Complainant

Respondent

Parties

Seamus  Finnan

Lyons Financial Services

Complainant

Respondent

Anonymised Parties

Representatives

Brian Rennick Solicitor,

Rennick Solicitors.

Vincent Lyons, Company Director.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00059443-001

17/10/2023

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin.

In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

It should also be noted that, in line with the Workplace Relations (Miscellaneous Provisions) Act, 2021, the Complainant and the Respondent witnesses were all agreeable to giving a formal affirmation that all evidence provided would be truthful. The giving of false statements or evidence is an offence.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 17th of October 2023.

The Complainant was not represented and made his own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth. In advance of the hearing the Complainant had set out his case through the provision of certain documents and correspondence and in the statement which he had attached to his original workplace relations complaint form. The Complainant additionally provided me with some further documents in the course of the hearing, which I copied to the other side. No objection was raised to any of the materials relied upon by the Complainant in making his case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that he was discriminated against when his income protection ceased when the Complainant turned 67 years of age.

Where it became necessary, I explained how the Adjudication process operated with particular emphasis placed on the burden of proof which had to be attained by the Complainant in the first instance, as well as in connection with the jurisdictional limits imposed on the Adjudication process.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent had representation at this hearing. The Respondent relied on the written submissions dated May 2024 which was presented to me by the Co-Respondent in an associated case.  No objection was raised in connection with any of the documentary evidence relied upon by the Respondent and it seems both sides were aware of one another’s respective positions. All evidence was heard following an Affirmation.

The Respondent asserts that it cannot be considered a party in this matter as it simply gave advice to the complainant’s Union when the Union was entering into a commercial arrangement. This respondent rejects that there has been any Discriminatory treatment of the Complainant by the Respondent.

The Respondent has additionally raised the issue of my jurisdiction in circumstances where the Respondent asserts that the Complainant is out of time.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered the evidence adduced by the parties herein. I allowed the Complainant to elaborate on his position so as to better understand where he was coming from. The Complainant was a civil servant employed by the Department of Social Protection from 2006 until September of 2022. While employed by the Civil Service, the Complainant, on joining his trade union, became a member of the Fórsa Clerical Grades Income Protection Plan (otherwise known as the Group Contributory Income Protection Plan) (Scheme Number 718790) (hereafter “the Plan”).

The Plan was initially underwritten by New Ireland Assurance plc and was later assumed by the Respondent Aviva Lifa and Pensions in its capacity as underwriter. In these circumstances Aviva has also (in a separate file) been named as a Respondent and Service provider for the purpose of the Equal Status Act. The plan was an income protection plan of which the Complainant became a member following negotiations on his behalf by his trade union (Forsa). I understand that the income protection plan was initially brokered by Lyons Financial Services (the Respondent herein), whose business has since been taken over by Cornmarket Group Financial Services Ltd. Lyons Financial Services were, as I understand it, engaged by Forsa to negotiate on its behalf. I have had sight the Service agreement as between Lyons Financial Services and Forsa which was made available and opened to me in the course of the hearing and it has been put to me that Lyons Financial simply provided financial advice and information to Forsa on any arrangement being entered into with an income protection provider. This certainly appears to be evidenced by the Forsa (Civil Public and Service Union) Agreement entered into with Lyons in April of 2018. It is noted that the Complainant as well as the claim against Lyons the complainant has brought a separate claim against Aviva  (ADJ 48898)

In basic terms, the Plan entailed the payment of benefits (identified as “Disability Benefits” and “Proportionate Benefits”) to members in exchange for the payment of premia. The Respondent witness Mr. H explained to me that once the in-house Employer sickness scheme started to taper off after thirteen weeks (of certified sick leave), the Income Protection Plan supplemented the pre-sickness income. Ultimately Aviva could be paying out up to by up to 75% of an individual’s income. 

What is noteworthy is the fact that Fórsa (who was not a party to these proceedings, or any proceedings) is identified as the Policy Owner.

Most importantly from the Complainant’s point of view is that the “Ceasing Age”, defined as “the maximum age at which a member shall be entitled to remain as a member of the Plan”, is given as “67 years for members joining after 06/04/2004; 65 years for all other members”, and that the Plan has been issued on the basis of the Proposal of the Policy Owner, which Proposal is later defined as “the Proposal signed and dated on behalf of the Policy Owner”. I would have to accept the Respondent proposition that, at the very least, it is curious that Forsa is not a party given that it was a signatory to the arrangement.

