THE EQUALITY TRIBUNAL
PENSIONS ACTS 1990-2012
Decision DEC – P2015 – 002
A Retired Civil Servant and his Civil Partner
A Government Department
Ireland and the Attorney General
((Represented by Anthony Kerr, B.L. instructed by the Chief State Solicitor’s Office)
File References: PEN/2013/014 & PEN/2013/015
Date of Issue: 13th April 2015
1.1 This dispute concerns a claims by a retired civil servant and his civil partner that either or both of them were discriminated against by the respondents on the grounds of age and sexual orientation in terms of Section 66 of the Pensions 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. The issue of whether claims were referred by the two individuals or by one individual represented by the other is in dispute and will be addressed in this decision. The complainant(s) requested that this decision be anonymised and the respondents did not object to this.
1.2 These claims of discrimination were referred to the Director of the Equality Tribunal on 16 May 2013 under the Acts. Initially one of the respondents was named as “the Government”. The papers on this claim were served and accepted by the Attorney General. The Tribunal was subsequently informed that the Chief State Solicitors Office had been instructed on behalf of the respondents. In accordance with his powers under section 81J of the Pensions Acts , on 16 June 2014, the Director then delegated these cases to me, Deirdre Sweeney, 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.
1.3 I noted that the respondents had argued that these claims were statute barred under Section 81 E of the Acts and should be dismissed. I advised the parties that Section 79(3) (A) of the Employment Equality Acts (as applied to Section 81J of the Pensions Act) provides that where such an issue arises it can be investigated as a preliminary matter in the first instance and that I had decided to do so in this case. I also advised the parties that I considered it would be possible to decide this particular issue on the basis of written submissions alone and enquired if they had any objections to this approach. The complainants objected to this approach and consequently I advised the parties that I would hold a preliminary hearing on whether these claims fall within the time limits under Section 81 E of the Pensions Acts. I proceeded to hearing on 4 September 2014 and 23 October 2014. Further submissions were received from both parties following each of these hearings. All written and oral evidence presented to me has been taken into consideration when coming to this decision.
1.4 The facts of this complaint are not in dispute and are as follows:
· Mr A is a retired civil servant who was employed in the civil service from 2 January 1974 until his retirement on 1 June 1995.
On his appointment as an “established male officer” in 1974, Mr A compulsorily became a member of the Civil Service Widows’ and Children’s Contributory Pension Scheme (hereinafter referred to as the ‘Original Scheme’). The provisions of that scheme provided for a refund of contributions paid if the member was single at the time of his retirement.
In September 1984 a new scheme (hereinafter referred to as the ‘Revised Scheme’) was established. This was open to both male and female “established officers” and provided benefits for various categories of dependants excluded from the ‘Original Scheme’ including spouses married after retirement and children born after retirement and children born outside marriage. The provisions of this scheme do not provide for any refund of contributions paid if the member is single at the time of retirement. Serving staff, both male and female, were given the option to opt in or opt out of the revised scheme. Mr A on 13 June 1984 formally acknowledged receipt of the details of the ‘Revised Scheme’ and exercised his right to opt out of this scheme.
Mr A retired with effect from 1 June 1995. Because he was a member of the ‘Original Scheme’ and was single at the time of his retirement he was entitled to and received a full refund of his contributions.
· Mr A and his partner, Mr B entered into a civil partnership in the United Kingdom on 23 January 2010 which was recognised in this jurisdiction with effect from 12 January 2011.
· On 14 January 2011, Mr B wrote to the first-named respondent enquiring as to whether he was entitled to any benefit under his civil partner’s pension scheme and outlining that his partner had been refunded his contributions to the ‘Original Scheme’ when he retired. Ongoing correspondence ensued, which included appeals by the complainants to the Minister of that Department. In essence, Mr A was advised that his partner had no entitlement to any benefit under the provisions of the scheme of which Mr A was a member. By letter dated 29 July 2013, Mr A and Mr B were advised that the Minister had decided to uphold the original decision that Mr A should not be allowed to revisit the decision he exercised in 1984 not to join the ‘Revised Scheme’.
