The Equality Tribunal
The Employment Equality Acts 2000-2008
& the Pensions Acts 1990-2008
Minister for Justice and Equality
(represented by Conor Dignam BL
Instructed by the Chief State Solicitor's Office)
File Reference: ES/2007/594-595
Date of Issue: 7th November 2011
Minister for Justice and Equality
(represented by Conor Dignam BL
Instructed by the Chief State Solicitor's Office)
Pension Acts 1990 - 2008, Rules of Occupational Benefit Scheme, Section 65(1)(b) - definition of occupational benefit scheme, Rules of Spouses' and Children's Scheme, Section 66(1) - discrimination and less favourable treatment, Section 66(2)(b) - marital status, Section 70 - principle of equal pension treatment, Section 76(1) - Burden of Proof.
Delegation under the Employment Equality Acts and the Pension Acts, 1998-2008
The complainant referred a complaint to the Director of the Equality Tribunal under the Pension Acts, 1998 to 2008 and the Employment Equality Acts on the gender ground on the 14th November 2007. On the 24th September 2010, in accordance with his powers under section 81J of the Pension Acts which apply the relevant provisions of the Employment Equality Acts to occupational benefit schemes, the Director delegated the case to me, Marian Duffy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under the Acts on which date my investigation commenced. Submissions were received from both parties. As required by the Acts and as part of my investigation, I proceeded to hearing on the on the 10th August 2011 and the final correspondence was received in the matter on the 2nd September 2011.
1.1 The dispute concerns a claim by the complainant that she was discriminated against by the above named respondent on the marital status ground in terms of Section 66(2)(b)(a) and in contravention of Section 70 of the Pensions Acts 1990 - 2008 in relation to the operation of An Garda Síochána Spouses' and Children's Contributory Pension Scheme. She also claims discrimination on the gender ground under the Employment Equality Acts.
2. Summary of the Complainant's
2.1 The complainant joined an Garda Síochána in 1991. On entering the employment she automatically became a member of an Garda Síochána Spouses' and Children's Pension Scheme. This scheme provides the surviving spouse and any qualifying children of a contributing member with an entitlement to a pension on the death of the member. Members of the scheme pay a contribution of 1.5% remuneration. The complainant submitted that she is not married and she does not intend to get married and she believes that the requirement to contribute to a pension scheme from which she will never benefit is discriminatory. The complainant said that after she joined the force as a trainee Garda in 1991 she signed a number of documents at that stage to allow deductions to be made from her pay. In 1993 after the completion of her probation she attempted to withdraw from an Garda Síochána Spouses' and Children's Pension Scheme, but when she contacted the respondent she was informed she could not withdraw from the scheme. She said that she was told that she would get all the money she had paid into the scheme back, if she was single at the time of her retirement. She said that she then considered the scheme as a saving scheme because believed that she would get all her contributions back on retirement if she remained single and she now understands this is not the case. She said that if she joined the Gardaí before 1984 she would have got back all her contributions to the scheme on retirement if she had remained single. She said that by the time she retires she will have contributed up to €30,000 to a scheme from which she will never benefit. She submits that she is being treated less favourably than a married person because as a single person she will have no survivors who qualify for benefit under the scheme and she will have paid a considerable sum of money into the scheme which will not be returned to her when she retires as a single person.
3. Summary of the Respondent's Case.
3.1 The respondent submitted that the original scheme which was based on a scheme which operated in the Civil Service since 1969 was introduced to an Garda Síochána on 1st January 1972 and it was called the Garda Síochána Spouses' and Children's Pension Scheme. Membership of this scheme was compulsory for male members of an Garda Síochána who joined on or after that date. Male Member serving before the 1st of January had an option to join and female member were not offered membership. Members of the scheme pay a contribution of 1.5% of pay. The scheme entitled spouses and qualifying children of a contributing member to a pension should they survive the member. Members of this scheme, who are single at the time of retirement, are refunded their contributions. The scheme was put on a statutory basis in 1981 under Garda Síochána Pensions Order, 1981, S.I. No. 199 of 1981. On 1st July 1984, following an agreed report from the Garda Conciliation Council, the scheme was amended and female members of An Garda Síochána, serving before that date were offered membership of the scheme on a voluntary basis and a female joining the force after that date membership was compulsory for her. Benefits and conditions were now the same for both male and female members of the force.