As I understand it, the Complainant had had health issues in the course of his employment. By 2020 the Complainant was certainly in receipt of his full income protection entitlements as provided for under the Plan. Payments were being paid directly by Aviva. At this atage Lyons was out of the picture. The Complainant was due to turn 67 on the 9th of September 2022. Pursuant to it’s arrangement with Forsa, on the 4th of August 2022 the Respondent Known as Aviva wrote directly to the Complainant indicating that from his 67th Birthday on the 9th of September 2022 the Complainant could no longer receive benefit under the terms of the Income protection scheme. I understand that from the date of the Complainant’s 67th Birthday the Complainant would be in receipt of his pension though he explained in his evidence that this was less than what he had been receiving under income protection.

The Complainant has submitted that the Respondent herein failed to take into account the fact that a change in Government policy which predated 2022 allowed people to work beyond the age of 67. The fact that the Income Protection Policy was not updated in order to align with new government ruling is, in the Complainant’s submission, a clear case of “Ageism through neglect”.

It was in these circumstances that the Complainant brought a complaint under the Equal Status Act of 2000 on the grounds of age discrimination. It is important to note that the complaint form was lodged with the Workplace Relations Commission on the 17th of October 2023, which was some thirteen months after the Complainant’s 67th Birthday on the 9th of September 2022.

I accept, as a matter of fact, that if there is an issue of age discrimination then that issue came into focus on the 9th of September 2022. The prohibited conduct being complained of occurred on the 9th of September 2022 as this was the date on which the Complainant was deemed to be no longer entitled to receive income protection payments. This is important because time starts to run from this date. In legal terms, the cognizable period (that is the period within the jurisdiction of the WRC) begins to run form the 9th of September 2022. As previously noted, the period is limited to six months. This may be extended to twelve months where reasonable cause is demonstrated.

The Respondent has outlined its position as follows:

It is clear from the correspondence in this matter, and from the Complainant’s WRC Complaint Form and attendant materials, that the Complainant has posited the 9th of September 2022 as the date on which he suffered discrimination. There is no suggestion, or indeed evidence, of an act of discrimination having occurred after that date. His complaint having been lodged with the WRC on the 17th of October 2023, it appears that this forum does not have the jurisdiction to adjudicate thereon.

In this regard it should be noted that s. 21(6) of the ESA, as amended by s. 54 of the Equality Act 2004, recites that:

(a) Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director [of the Equality Tribunal, whose functions have since been transferred to the WRC] may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

The Respondent goes on to state that the statutory provision, and its effect upon claims lodged more than twelve months after the alleged discrimination, have been summarised usefully in the recent matter of:

A Customer v A Financial Company (ADJ-00038797). Here, the relevant act of discrimination was alleged to have occurred in October 2019, whereas the complaint was lodged with the WRC on the 19th of April 2022. Agreeing with the respondent that the complaint was statute-barred, the Adjudication Officer stated as follows:

“Section 21( 6) of the Acts contains a statutory time limit of 6 months within which a complainant may refer a claim for redress. That time limit may be extended to a period not exceeding 12 months for reasonable cause shown. The complainant in his evidence confirmed that he did not complain about the first transaction of October 2019 until January 2022. I am satisfied that the complainant did not submit a complaint within the statutory time limit. The statutory time limit may not be extended beyond 12 months from the date of the alleged prohibited conduct. I am satisfied the complainant has failed to comply with section 21(6)… In those circumstances I do not have jurisdiction to investigate or adjudicate on the complaint about the October 2019 transaction. “

The Complainant in his evidence has highlighted certain regrettable health issues from which he has suffered and which, he appears to contend, ought to be taken into account in extending the time within which his complaint may be heard. Unfortunately, whilst these are factors which I might have taken into account if I was extending time from six months to twelve months due to reasonable cause, I have no leeway beyond the expiration of twelve months. As the Respondent has put it in its submission:

In circumstances, however, where more than twelve months have passed since the date of alleged discrimination, the Complainant’s arguments in that regard do not, and cannot, endow the WRC with the jurisdiction to deal with the complaint.

