THE EQUALITY TRIBUNAL
PENSION ACTS 1990-2011
Ms Adrienne Boyle (represented by SIPTU)
Age Action Ireland (represented by Ms Patricia O’Sullivan Lacey, B.L., instructed by Byrne Wallace Solicitors)
File References: PEN/2011/003
Date of Issue: 9th December 2013
1.1. The case concerns a claim by Ms Adrienne Boyle that Age Action Ireland discriminated against her on the ground of age contrary to Section 66(1) and 66(2)(f), and in contravention of S. 70 of the Pension Acts 1990 to 2011, in relation to its occupational pension scheme.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 14 June 2011. A submission was received from the complainant on 11 June 2012. A submission was received from the respondent on 27 September 2012. On 7 October 2013, in accordance with his powers under S. 75 of the Acts, 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 required by the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 14 November 2013.
2. Summary of the Complainant’s Written Submission
2.1. The complainant submits that she was employed by the respondent on a fixed term contract from 1 September 2009 until 14 September 2011, when she felt constrained to resign, three-and-half months before the end of her contract, which would have been 31 December 2011. She states that the fact that the respondent had no age restrictions in terms of employment, and had a contributory pension scheme in which both the employer and the worker contributed 5% of salary to the scheme, were important considerations for her in seeking employment with the respondent.
2.2. She contends that on 24 January 2011, without prior notice or consultation with staff, that the respondent CEO informed the respondent staff at a meeting that cuts to certain terms and conditions of their employment would have to be made, one of which was the employer contribution to the pension scheme. On 6 February 2011, the respondent’s deputy CEO emailed the complainant to seek her agreement in writing to a contract amendment form to give effect to these changes in the complainant’s contract of employment. The complainant refused to sign this document. The complainant was 64 years of age at the material time.
2.3. On 15 February 2011, the complainant wrote to the respondent in this matter, pointing out to the respondent that one reason she accepted a position with the respondent was the good pension scheme. She further stated that she would turn 65 in the course of 2011 and was contributing the maximum advised the the respondent’s pension adviser in light of her financial circumstances. According to the complainant, the fragmented nature of her preserved/deferred pension entitlements with other employers meant that she had to maximise pension provision in every way possible up to the age of 66, otherwise she was fearful of falling into income inadequacy.
2.4. It is the complainant’s argument that taking 12 months’ of employer contributions from the pension scheme would result in such income inadequacy. She further argues that since her particular position, including the respondent’s pension contribution was funded by Help Age International and Irish Aid, there was no necessity for the respondent to stop funding her pension.
2.5. The complainant submits that the cut in the employer’s pension contribution is indirectly discriminatory for older workers, who have less time to make up such a shortfall in their pension provision than would younger workers.
3. Summary of the Respondent’s Written Submission
3.1. The respondent denies discriminating the complainant as alleged or at all. It submits that it is a charity, established in 1992 to promote positive ageing and to campaign against ageism in all aspects of life, including employment. It states that it finds itself in a constant struggle to obtain funding to maintain its work, especially since the numbers of older persons in Ireland is rising.
3.2. Since 2008, this financial pressure has increased significantly with annual cuts in all statutory grants which the respondent is in receipt of, as well as corporate and private donations. From 2007 to 2011, the respondent implemented annual reductions of up to 25% in administration and premises. In 2008, it froze increments and cost of living allowances for all staff. In 2009 and 2010, it had to close two shops and two projects, with seven associated staff redundancies.
3.3. Despite these efforts, the respondent was faced with a shortfall of €672,000 in 2010. At a board meeting in November 2010, the respondent’s directors decided that urgent action had to be taken to prevent a deficit in 2011. The plan which emerged contained three main measures: A 5% pay cut for all staff earning more than €50,000 p/a; two weeks unpaid leave for all staff except those who were employed under the State’s Community Employment (CE) scheme; and withdrawal of the employer pension contribution from 1 February 2011 for all staff in the pension scheme.
3.4. The respondent states that when this plan was presented at a staff meeting in January 2011, it gained the support of a majority of staff, who preferred it to making some staff redundant. The respondent states that all staff, except the complainant, agreed to the amendment of their contracts.
3.5. The respondent further states that the total loss to the complainant, in terms of employer contributions to her pension, was €480 net of tax. Also, her resignation from the respondent in September 2011 meant that the complainant forwent other salary and employer’s pension payment which far exceeded the loss of the pension holiday. These were: €5,344 foregone gross wages from 14 September 2011 to 31 December 2011; a part time project contract that would have been worth €2,990 gross; and a major Irish-Aid funded full-time project, of which the complainant had been the main developer, and which would have paid €160,000 over four years, including €8,000 in pension contributions from the respondent. The respondent states that the complainant had been instrumental in developing all these projects, and that it expected her to continue to work on them until her sudden resignation.
3.6. Furthermore, the respondent points out that staff, regardless of their age, may have other forms of income including pension benefits, as is the case for the complainant, whereas others may be totally dependent on their Age Action salary and pension. Also, since the respondent does not have a fixed retirement age, there is no basis for the assertion that staff of any age have little or no time to make up any shortfall in their pension contributions.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was indirectly discriminated against on the ground of her age, within the meaning of the Acts, when the respondent stopped its contributions to its pension scheme in respect of all staff, regardless of their age.
4.2. In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.3. At the hearing of the complaint, the complainant’s representative clarified that the complainant does not complain of constructive dismissal under the Employment Equality Acts 1998-2011.
4.4. With regard to her main complaint, since the complainant complains of indirect discrimination, the first relevant question is who would be her comparator pool. The complainant submitted that it should be the members of the respondent’s pension scheme, which during her employment with the respondent were about 12 people, two or three of whom were over the age of 60. Alternatively, the complainant submitted that I should follow the principles established in EED0212, NBK Designs v. Inoue and to look at all older workers, in what was claimed was the disadvantage they would find themselves in vis-à-vis younger workers as potential comparators. The respondent submitted that the correct comparator would be a younger person who like the complainant was on a fixed-term contract that was ending on 31 December 2011. The respondent did not point to any such person in the respondent’s employment, so it is not possible to make such a comparison. Taking the people in the respondent’s pension scheme as a comparator pool is likewise not possible, as the numbers are too small to allow any meaningful statistical analysis.
4.5. That leaves generic categories of younger workers as potential comparators. However, while the complainant gave evidence that she had gaps in her pension provision due to family duties and interruptions in her working life which, she submitted, occurred because she is a woman, she did not bring a complaint on gender or family status. On the other hand, the complainant adduced absolutely no evidence that all older workers would have found themselves at the same, or a similar disadvantage, as she had due to the respondent’s measure. I cannot accept the generic argument that older workers would have less time to make up the lack of pension contributions from the employer as being determinative in this complaint, as there is no reason to assume that an older worker may not have built up retirement savings previously, as argued by the respondent in paragraph 3.6 above.
4.6. For this reasons, I find that the complainant has not established a prima facie case that she was put at a particular disadvantage as an older worker by the respondent’s decision to temporarily stop its contributions to its pension scheme in 2011, in response to a difficult financial situation at the charity. Her complaint must therefore fail.
5.1. Based on all of the foregoing, I find, pursuant to S. 81E of the Pension Acts 1990 to 2011, that the respondent did not discriminate against the complainant on the age ground pursuant to S. 66(1)(a) and 66(2)(f) and in terms of S. 70 of the Pension Acts 1990 – 2011 in relation to the decision to stop employer contributions to its pension scheme in 2011.
9 December 2013