Pensions Acts 1990 - 2008
Ms Phyllis Doyle
(Represented by Mr Conor Power B.L., instructed by Ms Moya de Paor, Northside Community Law Centre)
Jury’s Doyle Hotel
(Represented by Mr Peter Flood, IBEC)
The case concerns a claim by Ms Phyllis Doyle that Jury’s Doyle Hotels indirectly discriminated against her on the grounds of gender and age contrary to Section 66(2) of the Pensions Acts 1990 to 2008, in not giving her access to the respondent’s pension scheme pursuant to S. 70 of the Acts.
The complainant referred a complaint under Pensions Acts 1990 to 2008 to the Director of the Equality Tribunal on 3 May 2005. On 13 August 2007 the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under S. 81 of the Pension Acts. On this date my investigation commenced. As part of my investigation, I proceeded to hold a joint hearing of the case on 26 March 2008. A submission was received from the complainant on 16 January 2007. A submission was received from the respondent on 26 November 2007. Additional evidence was requested from the parties at the hearing and received on 12 May 2008 from the respondent and on 19 May 2008 from the complainant.
Summary of the Complainant’s Written Submission
The complainant submits that she commenced employment with the respondent in September 1975 as a member of the banqueting staff in the respondent’s Burlington Hotel, together with a group of mainly female colleagues on the same duties. Her hours varied between 18 and 40 hours per week. After some time, the complainant and other members of the group were described by the respondent as “permanent casual staff”.
In or around 1995, the complainant enquired about joining the Jury’s Doyle Hotel Group pension scheme. She was told that since she was not a permanent full-time employee she could not join the scheme. Her colleagues on the banqueting staff group were similarly advised. The complainant was permitted to the join the respondent’s scheme for Additional Voluntary Contributions, which she did in 2002.
In or around 2000, the complainant enquired again about joining the pension scheme and was told that she could join, except that she was over 50 at this stage and therefore excluded from the scheme on ground of her age, as 50 was the cut off stage beyond which employees were not allowed to join. At this time, there was one woman among the group of banqueting staff who was under 50 years of age, and who subsequently joined the scheme.
With regard to discrimination on the ground of gender, the complainant submits that she was indirectly discriminated against in that the group of permanent casual banqueting staff of which she was a part, was predominantly female. She submits that the apparently neutral provision that only full-time staff could join the scheme put the women in the banqueting staff group at a particular disadvantage.
With regard to her complaint of discrimination on the ground of age, the complainant submits that the refusal to admit her to the scheme in 2000, because she was over 50 years of age, is not saved by the exception contained in S. 72 of the Acts. She submits that this exception is only applicable where the setting of a qualifying age limit does not result in a breach of the principle of equal treatment on the gender ground. The complainant submits that, in her case, because of the indirectly gender discriminatory effect of the exclusion of part-time and casual employees the application of an age limit years later has a disproportionate effect on the cohort of excluded workers, who are disproportionately women.
Summary of the Respondent’s Written Submission
The respondent denies discriminating against the complainant in denying her access to the pension scheme on the ground of either gender or age.
In particular, the respondent submits that, in 1995, when the complainant first made enquiries about joining the scheme and was rejected because she was not a permanent full-time employee, 58.5% of male staff were employed in a casual capacity, and 68.8% of female staff. In absolute numbers, there were 230 men and 307 women employed in a casual capacity at the hotel at the time, compared to 163 men and 139 women who were permanent employees. The respondent submits that this difference is not substantial enough to support a complaint of indirect discrimination.
With regard to the complainant’s complaint of age discrimination, the respondent submits that S. 72(1) of the Acts permits employers to fix an age or a period of qualifying service as a condition or criteria for admission into a scheme, where, in the context of the relevant employment, to do so is appropriate and necessary by reference to a legitimate objective of the employer, provided that this does not result in a breach of equal pension treatment on the gender ground. The respondent submits that the principle of equal treatment on the gender ground is not breached by limiting entry to the scheme to applicants under the age of 50.
Conclusions of the Equality Officer
The issue for decision in this case is whether the complainant was indirectly discriminated against on the ground of gender or age in access to the respondent’s pension scheme.
