EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2012-136
(Represented by Tiernan Lowey B.L. instructed by
Crimmins Howard Solicitors)
Genworth Financial UK Holdings Limited
(Represented by Matheson Ormsby Prentice Solicitors)
File reference: EE/2009/914
Date of issue: 23 October 2012
HEADNOTES: Employment Equality Acts - Sections 6, 29 & 74 - Age - Access to Employment - Conditions of Employment - Equal Pay - Victimisation
1.1. This dispute concerns a claim by Ms Patricia Stapleton that she was discriminated against by Genworth Financial UK Holdings Limited in relation to access to employment and conditions of employment contrary to section 8 of the Employment Equality Acts, that she was victimised contrary to section 74 of the Acts and that she performs "like work", in terms of section 7 of the Employment Equality Acts with a named comparator and is entitled to equal remuneration in accordance with section 19 of the Acts on the grounds of age contrary to section 6 of the Acts.
1.2. The complainant referred her claim to the Director of the Equality Tribunal on 10 December 2009 under the Acts. On 13 March 2012, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79 (1) of the Acts and as part of my investigation I proceeded to a hearing on 11 July 2012 and final information was received on 27 July 2012.
2. COMPLAINANT'S SUBMISSION
2.1. The complainant started working for the respondent in November 1997 when she was aged 55. She submits at the time she started she was verbally assured she would not have to retire at 65 and this was one of the factors which motivated her to accept the offer of employment. Furthermore, her contract made no reference to a compulsory retirement age.
2.2. On 24 October 2008 the respondent wrote to the complainant stating she had passed the normal retirement age of 65. She was told that life cover and disability plans, death in service, sick pay benefits and pension contributions would no longer be operative as she had reached the age of 65 in October 2007. The respondent then invited her to enter into a fixed-term contract for six months. The complainant refused to sign the contract because she wanted to carry on working in accordance with the terms and conditions she had agreed when she started working for the respondent. Since October 2008 the respondent has paid her €43.66/month to compensate her for the cost of the life and disability plan cover. The complainant submits this is no compensation for the benefit of the life and disability plan cover.
2.3. On 15 June 2009 the respondent indicated that the complainant's employment would be terminated on 15 December 2009.The complainant submits she asked her legal representative to write to the respondent and they did this on 20 October 2009. On 28 October 2009 the complainant was invited to a meeting with the respondent when they stated that they were withdrawing the notice of retirement.
2.4. The complainant submitted this claim to the Equality Tribunal on 27 December 2009. On 25 January 2010 the respondent advised the complainant that her life and disability cover had been reinstated with effect from 8 December 2009.
2.5. The complainant submits that she continues to work for the respondent but she has suffered loss of pension contributions and benefits, life and disability plan, death in service cover and sick pay scheme cover, benefits which her colleagues who have not reached 65 continue to enjoy. This includes the named comparator in her equal pay claim, who is in her 30s and undertakes like work with the complainant.
2.6. The complainant submits that the only reference to a normal retirement age is in the pension scheme but this does not bind the complainant in relation to her terms and conditions of employment.
3. RESPONDENT'S SUBMISSION
3.1. The respondent submits that the complainant started working for them in November 1997 and is still working for them. The respondent denies that any assurance was given to the complainant regarding her ability to work after 65 when she started.
3.2. Due to an administrative error they did not realize the complainant had reached the normal retirement age of 65 in October 2007 until September 2008. The HR Manager, Ms Deirdre Bennett then met the complainant to discuss the situation. Because this late notification was their error the respondent offered the complainant a fixed term contract to work for a further six months, given that she had already reached its normal retirement age.
3.3. The respondent accepts the complainant's contract made no reference to a retirement age. However, their Employment Handbook which was distributed in 1999 and was available at all times on their Intranet, clearly provides that the normal retirement age is 65. Also, the annual pension statements provided to the complainant clearly referred to the complainant's normal retirement date of 8 October 2007; her 65th birthday. In 2005 the respondent's Compensation and Benefits team undertook a communication with it's employees regarding their specific benefit entitlements and this presentation clearly showed that employees are entitled to 'pension on retirement at 65th birthday'. The respondent's records show that the complainant attended a benefits entitlement training workshop on 21 July 2005 which was intended to answer any questions. The respondent submits these clearly show there was a compulsory retirement age.
3.4. In respect of the life and disability benefits the respondent submits that the benefits provider did not cover such benefits for employees over 65. Accordingly, with effect from October 2008 they paid the complainant a compensatory amount thus ensuring the principle of equal remuneration was not breached. In the meantime they continued to attempt to obtain cover in respect of such benefits and cover was reinstated with effect from 8 December 2009. This cover includes death-in-service and long term illness benefits.
3.5. The respondent submits that there has never been an issue about the complainant's participation in the respondent's Sick Pay Scheme.
3.6. The respondent submits that under section 1 of the Employment Equality Acts the definition of 'remuneration' specifically excludes 'pension rights' which are defined as 'a pension or any other benefits flowing from an occupational pension scheme' and cannot be included in a claim for equal remuneration.
3.7. The respondent submits they have acceded to her request to work beyond their normal retirement age.
3.8. The respondent submits that the complainant has given no details of her claim of victimization. They contend she was not subject to any adverse treatment as a result of her making this claim to the Equality Tribunal, indeed her life and disability cover was reinstated after they were notified of the claim.
3.9. The respondent submits that retirement age falls within section 34 (4) of the Acts and as such it allows an employer to set different retirement ages for employees or different classes or types of employees. They were simply attempting to enforce their normal retirement age and under section 34 (4) no discrimination occurs where an employer sets a retirement age.