3.2 A revised Garda Síochána Spouses' and Children's Pension Scheme, which was based on a revised scheme for the Civil Service (Circular 16/1984) and following a recommendation from the Garda Conciliation Council, was introduced in an Garda Síochána on the 1st of November 1984 by a Circular letter from the Department of Justice dated 23rd August 1984. The revised scheme was compulsory for any member joining the force after that date. Members already in the force were offered membership on a voluntary basis. This revised scheme is a separate scheme from the original scheme and provided an extended range of benefits to members to include benefit cover for (i) the spouse and children of a member who marries after retirement, (ii) children of members born outside marriage and step-children of the member, (iii) children conceived after a members retirement, and (iv) children of a member whose spouse died before his or her membership began. Contributions to the revised scheme remained the same at 1.5% of pay and arising from the additional benefits now being provided the full refund of contributions for members who were single on retirement as provided for in the original scheme was discontinued as was the partial refund to certain members whose spouses were deceased at the time of retirement. The original scheme was no longer open to new entrants to the force as and from the 1st November 1984.
3.3 The respondent submitted that the complainant became a member of an Garda Síochána on the 11th of February 1993 and membership of the Revised Spouses' and Children's Pension Scheme was compulsory for her. Benefits and conditions that apply to the scheme are the same for both male and female members of the force and similar pension schemes with similar benefits and conditions apply throughout the Public Service.
4. Conclusions of the Equality Officer
4.1 In making my decision, I have taken into account all submissions both written and oral from both parties. The first matter I have to decide is which Act applies to the complaint. The complainant's referred a complaint of discriminatory treatment on the gender ground the Employment Equality Acts and marital status ground under the Pension Acts. The respondent submitted that the complaint is one which should be dealt by the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act, 2004. The Act provides at Section 65(1) inter alia that: "occupational benefit scheme' means --
(b) in relation to employed persons, any occupational pension scheme or arrangement which is comprised in one or more instruments or agreements and which provides, or is capable of providing, occupational benefits in relation to employed persons in any description of employment within the State,
"'occupational benefits' means benefits (other than remuneration to which sections 19 and 29 of the Employment Equality Act 1998 apply), in the form of pensions, payable in cash or in kind in respect of --
(a) termination of service,
(b) retirement, old age or death,"
Remuneration in the Employment Equality Acts is defined as:
''remuneration'', in relation to an employee, does not include pension
rights but, subject to that, includes any consideration, whether
in cash or in kind, which the employee receives, directly or indirectly,
from the employer in respect of the employment;"
I am satisfied that the matters complained about in the case herein concerns the rules of a pension scheme. Having considered the respondent's submission and taking into account the provisions of Section 65(1)(b) of the Pensions Acts and the definition of "remuneration" under the Equality Acts which excludes pension rights, I am satisfied an Garda Síochána Spouses' and Children's Pension Scheme is an occupational benefit scheme and comes within the scope of the Pensions Acts and therefore I have no jurisdiction to deal with the gender complaint under the Equality Acts.
4.3 The next matter I have to consider is whether the complainant was discriminated against on the marital status ground in relation to an Garda Síochána Spouses' and Children's Pension Scheme. The Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act, 2004 provides at Section 66 --
"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') ........
(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Part) are -- ....................
(b) that they are of different marital status (in this Part referred to as 'the marital status ground'),
Section 70 states: "(1) Subject to this Part, the principle of equal pension treatment is that there shall be no discrimination on any of the discriminatory grounds (including, subject to section 68(2), indirect discrimination) in respect of any rule of a scheme."
The burden of proof under section 76 -- (1) provides:
"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."
4.4 The complaint submitted that she is being unlawfully discriminated against on the marital status ground in relation to having to join and contribute to an Garda Síochána Spouses' and Children's Pension Scheme, a scheme she says she will derive no benefit from because she is unmarried and she does not intend to get married. She further submits that it is discriminatory treatment not to refund the contributions she has made to the scheme on retirement as happens for single members of the original scheme. The respondents case is that they are two different schemes and the revised Scheme introduced in November 1984 provides enhanced benefits and it now covers spouses and children on the death of a member who may have got married after retirement or who may have had qualifying children within or outside marriage. In order to meet the additional costs of the wider definition of beneficiaries in this scheme in comparison to the original scheme, the contribution refund arrangements were made more restrictive.