Indirect discrimination is defined in S. 68 of the Pensions Act 1990, as amended by the Social Welfare (Miscellaneous Provisions) Act 2004, as “an apparently neutral rule of the scheme concerned puts persons […] who differ in a respect mentioned in section 66(2) at a particular disadvantage in respect of any of the discriminatory grounds compared with other persons, being members or prospective members of the scheme […] unless the rule is objectively justified and the means of achieving that aim are appropriate and necessary. [Emphasis added]
(i) in respect of which the proportion of persons of the other sex able to comply with such requirement or condition is substantially higher than the proportion of persons of the first mentioned sex so able, […]
Two issues therefore arise in determining whether the complainant was subjected to indirect discrimination on grounds of her gender: (a) which group of employees constitutes her comparator group? (b) What is a “particular disadvantage”? I propose to deal with each of these in turn.
With regard to identifying the complainant’s comparator group, the representative of the complainant submitted that the complainant’s comparator group should be the casual ballroom waiting staff. The representative of the respondent submitted that it should be all part-time staff employed by the respondent at the material time. I am satisfied that the correct comparator group are all permanent part-time employees of the respondent at the material time, since all of these workers were barred from joining the pension scheme. I am basing this on the finding of the European Court of Justice in the case of Bilka Kaufhaus v. Karin Weber von Hartz [ECJ 61984J0170, 1986], where the court held that“Article 119 of the EEC Treaty is infringed by a department store company which excludes part-time employees from its occupational pension scheme, where that exclusion affects a far greater number of women than men.”
There was common case between the parties as to the composition of the respondent’s permanent part-time workforce at the material time. These workers were 230 men and 307 women in 1995. In percentage points, 42.8% of part-time workers were male and 57.2% were female, a differential of 14.4 percentage points. Permanent part-time workers were deployed in all areas of the hotel, including administration. The next question which arises is, therefore, whether this differential can be said to represent a “particular disadvantage” for the complainant.
I find that that the differential of 14 percentage points does not establish a particular disadvantage for the complainant. I find this to be so because it takes only a relatively small number of roles (approximately 38 out of a part-time workforce of 537, or 7%) to be staffed by men instead of women to achieve parity of genders within the respondent’s part-time workforce. This could easily happen within normal staffing fluctuations, especially considering the fact that it is common case that permanent part-time staff was deployed within all areas of the hotel’s operations. While the rules with regard to access to the respondent’s pension scheme might therefore have disadvantaged part-time workers as a group, it cannot be said that female part-time workers were put at a particular disadvantage based on their gender.
Therefore, I find that the complainant has not established a prima facie case of discrimination on the ground of gender with regard to access to the respondent’s pension scheme pursuant to her application to join same in 1995.
I now turn to the complainant’s complaint of discrimination on the ground of age, with regard to her 2000 application to join the pension scheme. At that point in time, the respondent admitted part-time workers into the scheme, but the complainant was rejected because she was over 50 years of age, which was then the maximum age for joining the scheme. S. 72(1) of the Acts permits pension schemes to fix an age or a period of qualifying service as a condition or criteria for admission into a scheme, where, in the context of the relevant employment, to do so is appropriate and necessary by reference to a legitimate objective of the employer, provided that this does not result in a breach of equal pension treatment on the gender ground.
The complainant submitted that this rejection should be considered in conjunction with her earlier rejection in 1995, and that since this rejection happened on the gender ground, it should come within the saver provision of S. 72(1).
I do not find this argument convincing. I do not think that this kind of alleged causality is based on a correct interpretation of the meaning of the section. Rather, it would appear that the provision is designed to address scenarios such as in the Bilka-Kaufhaus case, cited above, where employees had to have 15 years of full-time service to be able to enjoy the benefits of the appellant’s pension scheme, a condition which was much harder to fulfil for female employees than it was for male employees.
With regard to the case on hand, I find the fact that the complainant was over 50 years of age by the time the respondent, in compliance with the Protection of Employees (Part-Time Work) Act 2001, admitted its part-time workers into the scheme, to be coincidental, and that the complainant has not established a prima facie case of discrimination in access to the respondent’s pension scheme on the ground of age.
Based on all of the foregoing, and pursuant to S. 81H of the Acts, I find that
(i) The respondent did not discriminate against the complainant on the ground of gender or age pursuant to Section 66(2) of the Pension Acts 1990 to 2008, in not giving her access to the respondent’s pension scheme pursuant to S. 70 of the Acts.
19 January 2009