4. FINDINGS & CONCLUSION
4.1. I have to decide if the complainant was discriminated against in relation to access to employment and conditions of employment, if she was victimised and if she has a claim for equal pay on the grounds of age. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
4.2. It is the usual approach of the Equality Tribunal that access to employment claims relate to cases where the claimant is not already working for the respondent. In this claim the complainant was already working for the complainant and, whilst she was asked to retire, she continues to work for the respondent. I conclude no evidence has been presented in relation to access to employment.
4.3. The complainant continues to work for the respondent and therefore it is not for me to decide if the respondent had a normal retirement age of 65 and whether they were discriminatory in trying to make the complainant retire. She contends she is subject to ongoing discrimination on the grounds of age because of the threat that she will be forced to retire, however when the respondent agreed to allow the complainant continue in her employment there made no stipulation that she should retire at any specified age. When it was confirmed that the complainant could continue working it was implicit, because nothing to the contrary was stipulated, that she would continue on the same conditions of employment that she enjoyed through her employment with the respondent.
4.4. The complainant strenuously contends that she was discriminated against in relation to her conditions of employment when certain benefits were withdrawn from her in October 2008 when the respondent realised the complainant had passed 65 years of age one year before. The respondent did not provide an explanation as to why they realised the complainant had reached 65 one year after the event. They did however confirm that they now have alerts in place.
4.5. In October 2008 the respondent told the complainant she was no longer covered by their life and long-term disability policy. She was re-instated into the policy from 8 December 2009. For the period October 2008 to December 2009 she was paid a compensatory amount of €43.66 per month which was the respondent's assessment of the cost of the cover. During that time she was not covered by the policy. It would also appear that she was not have been covered by the policy from October 2007 when she reached 65 until October 2008, as the respondent said the plan did not cover employees over 65. The respondent submitted a copy of their Employee Handbook which stated "In addition to the pension, the Company operates an insured death-in-service (DIS) scheme which covers all permanent employees without exception. The complainant, howevere, was not covered under the life and long-time disability plan from October 2007 to December 2009 and this arose solely because she had reached the age of 65. This amounts to discrimination in relation to conditions of employment as everyone under the age of 65 was covered under the policy. I note that the respondent had amended the policy and the complainant is now covered on an ongoing basis.
4.6. The complainant was no longer able to make pension contributions or receive the benefit of contributions from the respondent into her pension fund. Any claim in relation to a pension scheme has to be made under the Pensions Acts 1990 - 2008. No such claim has been made. Therefore any claim in respect of pension contributions is outside my jurisdiction.
4.7. The respondent confirmed that the complainant was always covered by the respondent's sick pay scheme and will always be covered regardless of age. The complainant did not contest this at the hearing.
4.8. The claim in relation equal pay relates to the employer's contributions in relation to contributions under the life and long-term disability plan and pension contributions. Section 29 of the Acts gives an entitlement to equal remuneration where people carry out like work. Section 2 of the Acts defines 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 employer receives, directly or indirectly, from the employer in respect of the employment".
4.9. Pension contributions are explicitly excluded from remuneration under the Employment Equality Acts and I therefore have no jurisdiction to consider this part of the equal pay claim.
4.10. I have dealt with the effects of the complainant not being covered by the life and long-term disability policy under conditions of employment. I also have to deal with the effects of this lack of cover in relation to her remuneration under the equal pay claim. When they realised the complainant was no longer covered by the policy they paid her compensation. This compensation represented "the cost to the company of providing the cover to other employee". The complainant contended "that money does not even begin to compensate the Claimant for loss of life and disability cover". However she put forward no claim that this financial compensation was insufficient. I therefore have no evidence as to whether the complainant suffered a loss of remuneration during this period.
4.11. The compensation was paid from October 2008. This means that from October 2007 until October 2008 the complainant did not have the benefit of the life and long-term disability cover and received no financial compensation for the lack of cover. I conclude that the complainant did not receive equal remuneration with a named comparator, who was under 65 years of age, for the period October 2007 until October 2008 and this amounts to discrimination on the grounds of her age.
4.12. The complainant contends that she was victimised following a letter from her representative dated 20 October 2009 to the respondent which asks for clarification of a number of issues and confirms that the complainant "has instructed us to commence proceedings before the Equality Tribunal seeking restitution for of those benefits which have been removed from her by virtue of her age and compensation for the discrimination she has suffered". The claim is that the complainant was victimised in the respondent's subsequent responses after they had been informed of a pending claim to the Equality Tribunal. The claim was registered on 10 December 2009.
4.13. Section 74 (2) of the Acts states: ".....victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings [under this Act] by a complainant, .......". The respondent was aware of a pending of a pending claim of discrimination and, whilst the complainant may not have liked the respondent's subsequent replies, no evidence has been adduced to demonstrate that the complainant suffered "adverse treatment" after the respondent became aware that a claim of discrimination was to be made. Indeed the respondent's reply of 2 November 2009 confirmed that the complainant's request to work beyond 65 had been granted.
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts:
- that the respondent did not discriminate against the complainant in relation to access to employment,
- that the respondent did discriminate against the complainant in relation to conditions of employment, and
- the complainant does perform 'like work' with the named comparator in terms of Section 7(a) of the Acts. I find that there are no objective grounds other than age for the difference in pay for the period October 2007 to October 2008 in accordance with section 29(5) of the Act and that the complainant has been discriminated against by the respondent on the grounds of age, and
- that the complainant was not victimised.
I hereby order that the respondent pay to the complainant:
- €5,000 in compensation for the discriminatory treatment suffered in relation to conditions of employment. This figure represents compensation for infringement of her rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.
- Equal pay remuneration of €523.93 (€43.66 x 12), in accordance with section 82(1)(a) of the Acts.
23 October 2012