2. SUMMARY OF RESPONDENTS’ CASE
2.1 The respondents advance the argument that these claims are statute barred and should be dismissed. The respondents refer to Section 81E (5) of the Pensions Act 1990 (as amended). This provides that a claim for redress in respect of an alleged breach of equal pension treatment may not be referred after the end of the period of six months “from the date of the termination of the relevant employment”. Section 81E (6) empowers the Director of the Equality Tribunal to extend that period by no more than a further six months. The respondents point out that the date of termination of the complainant’s employment was 1 June 1995, almost eighteen years prior to the submission of these claims.
2.2 The respondents further submit that the complaint essentially concerns the decision of the Minister not to retrospectively include the complainant in the revised Spouses and Children’s Contributory Pension Scheme, in circumstances where the complainant opted out of the scheme in 1984. The respondent submits that insofar as the complainant contends that the exercise of the Minister’s discretionary power is tainted by discrimination whether that it be on the civil status or sexual orientation ground, this is not something which can be investigated under the Pensions Acts.
2.3 In relation to the status of Mr B as a complainant in these proceedings, the respondents point out that Section 81(E) (1) of the Pensions Acts requires a complainant to be a person “who claims not to be receiving or not to have received equal pension treatment in accordance with this Part”. The respondents submit that Mr B is not such a person. He is not a member of the relevant scheme and his claim is predicated on his being a potential beneficiary of Mr A’s scheme membership. The respondents also refer to the time limits set down by Section 81(E) (5).
3 SUMMARY OF COMPLAINANTS’ CASES
3.1 Mr A submits that this is a claim of discrimination on the grounds of sexual orientation and age arising from the rules and practices of the Civil Service Pension Scheme which permanently exclude the complainant’s civil partner, Mr B from the benefits of a post retirement spouse’s pension. Following the first hearing in an email of 22 October 2014, Mr B wrote to the Tribunal stating that there was a possible misunderstanding and that he wished to clarify that the claims are being brought by both Mr A as a member of the Pension Scheme and by himself, Mr B as a potential beneficiary. Mr B confirmed that he was also acting as Mr A’s representative.
3.2 Before and after Mr. A’s retirement, Mr A and Mr B lived in Dublin. They were in a relationship in 1984 but lived separately. The complainants registered for a civil partnership on 23 January 2010 in Edinburgh Scotland. Their civil partnership was legally recognised in Ireland on 13 January 2011. They state that civil partnership was introduced in Ireland on 1 January 2011 on foot of the Civil Partnership Act 2010 and that spouse pensions for civil partners were introduced then for members of the ‘Revised Scheme’. The complainants state that “civil servants who had remained in the ‘Original Scheme’ were excluded from a civil partner benefit because of their spousal choice in 1984”. The complainants contend that this places Mr A at a particular disadvantage compared to heterosexuals in the Civil Service, all of whom had been given options of benefiting a spouse while he had no opportunity to benefit a civil partner. On the introduction of Civil Partnership they contend that Mr A asked the respondents to confirm that on payment by him of equitable contributions he would be allowed the opportunity to acquire for his civil partner the same pension he would have acquired for a wife had he opted for the ‘Revised Scheme’ in 1984.
3.3 It is contended that the discrimination occurred on 29 July 2013 when the Minister on appeal finally refused Mr A an option to benefit his civil partner, Mr B, under the Pension Code and this discrimination is continuing since that date. Mr A alleges that the respondents excluded him from an opportunity to benefit his civil partner. It is contended that “the discrimination arose when the Respondent after Mr. A had exercised the option added civil partners to the category of persons excluded from a post retirement spouse benefit and thereby excluded Mr A from an opportunity to benefit a civil partner. This addition is not mandated by European law and postdates the transposition of the Equality Directive into Irish law in 2003.” The complainant contends that he should have been provided with an opportunity to benefit his civil partner following the enactment of the Civil Partnership Act 2010. The complainants contend that there are pension scheme rules and practices which deny post retirement civil partner benefits to homosexual members of the ‘Original Scheme’ and these contravene three judgments of the Court of Justice of the European Union. The complainants contend that the effect of these judgments is that “Ireland is required to offer Mr A an option, following his civil partnership , at the first opportunity it could have given to him, to benefit his civil partner, as his heterosexual comparator was so offered in 1984 and may have had subsequent opportunities to do so.”
