Complainant

Respondent

Parties

 Eileen  O'Brien

Dun Laoghaire-Rathdown County Council

Representatives

  Self

Amanda Kane Local Government Management Agency (LGMA)

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-00056589-001

11/05/2023

The Complainant alleges that the condition that requires her to contribute to the Spouses and Children’s Scheme is discriminatory. She stated that the provision breached equality legislation.

The Complainant began working with the Council in 1999 and has paid about €12,000 in the scheme for this provision even though as a single woman without children it is not a benefit that could be availed of in her case. She currently pays €640 into the scheme.

The Respondent denies that any unfair or discriminatory treatment has occurred. The survivor benefits and associated contributions are embedded in the Single Public Service Pension Scheme. Members of this scheme are not also separate members of the Spouses and Children’s Scheme. Member contributions are compulsory and there are no exemptions available based on marital or family status. In certain circumstances where a member has in excess of 40 years’ service, she would be entitled to a refund in respect of the excess period only.

The Complainant is a clerical officer with the Council and commenced in July 1999 and has paid about €12,000 in the scheme for this provision even though as a single woman without children it is not a benefit that could be availed of in her case. She currently pays €640 into the scheme.

All members of the scheme are deducted 1.5% of their remuneration towards the Spouses’ and Children’s scheme which would provide a surviving spouse and any qualifying children with a pension entitlement on the death of the member.

All should be treated fairly and according to the principles of the Equal Status Act. Therefore, members without children should be refunded their contributions as was the case with the previous scheme or their benefit to be donated to a nominated charity.

The Complainant is a clerical officer with the Council and commenced in July 1999.

All members of the scheme are deducted 1.5% of their remuneration towards the Spouses’ and Children’s scheme which would provide a surviving spouse and any qualifying children with a pension entitlement on the death of the member.

The Respondent denies that any unfair or discriminatory treatment has occurred. The survivor benefits and associated contributions are embedded in the Single Public Service Pension Scheme. Members of this scheme are not also separate members of Spouses and Children’s Scheme. Member contributions are compulsory and there are no exemptions available based on marital or family status. In certain circumstances where a member has in excess of 40 years’ service, she would be entitled to a refund in respect of the excess period only.

I note in Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022 that the two slightly different legislative regimes do have different statutory definitions and obligations. While the Complainant refers to the Equal Status Act this should be understood to be the Employment Equality Act 1998 as amended. The complaint form also references the Pensions Act 1990 as amended and it is this Act that I apply to this complaint.

Employment Equality Act or Pensions Act?

13-170

It is important to emphasise that Ireland has two slightly different legislative regimes depending on whether a benefit payable at the end of an employment relationship is classified as an occupational benefit scheme or pay. Equal pay and equality is governed by the Employment Equality Acts 1998–2021 which expressly exclude pension rights.213 The Pensions Act 1990–2022 as amended covers what it terms “occupational benefits … other than remuneration to which sections 19 and 20 of the Employment Equality Acts 1998 apply.” There are small but significant differences between the legal provisions in the Employment Equality Acts and those in the Pensions Act. For example, the exceptions for discrimination on grounds of age, apart from the exception in relation to the use of actuarial calculations, are only permitted under the Pensions Act if they are objectively justifiable, whereas this additional hurdle is absent from the text of the Employment Equality Act.

13-171

However, the fault line between the two acts is not entirely clear. The CJEU has long determined that pensions fall within the definition of “pay” (a broad category of any consideration, whether in cash or kind, which an employee receives either directly or indirectly from the employer in respect of employment).214 The Pensions Act, quite unhelpfully, states that it covers occupational benefits in the form of pensions payable in respect of pensions on retirement, but also schemes or arrangements relating to sickness or invalidity, such as permanent health insurance, and schemes or arrangements relating to accidents, injuries or diseases. However, if the impugned treatment relates to the operation of the rules of an occupational scheme, this gives rise to a potential claim under the Pensions Acts, and not the Employment Equality Acts.215 On the other hand, if the treatment relates to the age at which an employee is required to retire, this relates to terms and conditions of employment and no jurisdiction arises under the Pensions Acts.216

13-172

This lack of clarity makes it difficult to decide whether a claim should be made under the Pensions Act or the Employment Equality Acts. In Kelly and Masterson v Chivers,217 the Equality Officer refused to consider a complaint in relation to pension rights. The complaint was that in a redundancy situation, those over 60 were obliged to “cash in” their pension and received statutory redundancy. Those under 60 were allowed to keep their pension within the Chivers Defined Benefit pension scheme or transfer it to another pension fund and received an ex gratia payment (an additional 60% of their statutory redundancy payment) as well as their statutory redundancy. The Equality Officer ruled that

“Section 8(6) of the Acts precludes me from examining the complainants’ treatment in relation to pensions rights as a complaint was not made under the Pensions Acts”.

If in doubt, it is probably best to submit the claim under both Acts and allow the WRC to determine as a preliminary issue which Act governs the complaint. This was the approach taken in Sean Grey v Local Government Computer Services Board,218 where a local government employee brought a claim for discrimination in the rules of an early retirement and redundancy scheme. The Equality Officer found that the claim under the Employment Equality Act was misconceived, but heard the case under the Pensions Act.

