complaint was received by the Workplace Relations Commission on 19th April 2022.

In October 2021 the catering staff of Trinity College Dublin were informed that a Trinity College Income Protection Plan and Voluntary Life Assurance Plan were to be introduced to all pension plans as it was already available to members of staff already in the Master Plan.

This was set up as auto enrolment and those members of staff who did not wish to become members would be able to opt out.

The Complainant wished to be included in these two plans and did not avail of the opt out option. She then noticed that there were no deductions being made from her wages.

The Complainant wrote to the Pensions Office in Trinity College on 9th November 2021 enquiring why her deductions for the plans were not being made. On 29th November the Complainant received a response stating that the rules of the two plans excluded does not include any employee aged 66 or above.

The Complainant then wrote to the Employee Relations Manager and received a reply which stated that after making all necessary enquiries that alignment with the state pension is standard across insurance companies who provide such services.

The Complainant then replied to the Employee Relations Manager stating that she felt she had been discriminated against. This letter was acknowledged and noted.

The Complainant feels that Trinity College Dublin could have made alternative arrangements to facilitate her and have failed to do so.

The Complainant was employed as a Catering Assistant with Trinity College Dublin from August 2005, initially on a number of fixed term contacts, eventually conferring contract of indefinite duration in 2010.

The Complainant recently retired on 30 September 2023.

In 2021, following discussion and engagement with our Trade Union Partners the University facilitated the introduction of a voluntary income protection and a life assurance scheme ( the Schemes) for eligible employees of Trinity College, obtaining a very competitive premium price for employees. Employees pay the premium; the employer does not contribute. There are currently 2,678 members in these Schemes.

Trinity College Dublin recognises the following Trade Unions for collective bargaining; SIPTU, Unite, IFUT, CONNECT, BATU referred to collectively as ‘The Unions’.

Research of best practice and what schemes were on offer in other organisations was undertaken. The aim of this research was to attain the best possible premium price for employees in order to keep the costs for them at a minimum.

The rates secured were 0.17% of gross salary for Life Assurance and 0.72% of gross salary for Income Protection.

The offer from the insurers with the premium costs set the eligibility for membership of the Group Schemes, which is that you must be:

A. Under age 66 and

B. Employed by Trinity College Dublin and

C. Working 8 or more hours per week and

D. Employed on a: • Permanent basis or • Contract of indefinite duration or • Fixed‐term/Specific Purpose, contract of at least 12 months’ duration and

 E. Not a member of closed scheme (University of Dublin, Trinity College GP024200) and

F. Actively at work on the schemes commencement date (01 November 2021)

As is the norm for such schemes, the age limit on membership is generally set at 65, with some schemes linked to the state pension age. The Insurers quotes were returned with an age limit eligibility of 66, the current state pension age.

 The Schemes also provided that cover ceases for employees who opt to remain at work following their state pension age of 66

Setting the age limit for membership to the state pension age was objectively and reasonably justified by a legitimate aim to achieve the best premium costs for employees as the cost to include employees 66 years of age and older would have cost in the region of 5‐6% of gross salary.

Such a price would not have been fair to the circa 3,000 employees eligible to join who were under 66 years of age.

At time of introduction, 22 employees were deemed ineligible for entry to the scheme as they were 66 years of age or older. The Complainant was one of these employees.

On 1st November 2021, the Schemes were introduced as auto‐enrolment schemes, with eligible employees having to opt‐out if they did not wish to avail of both or one of the Schemes. Otherwise, they were automatically enrolled.  

The 22 employees who were 66 or older were not enrolled.

In 2021, leading up to the launch of the schemes, on‐line information sessions were held for employees. Also, an information booklet was made available, along with a dedicated website containing relevant information for prospective scheme members.

As there are a number of employees in Trinity College who do not access email and/or internet in the course of their day‐to‐day duties and to ensure inclusivity, information leaflets along with the opt‐out forms were printed and distributed among this group. The Complainant is among this group.

The Respondent emailed the relevant Managers for this group of employees to seek their assistance to ensure a wide circulation of the information.

On 09 November 2021, the Complainant contacted the Trinity Pensions Unit in Human Resources to enquire why premium payments were not being deducted at source from her salary as she had not opted out of the Schemes. In response she was informed that the insurer only covers employees up to the age of 66 years. Once a person reaches this age they are no longer insured and as you have reached this age deductions were not made

Unhappy with the response from the Trinity Pensions Unit, on 09 December 2021 the Complainant escalated her concern to the Employee Relations team. In response she was advised that the alignment with the state old age pension age is standard across insurance companies who provide this cover to group schemes.  The Complainant responded to say that she felt this unacceptable and discriminates her, advising that she will have to escalate the matter.