4.5 The respondent submitted that under the original scheme a single person on retirement was refunded their contributions, but a married person and in particular women who could not join the scheme prior to 1984, are usually short of 40 years contributions at the time of retirement and that shortfall has to be deducted from their lump sum. In relation to the revised scheme, single members no longer qualify for a refund of contributions but in the event of a shortfall in contributions to the scheme a married person has a deduction of the shortfall made from the lump sum and a single person's contributions cease on retirement even though that person may get married or have children post retirement and in that situation the member's new spouse and qualifying children continues to be covered by the scheme in the event of the death of the member. The respondent submitted that the complainant has failed to establish less favourable treatment on the marital status ground in that the comparator she refers to in the original scheme is a single person and is treated more favourably than her (a single person in the original scheme gets a refund of contributions on retirement).
4.6 The matter I have to consider is whether the respondent in amending the rules of the pension scheme which amongst other things discontinued the refund of contributions to single employees on retirement as had been the practice in the original scheme for members who joined before to 1st November 1984 is discriminatory on the marital status ground. I note that the revised scheme of November 1984 applied to all new recruits regardless of their gender or marital status. The complainant is seeking to compare her situation to that of a single person who joined the original scheme prior to November 1984 and is single at retirement.
Section 66 (1) of the Act provides that discrimination shall be taken to occur where a person is treated else favourably than another person, is, has been or would be treated in a comparable situation on any of the discriminatory grounds. The discriminatory ground under which the complainant has taken her case is the marital status ground. Marital status is defined in Section 65 (1) of the Act as 'single, married, separated, divorced or widowed'. Therefore, as a single person, the complainant cannot compare herself with someone who is single in order to determine whether she is receiving equal pension treatment with that person within an occupational benefit scheme governed by the Act. Therefore the complainant cannot establish that she was treated less favourably than another person with a different marital was treated or would be treated in similar circumstances. The complainant is being treated the same as every other member of the force recruited since 1984 as regards the refund of contributions and she is also treated the same as married members of the force who are members of the original scheme at the time of retirement as they do not get a refund of contributions on retirement. Accordingly the complainant has failed to establish a prima facie case of discriminatory treatment in relation to this aspect of her complaint.
4.7 I must now consider whether it is discriminatory on the marital status ground for the respondent to change the Spouses' and Children's Contributory Pension Scheme and introduced a mandatory requirement that all new entrants must join the scheme and contribute 1.5% of pay in circumstances where the complainant submits that the scheme is of no benefit to her. As I have stated above the complainant has been treated in the same way as all other members of the scheme in that all new recruits to an Garda Síochána since November 1984 are required to join the scheme regardless of their marital status. Accordingly the complainant has failed to establish a prima facie case of discriminatory treatment on the marital status ground in relation to the rules of the contributory survivor pension scheme.
4.8 I note that Section 72 (2) of the Act provides:
(2) It shall not constitute a breach of the principle of equal pension treatment on the marital or family status ground for a scheme to provide more favourable occupational benefits where those more favourable benefits are in respect of any person in respect of whom, under the rules of the scheme, a benefit is payable on the death of the member, provided that this does not result in a breach of the said principle on the gender ground.
(3) It shall not constitute a breach of the principle of equal pension treatment on the marital status or sexual orientation ground to provide more favourable occupational benefits to a deceased member's widow or widower provided that it does not result in a breach of the said principle on the gender ground.
Therefore it is not a breach of the principle of equal pension treatment on the marital status ground for the surviving spouse or qualifying children of a deceased member to receive more favourable benefits, provided that it is not discriminatory on the gender ground, that is, a widower would be entitled to the same benefits as a widow and vice versa. I find that Section 72(2) above is a defence to the complainant's argument that she is being discriminated against on the marital status ground in relation to the rules of the scheme. I find that the rules contained in an Garda Síochána Spouses' and Children's Pension Scheme are not unlawful and it is not discriminatory treatment on the marital status ground for the respondent to provide more favourable benefits to a married person. Therefore, I find that the respondent is not discriminating against the complainant regarding the rules (the mandatory requirement to join and contribute to the scheme) of its survivor benefit scheme in terms of Section 66 (2) (b) and in contravention of Section 70 of the Act.
5.1 Having investigated the above complaint I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts which is in accordance with section 81J(2) of the Pensions Acts:
(i) The complainant has failed to establish a prima facie case of discrimination on the marital status ground in terms of equal pension treatment and her claim fails in that regard;
(ii) With regard to the complaint of discriminatory treatment on the gender ground under the Employment Equality Acts, I have no jurisdiction in the matter.
7th November 2011