13-173

I also note that:

EU law

13-16

Pensions fall under equality law by virtue of the fact that they are deemed to be “pay” within the meaning of European law. EU law has long recognised that where the principle of equality or non-discrimination applies, a fundamental component of that principle is equal pay for equal work. Early jurisprudence of the CJEU held that occupational pensions were also pay and thus came under the equal pay for equal work rubric.17

I also note that:

Survivors’ benefits

13-78

In the decision of Ten Oever,115 the Court held that survivors’ pensions paid pursuant to an occupational pension scheme also constituted pay, even though the employee himself or herself did not benefit directly from it, as the benefit was an advantage deriving from the survivor’s spouse’s membership of the scheme and thus ultimately derives from the employment relationship between the deceased spouse and his employer.116 That case concerned a claim by Mr Ten Oever for the grant of a widower’s pension. His wife had been a member of an occupational pension scheme until her death; under the rules of the scheme, a survivor’s pension was paid to widows only. The Court ruled that males were also entitled to receive survivors’ pensions based on the entitlement of their deceased wives. Mr Ten Oever was thus awarded a full pension.

The nature of a group pension scheme is it provides the same benefits to all members subject to the rules of the scheme. Every member will not realise the same monetary benefit having regard to the very nature of the benefits provided as members mortality will vary. In turn not all members will have family status and or a civil status that will give rise to a death in service benefit where a spouse or a child will receive a benefit. The Complainant’s Civil Status and Family Status could change. Based on these changing circumstances and the rules of the scheme she may or may not be entitled to benefits that she contends that she can never avail of.

The Pensions Act 1990 as amended states:

66. Discriminatory grounds for the purposes of this Part.

(1) 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

(ii) that one is a woman and the other is a man and they have the same civil status or both have family status,

(in this Part referred to as 'the gender ground'),

(b) that they are of different civil status (in this Part referred to as 'the civil status ground'),

(c) that one has family status and the other does not (in this Part referred to as 'the family status ground'),

(d) that they are of different sexual orientation (in this Part referred to as 'the sexual orientation ground'),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Part referred to as 'the religion ground'),

(f) that, subject to subsection (3), they are of different ages (in this Part referred to as 'the age ground'),

(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'),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Part referred to as 'the ground of race'),

(i) that one is a member of the Traveller community and the other is not (in this Part referred to as 'the Traveller community ground').

(3) The age ground applies only in relation to a person who is above the maximum age in respect of which there is a requirement under any enactment that he attend school.

There is no difference in treatment based on the ground of Family Status or Civil Status as the benefit under the scheme is not being denied based on either ground. The Complainant is stating that the probability of realising a benefit is low; however, that same assessment also applies to members who have a different civil status to the Complainant and may apply to members who have family status as defined under the Act. The fact that a benefit is not realised does not mean that there is unequal treatment. If the conditions are met as provided under the rules of the scheme the Complainant may in the future realise a benefit that she believes she may not avail of; however, that is belief an assumption and not a fact.

Section 76 states:

76. Burden of proof.

(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.

(3) Where, in any proceedings as arising from a reference of a matter by the Board to the Director under section 85(1) of the Employment Equality Act 1998 as it applies to this Part, facts are established by or on behalf of the Board from which it may be reasonably inferred that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section "proceedings" means proceedings under this Part.

There are no facts before me that give rise to an inference that a breach of the principle of equal pension treatment arises based on family status and/or civil status. The Claimant’s proposition that a universal benefit may not be realised does not mean that there is discriminatory treatment and a breach of the principle of equal treatment. A member may die one year into retirement and another member may live to 90 years of age. A member may be single for most of their membership of the scheme and marry much later than the average age. There cannot be equality in terms of the value that each member derives from the scheme; however, there is equality and equal pension treatment to all members based on the rules of the scheme that apply equally to all and ensure that the interest of the common good is best protected and underpinned by the principle of equal pension treatment.

There are no facts before me that give rise to an inference that a breach of the principle of equal pension treatment arises based on family status and/or civil status. The Claimant’s proposition that a universal benefit may not be realised does not mean that there is discriminatory treatment and a breach of the principle of equal treatment. A member may die one year into retirement and another member may live to 90 years of age. A member may be single for most of their membership of the scheme and marry much later than the average age. There cannot be equality in terms of the value that each member derives from the scheme. However, there is equality and equal pension treatment to all members based on the rules of the scheme; that apply equally to all and ensure that the interest of the common good is best protected underpinned by the principle of equal pension treatment.

 On the facts the Complainant has not met the burden of proof where an inference arises that a breach of the principle of equal treatment may have occurred that would require that inference to be rebutted by the Respondent. As the burden of proof has not been established that a prima facie case has been made out of unequal pension treatment arising from the Complainant’s civil status and/or family status:

(b) that they are of different civil status (in this Part referred to as 'the civil status ground'),

(c) that one has family status and the other does not (in this Part referred to as 'the family status ground'),

I determine that no breach of the Act has occurred and dismiss the complaint.

The facts are the Complainant’s Civil Status/Family Status could change and if that changes and the rules as applied equally to all members relating to Death in Service or during Retirement would also apply to her.

 I dismiss the complaint and find that no breach of the principle of equal treatment has taken place.

Equal Pension Treatment