The Equality Tribunal
The Pensions Acts
- V -
The Department of Education & Skills
Dublin & Dun Laoghaire Education and Training Board
File reference: PEN/2009/001
Date of issue: 18 November 2013
Keywords – Pensions Acts – Discrimination in the rules of an occupational pension scheme – Age - Misconceived
1.1 This dispute concerns a claim by Mr Brian Fleming that he was discriminated against by the respondents on the grounds of his age in terms of Section 66(2) of the Pension Acts (hereafter referred to as “the Acts”) and contrary to Sections 70 and 78 of the Acts in the operation of the rules of an occupational pension scheme.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 9 January 2009 under the Acts. On 23 September 2011, in accordance with his powers under section 81J of the Pension Acts as amended by the Social Welfare (Miscellaneous Provisions) Act 2004 which apply the relevant provisions of the Employment Equality Acts to occupational pension schemes, the Director then delegated the case to Conor Stokes - 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 sought from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 6 November 2013. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that he was employed as a teacher in the academic period 1969/1970 and again in 1970/1971. Thereafter he continued to be employed as a teacher until his recent retirement.
2.2 The complainant submitted that his employer changed the regulations governing the operation of the occupational pension scheme whereby the pension entitlement for part-time service provided prior to 1 September 1977 is calculated differently to the entitlement that pertains to part-time service after that date.
2.2 The complainant submitted that this difference in treatment is discriminatory on the age grounds and is in breach of the Acts.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondents submitted that the operation of the occupational pension scheme rules are not discriminatory or contrary to the provisions of the Acts.
3.2 The respondents submitted that the complainant’s part-time service only became pensionable with the revision of the pension scheme in 1977 and that in accordance with the pension rules applicable, the complainant’s service was reckoned to be 0.5 of a year for pension purposes.
3.3 The respondents submitted that the complainant opted into the revised superannuation pension scheme on 29 May 1978, and this was acknowledged by letter dated 1 September 1978. The respondent provided the complainant with a certificate of service stating that art-time services in the Session 1970/1971 may be reckoned as a half year on payment of the appropriate sum on 11 July 1985 and that the appropriate contribution was paid in 1986.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent subjected Mr Fleming to discriminatory treatment on grounds of age, in the operation of the rules of the occupational pension scheme in terms of Section 66(2) of the Acts, and contrary to Sections 70 & 78 of those Acts.
4.2 Section 76 of the Acts sets out the burden of proof which applies to claims of discrimination in relation to pensions. It requires the complainant to establish, in the first instance, facts from which it may reasonably be inferred that there has been a breach of the principle of equal pension treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference raised.
4.3 There are a number of issues raised by the parties written and oral evidence including the issue of who is the correct respondent, and the timeframe of this complaint. Notwithstanding the issue of who is the correct respondent in this matter, the matter of the timeframe of this complaint is an overarching consideration.
4.4 Council Directive 200/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation introduced the concept of discrimination on the age ground into Irish law in relation to employment and occupation (including in relation to Pension entitlements). This Directive was given effect in the 2003 amendment of the 1990 Pensions Acts. The alleged discriminatory act complainant of took place in 1977 or at the latest 1978 when the complainant opted into the revised superannuation scheme, therefore, the treatment predates the directive by some 22 years and the national legislation by approximately 25 years.
4.5 In the case of Aer Lingus Teoranta v The Labour Court  I.L.R.M. 485, the Supreme Court held that “the Employment Equality Act 1977 does not have retrospective effect and consequently a difference in treatment occurring before the coming into force of the Act is not capable of constituting discrimination within the meaning of the Act”. I consider that similar logic applies to the Pensions Acts in general, and specifically to the introduction of the concept of discrimination on the age ground in 2003. Therefore, I consider that the instant complaint is misconceived, and must fail.
4.6 Section 77A of the Employment Equality Acts, which has been given effect in the Pensions Acts, states that “The Director may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter and that power has been delegated to the Equality Officer in this case.
5.1 Having considered all the written and oral evidence presented to me, I find that the complaint is misconceived and therefore dismiss this complaint under Section 77A.
18 November 2013