The Complainant has also suggested that others were to blame for his delay. These others included the Financial Services Ombudsman, Aviva, Cornmarket and Lyons. I cannot speak to the correctness of the many and varied assertions made by the Complainant in this regard. At best these arguments may have had merit had the Complainant been seeking to extend time from six months to twelve months by demonstrating reasonable cause. However, such arguments cannot create an ongoing jurisdiction where the jurisdiction has expired by the passage of time. A complaint brought to the attention of the WRC after twelve months simply cannot be entertained.

Whilst I am always conscious of the fact that the Equal Status Act is described as a Remedial Act and as such per O’Malley J in  G  -v-  The Department of Social Welfare [2015] IEHC 419  “…it is intended to cover a broad range of human life and activity, and that it’s overall purpose is to reduce the social wrong of discrimination based on improper considerations. Having regard to the principle applicable to remedial statutes, it should be construed widely and liberally.”

Despite this sentiment I cannot create jurisdiction where I have none.

By way of completion, I would state that a misunderstanding or ignorance on the part of the Complainant as to the imperative of getting a complaint lodged does not amount to a misrepresentation on the part of the Respondent herein and, to be fair, that argument has not been made. I accept therefore that s. 21(6)(7) of the ESA, as inserted by s. 54 of the Equality Act 2004 has no relevance.

It is regrettable that the Complainant found he had not the finances to discuss this matter with a Solicitor nor the impetus to approach a body such as Citizen Information. 

I further note thatSections 8 and 9 of the Employment Equality Act 1998 have no relevance herein. These sections provide those collective agreements and/or Employment Regulation Orders and/or Registered Employment Agreements may be deemed null and void where:

(a)    They give rise to discrimination in relation to access to employment, conditions of employment, training and experience within employment, promotion, re-grading or classification of posts.

(b)    They contain provisions in which differences in rates of remuneration are based on any of the grounds of discrimination.

(c)     Provisions therein conflict with an equal remuneration term in a person’s Contract of Employment.

A person who is affected by a collective agreement (being a person that is an employee whose remuneration or whose conditions of employment are, in whole or in part, governed by the agreement) and who considers the said agreement to be null and void may refer the question of that agreement to the Director General of the Workplace Relations Commission as a Complainant (per Section 86 if the Employment Equality Act 1998).

I have some sympathy for the complainant and can clearly see the logic of his argument (as he perceives it). Whilst (by reason of the expiration of twelve months) I do not have the jurisdiction to make a finding either way, it seems to me that the income protection Plan is a legal contract which is carefully and credibly negotiated by Forsa and the Underwriter based on what monthly/weekly annual premiums the Forsa Members can afford to pay. There has to be a cut-off date and the date selected may well be capable of being objectively justified. If Forsa sought to increase the protection date to 70 it would have to get consensus amongst its members to meet the increased payments which would result in this increased protection age. For all sorts of reasons this might be resisted or rejected. The expense, as I understand it from Mr. H, could be huge. 

I understand that at a recent gathering of the Forsa national Executive Committee a Motion was put forward to increase the age covered by salary protection to the age of 70. I do not know whether this gained traction and in event Forsa are not before me to elaborate on this issue.

I should also note that the Complainant has also failed to initiate his obligation under Section 21 of the Equal Status Act 2000 -2015. That Section imposes an obligation on the Complainant to notify the Respondent (in Writing) of the allegation of prohibited conduct within two months of the last instance of that prohibited conduct having occurred. The Respondent should be notified of the nature of the allegation being made, seek information, and indicate what the Complainant’s intentions are if not satisfied with any response received.

If the Complaint concerning the prohibited conduct is not brought within two months, the time limit can be extended to four months for reasonable cause.

Exceptionally, a full dispensation can be given where it is considered fair and reasonable neither of these time limits will apply pursuant to Section 21 (3)(a) (ii). However, this is all a non-issue as the Complainant’s complaint has failed at the first hurdle of having the complaint lodged within the cognizable period.

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00059443-001 - the Complainant’s complaint fails in circumstances where the complaint was lodged outside of the time limits allowed under the Equal Status Act of 2000.