3.4 Mr A and Mr B accept that no act of discrimination in respect of a civil partner could have occurred prior to 1 January 2011 when civil partnership was introduced in Ireland. They contend that no such discrimination is claimed prior to then because non marital homosexuals or heterosexuals were treated alike in 1984. However the complainants alleged that the1984 option to join the ‘Revised Scheme’ catered for heterosexuals exclusively and made no provision for homosexuals’ partners. Mr. A did not take the option because he could not satisfy the condition of marriage and remained in the ‘Original Scheme’. Mr A alleges that the option offered to him was a meaningless one by virtue of his sexual orientation. In declining the 1984 option Mr A was automatically required to permanently renounce the right to benefit a post retirement wife. The complainants contend that he was never asked to and never renounced the right to benefit a same sex partner. Mr A retired in 1995 and as he had no wife on retirement and had declined the option of the ‘Revised Scheme’, his contributions to the ‘Original Scheme’ were repaid to him.
3.5 The complainants state that the purpose of the Civil Partnership Act 2010 “is to create equal pension treatment for homosexuals”. They state that “the homosexuals who opted to join the ‘Revised Scheme’ in 1984 have been allowed to benefit a civil partner by virtue of Section 99 of the Civil Partnership Act 2010”. However they contend that equal pension treatment is not achieved in the present case “as it is neither fair nor rational to assist only a portion of that group that is homosexuals in the ‘Revised Scheme’”. The complainants state that the Pension Code tells “those couples who choose the Original Scheme, ‘you were not far-seeing enough in 1984’ and harms them while rewarding the clairvoyant homosexuals who choose the Revised Scheme”. They contend that the correct method to give effect to the purpose of creating equal pension treatment “is to assist the entire group as that is the very objective which is sought by the Act (and ultimately by the Directive)”.
4 CONCLUSIONS OF EQUALITY OFFICER
4.1 The first issue I will deal with is whether Mr B is a complainant in this case. Each of the complaint forms submitted on 16 May 2013 contained the name of Mr A as the complainant and in brackets underneath this, the name of Mr B. Mr B was identified in the form as Mr A’s representative. The forms were signed by both individuals. I am satisfied that some confusion arose as to the identity of the complainant(s). However the form is not a statutory form. I am satisfied that both complainants referred complaints under the Pensions Act to the Director of the Equality Tribunal on 16 May 2013.
4.2 The respondents question Mr B’s locus standi in referring his claims. The respondents contend that he is not a person under Section 81(E) (1) of the Pensions Acts “who claims not to be receiving or not to have received equal pension treatment in accordance with this Part”. I consider that Mr B’s claims are predicated on his being a possible potential beneficiary of Mr. A’s scheme membership in the event that Mr. A predeceases him. Section 81(E) (1) of the Pensions Act provides that
“A person who claims not to be receiving, or not to have received, equal pension treatment in accordance with this Part or to have been penalised in circumstances amounting to victimisation may, subject to subsections (2) to (6) and subsections (1) and (2) of section 81F, seek redress by referring the case to the Director”. I concur with the argument of the respondent that Mr B is not such a person for the purposes of Section 81(E) (1) of the Pensions Acts. I am satisfied that Mr B does not have the locus standii to maintain his complaint under the Pensions Acts in respect of the alleged discriminatory treatment of him.
4.3 The next issue that falls to be addressed is whether the claims referred by Mr A are statute barred and accordingly should be dismissed. Section 81E of the Pensions Acts provides, in the first instance, that a complainant must refer a complaint to the Tribunal within “six months from the date of termination of the relevant employment”. The Section further provides that this period can be extended to a maximum of twelve months for “reasonable cause”. The period between the termination of Mr. A’s relevant employment and the date of referral of the claim is almost 18 years.