In June 2022, the University received notification from the WRC of a complaint by the Complainant under the Employment Equality Act, 1998 citing that she was discriminated on the grounds of age.

Respondents position

Burden of Proof

It is well established that in case under the Employment Equality Acts that the burden of proof to establish prima facia case of discrimination rests with the Complainant. It is normal procedure that the Complainant would set out their case by way of a submission in advance of a hearing. At the time of writing, the Respondent has not received a submission from the Complainant.

Respondents Arguments

The Schemes were set up on a voluntary basis for employees to avail with no medical underwriting required if joined on the commencement date of 01 November 2021. The Schemes were for the benefit of over 3,000 employees as a whole. This was done with the engagement of our union partners.

The Respondent engaged a Broker to carry out extensive research on best practice for such schemes.  

The Complainant was one of 22 employees deemed ineligible at the commencement date due to them being 66 years of age or older.  The Respondent has not received any similar query or claim from any of the remaining 21 employees in this group.  

The Complainant was not singled out for discrimination on the grounds of age or any other of the nine grounds.

Setting the age limit for membership to the state pension age was objectively and reasonably justified by a legitimate aim to achieve the best premium costs for the 3,000 employees eligible to join the Schemes. The means of achieving this aim were appropriate and proportionate to serve the aim of ensuring the best premium costs for employees.

The College has done everything it could to provide the necessary information to all employees so that they could make an informed decision on membership, including printing information leaflets and booklet for a cohort of employees’ who do not access email in the course of their day to

Prior to the commencement of the scheme, the Complainant did not make any enquiries about her eligibility for entry to the schemes.  

The Equality (Miscellaneous Provisions) Act 2015 makes a number of significant amendments to the Employment Equality Act 1998 in the areas of retirement and age discrimination. The 2015 Act provides against discrimination of an employee’s total reward package under the nine grounds.

 The Voluntary Schemes in Trinity College do not form part of an employee’s reward package. Employees pay the premium in full.  

Differences in treatment because of age are not unlawful if it can be demonstrated that it is a proportionate means of meeting a legitimate aim.  

It is the Respondents position that accepting the Insurers quote of premium costs and conditions for eligibility including the age limit eligibility to the state pension age, currently 66, was the best option to attain the best price for employees and is proportionate to achieve that aim.  

The alternative would have been to place a disproportionate burden of the overwhelming majority of our staff as the premium would been in the region of 5‐ 6% rather than a total of 0.83%. An increase of over 4‐5% being placed on the entire eligible staff for the benefit of a group of 22.  

 The voluntary schemes are an optional benefit offered to employees by the Insurer facilitated by the Respondent.  

The employee pays a premium in exchange for the insurers guarantee of payment upon the point of an eligible claim.

Conclusion  

It is the respondent’s position that cover offered by including conditions for eligibility including the age limit to the state pension age, was the best option to attain the best price for employees and is objectively and reasonably justified by a legitimate aim to achieve the best premium costs for the 3,000 eligible employees. The means of achieving this aim were appropriate and proportionate to serve the aim of ensuring the best premium costs for employees.

In view of the foregoing, the Adjudication Officer is respectfully requested not to uphold Mrs Malone’s claim.   

Unlike all other forms of direct discrimination, different treatment on grounds of age can be objectively justified.

The representative of the Respondent has concluded as follows:

“It is the respondent’s position that cover offered by including conditions for eligibility including the age limit to the state pension age, was the best option to attain the best price for employees and is objectively and reasonably justified by a legitimate aim to achieve the best premium costs for the 3,000 eligible employees. The means of achieving this aim were appropriate and proportionate to serve the aim of ensuring the best premium costs for employees”.

I am unable to disagree with this argument. These type of clauses are common with insurance companies – they are objectively and reasonably justified by a legitimate aim, in this present case, that aim was to achieve the best possible premium for the 3,000 eligible employees.

I am unable to find in favour of the Complainant and therefore my decision is that the complaint as presented is not well- founded.

I am unable to find in favour of the Complainant and therefore my decision is that the complaint as presented is not well- founded.

Age discrimination.