4.4 The complainant argues that that the time limits are irrelevant in the instant case as the alleged act of discrimination took place on 29 July 2013 when the Minister, on appeal, refused Mr A an option to benefit his civil partner. His claims have been referred on 16 May 2013. He states that on 24 December 2012 he had received a response from the Department of Public Expenditure and Reform refusing his application to benefit his civil partner. At the time he referred his claims the agreed time for the determination of the outcome of his appeal to the Minister, 1 May 2013, had expired. He states that he is not contending that discrimination occurred in 1984.
4.5 It seems to me that the complainant seeks to apply the time limits prescribed at Section 77 of the Employment Equality Acts to the instant case and to disregard the time limits prescribed in the pensions legislation for claims under those statutes. I note that the complainants were adamant at the oral hearings following my requests for clarification that these claims were not being made under the Employment Equality Acts. The time limits prescribed at Section 81E of the Pensions Acts are clear and unambiguous. These time limits require a claim to be referred to the Tribunal at the maximum, within twelve months of the date of termination of a complainant’s employment. In the complainant’s case this maximum time limit was not complied with. I concur with the respondent’s argument that any departure from the application of the time limits of the Pensions Acts would be ultra vires my authority.
4.6 When I sought clarification as to the nature of the claims before me arguments supplemental to the statutory time limit issue were made to me during the course of the two oral hearings and in the extensive submissions made by the parties,. Whilst my conclusions in the preceding paragraph dispenses with the matter I have decided, in the interest of completeness, to address these arguments. It was submitted on behalf of the complainant that he was less favourably treated than a heterosexual comparator following the enactment of the Civil Partnership Act 2010 in contravention of judgments of the Court of Justice of the European Union. I note that, in these cited judgments, the Court outlined inter alia that a finding of discrimination on the grounds of sexual orientation requires that the situations in question be comparable in the light of the benefit concerned. The complainant states that when civil partnership was introduced in Ireland in 2011 on foot of the Civil Partnership Act 2010 spouse pensions for civil partners were introduced for members of the ‘Revised Scheme’. The complainant contends that this puts him at a particular disadvantage compared to heterosexuals in the Civil Service, all of whom had been given options of benefiting a spouse while he had been given no such opportunity of benefitting his civil partner. The complainant is incorrect in his implication that civil servants who remained in the ‘Original Scheme’ are excluded from benefits for surviving civil partners.
4.7 I note that Section 99 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (the Civil Partnership Act) overrides pension scheme rules insofar as a civil partner is defined in the Act and must be treated in the same manner as a spouse. This provision applies to all Public Service pension schemes. Accordingly all such pension schemes including both the ‘Original’ and ‘Revised’ schemes were amended, on the introduction of this Act in 2011, to enable persons in a civil partnership to access the same benefits that were previously only available to spouses of members. Consequently, from the introduction of the Civil Partnership Act a spouse/civil partner of a member of the ‘Revised Scheme’ can receive a survivor’s pension under the terms of the ‘Revised Scheme’ irrespective of when the marriage/civil partnership occurred. In addition, a spouse or civil partner of a member of the ‘Original Scheme’ can receive a survivor’s pension under the terms of the ‘Original Scheme’ if the marriage/civil partnership occurred prior to the member’s retirement. Any member of the ‘Original Scheme’ such as Mr A, irrespective of their sexual orientation, who retired and received a full refund of their contributions and who subsequently marry or enter into a civil partnership do not acquire rights for potential benefits for their post retirement spouses/civil partners.
4.8 The complainant also submitted that he was less favourably treated than members of the ‘Original Scheme’ who had remarried after retirement and provided me with instances of individuals who had declined to join the ‘Revised Scheme’ but had been allowed under appeal to subsequently join it. This was as a result of limited appeal process recommended by the Commission on Public Service Pensions and approved by Government on 8 October 2004. These appeals had been allowed under the criterion
“(iii) where a member of the original scheme declined to join the revised scheme in circumstances where there would have been no reasonably foreseeable adverse consequences for the individual (in terms only of his or her scheme contributions) had he or she instead opted to join the revised scheme” (my emphasis).
I note that ‘adverse financial consequences’ relate only to the position of the scheme member’s contributions and are not related to any potential financial impact of the scheme member’s decision on another party such as a potential spouse or, since 2010, civil partner not being eligible for a prospective spouse’s pension. I note that from the evidence of the respondents which was not disputed by the complainant that the individuals in the cases referenced by the complainant were married at the time they each opted out of the ‘Revised Scheme’. Consequently as married people they would not be entitled to refund of contributions on retirement and there were no reasonably foreseeable adverse consequences for these individuals in terms of their scheme contributions (as the contributions remained the same) if they had opted to join the revised scheme. Unlike the complainant who received a full refund of his contributions to the ‘Original Scheme’ on his retirement, these individuals were not entitled to or received such refund. I am not satisfied that the circumstances of the complainant and these individuals are comparable.
4.9 Section 77A of the Employment Equality Acts, which has been given effect in the Pensions Acts, provides as follows:
(1)The Director may dismiss a claim at any stage if of the opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.”
In Farley v Ireland & Others the Supreme Court stated as follows –
“So far as the legality of the matter is concerned frivolous and vexatious are legal terms, they are not pejorative in any sense….It is merely a question of saying that so far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case. Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed and the law calls this vexatious.”
These principles were subsequently reiterated by the Supreme Court in Fay v Tegral Pipes Ltd & Others. McCracken J delivered the Court’s judgement stressing that the ‘real purpose’ of the courts’ inherent jurisdiction to dismiss frivolous or vexatious claims was firstly to ensure that the courts would be used only for the resolution of genuine disputes and not for ‘lost causes’ and, secondly, that parties would not be required to defend proceedings which could not succeed. In Keane v. Minister for Justice [1994 3IR 347], Lynch J found that the Minister had no statutory power to relieve Leitrim County Council of its duty to provide courthouse accommodation in Carrick-on-Shannon and that her direction to the council was therefore “wholly misconceived and invalid”. In light of the foregoing in my view when deciding whether or not to dismiss a claim as frivolous, vexatious or misconceived in terms of Section 77A of the Acts (as it applies to the Pensions Acts, 1990-2012) I must be satisfied that the complainants have no reasonable chance of succeeding in their claims. I find in the instant cases that each of the complainants has no prospect of succeeding in his claims and I dismiss them in accordance with section 77A of the Employment Equality Acts, 1998-2011 (as applied to section 81E of the Pensions Acts, 1990-2012 by section 81J of those Acts (as amended by section 66 of the Equality Act, 2004)).
5 DECISION OF THE EQUALITY OFFICER
5.1 I have completed my investigation of these claims and make the following decision in accordance with Section 79(6) of the Employment Equality Acts ( as applied to Section 81 H of the Pensions Acts), I find that each of the complainants’ claims are frivolous, vexatious and misconceived in terms of Section 77A of the Employment Equality Acts ( as applied to Section 81 E of the Pensions Acts, by Section 81 J of those Acts (as amended by Section 66 of the Equality Act 2004 ) and I dismiss all claims on that basis in accordance with powers conferred on me under that provision.
13 April 2015.
 Case C-267/06 Tadao Maruko v Versorgungsanstalt der deutshen Buhnen  ECR1-1757
Case C-147/08 Jurgen Romer v Freie und Hansestadt Hamburg  ECR 1-3591
Case C- 267/12 Frederic Hay v Credit agricole de Charente et des Deux-Sevres  12 Dec 2013
 Case C-267/06 Tadao Maruko v Versorgungsanstalt der deutshen Buhnen  ECR1-1757
Case C-147/08 Jurgen Romer v Freie und Hansestadt Hamburg  ECR 1-3591
Case C- 267/12 Frederic Hay v Credit agricole de Charente et des Deux-Sevres  12 Dec 2013
  IESC 60
  2IR 261