Complainant

Respondent

Parties

Marian Moran

St Vincent's Healthcare Group DAC

Representatives

Self-represented 

Andrea Tancred, IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998

CA-00068886-001

28/01/2025

The complainant commenced employment with the respondent on June 25th 1979.  From June 2000 until she retired in January 2021, she was a statistics manager, a grade VI role on the HSE’s clerical scale.  As the complainant joined the workplace before the introduction of pension benefits based on career average salaries, her pension is linked to the salary of the current grade VI clerical scale.  When she retired, she was on the second long service increment (LSI) point for the grade VI statistics manager which is the top point of the scale for that grade.

In October 2023, more than two years after complainant retired, the respondent advertised a vacancy for a statistics manager at grade VII.  The complainant reviewed the job description associated with the advertisement and it is her view that the grade VII job is the same as the job that she held at grade VI.  She claims that the grade VII role advertised in October 2023 is the job that she was employed in and that her grade VI role has been up-graded.  She claims that she is entitled to have her pension linked to the salary of a grade VII statistics manager.  She claims that, by not linking her pension to the grade VII pays scale, she is being discriminated against on the ground of age.

On behalf of the respondent, Ms Tancred argued that, in the first instance, as the complainant retired in January 2021, and, as she submitted this complaint to the WRC on January 28th 2025, it has been submitted more than six months outside the time limit for which I have jurisdiction to conduct an investigation.

In response to the substantive complaint of discrimination, Ms Tancred referred to the decision of the Labour Court in Southern Health Board v Mitchell[1] which addresses the onus on an employee to set out the basic facts from which it may be presumed that, on the balance of probabilities, the treatment complained of is discriminatory.  Ms Tancred referred to s.6(1) of the Employment Equality Acts 1998 – 2015 (“the Act”) where discrimination is defined as occurring 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 specified in subsection (2) (in this Act referred to as the "discriminatory grounds")[.]

At subsection (2)(f), the age ground is listed as one of the nine discriminatory grounds. 

It is the respondent’s position that the complainant has failed to cite any person that she could compare herself to and establish that she was treated less favourably.  As the complainant has not presented any evidence of a real or hypothetical comparator, Ms Tancred submitted that she has failed to establish any inference of discrimination.

Section 2 of the Act, under the heading, “Interpretation,” defines an “employee” as,

“… a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment …”

A “employer” is,

“… the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment[.]”

Regardless of the reason for the cessation of employment, a former employee such as the complainant, who has retired, may make a complaint about discrimination on any of the nine grounds.  The complaint may be adjudicated on, subject to certain time limits set out at s.77 of the Employment Equality Act.  The same time limits are set out at s.41(6) of the Workplace Relations Act 2015.

The complainant retired from her role as a statistics manager in January 2021.  The advertisement that alerted her to the possibility that she was discriminated against was posted in October 2023 and this complaint was submitted to the WRC 15 months later, in January 2025. 

In accordance with s.77 of the Employment Equality Act, the period for which I am permitted to conduct an investigation into an allegation of discrimination is six months before the complaint was submitted to the WRC, which is from July 29th 2024 until January 28th 2025.  When I asked the complainant to respond to the contention that her complaint was submitted outside the six months statutory time limit, she said that, in October 2024, she was advised by the Pensions Ombudsman, to submit a complaint to the WRC.  She claims that she has been discriminated against from the date that the person who was appointed to the grade VII role on foot of the advertisement of October 2023 commenced in the role and that the discrimination is continuing.

Based on this position, the complainant’s claim of discrimination is encompassed by the six months from July 29th 2024 until January 28th 2025 and I have decided therefore, that I will proceed to investigate her complaint.

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (1) Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the responsibility is on the complainant to show that, based on the primary facts, she has been treated less favourably than a younger person.  On behalf of the respondent, Ms Tancred referred to the decision of the Labour Court in Southern Health Board v Mitchell.  Describing the evidential burden on the complainant in that case, the Labour Court held that,

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

“It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

The Primary Facts

At the hearing of this complaint, the following primary facts emerged:

1.       The complainant was employed by the respondent for almost 42 years.  For the second 20.5, she was a statistics manager at grade VI of the HSE clerical scale.

2.       She retired in January 2021.  Her contract of employment provides that she is entitled to a pension based on 40/80ths of the top point plus the final increment of the current grade VI clerical scale.

3.       In October 2023, the respondent advertised for a new position of a statistics manager at grade VII.  A person who was in a temporary position at grade V applied for the job and was appointed to the role.

4.       The person who replaced the complainant was on a career break when the grade VII role was established.  Due to a recruitment moratorium imposed by the HSE, her role was not back-filled.  It is the respondent’s position that this grade VI role is still required in the statistics department and that the person on career break will return to that job.

5.       The grade VII role was advertised and filled during the recruitment moratorium.  The assistant HR director gave evidence that a job specification for the role was developed to take account of the increased demands arising from a change in the hospital structure and the closer incorporation of St Michael’s Hospital into the Group.  The chief executive officer presented a case for the recruitment of the additional role to the Employment Control Committee, which approved the position.

As set out by the Labour Court in the Southern Health Board decision, to establish that discrimination has occurred, I must find that the decision of the respondent in October 2023 to hire a statistics manager at grade VII, is “of sufficient significance to raise a presumption” that the complainant was treated less favourably because of her age.

Findings

Having considered the submissions of both sides at the hearing of this matter, it seems to me that this complaint is a grievance or a dispute and is not about discrimination.  If the complainant had not retired in January 2021, but was still employed in October 2023, she may have been appointed to the grade VII role.  She would have retired on a higher pension.  The fact that she is older than the person who was appointed to the grade VII role does not raise an inference of discrimination. 

The role that the complainant held still exists in the hospital group, albeit that the incumbent is on a career break and has not been replaced. 

The complainant submitted no evidence that shows that a younger person has been treated more favourably than her with regard to pension entitlements.  The person appointed to the grade VII role is not a pensioner and therefore, is not a comparator.

The complainant is entitled to a pension based on the salary she was paid at the date of her retirement.  She has no entitlement to a pension based on the salary for any other role.

Subject to consultation with employees, an employer is entitled to change the structure of a department or of its entire organisation and the creation of a new job, or the elimination of a job, has no impact on the pension entitlement of previous employees.  The amount an employee is entitled to as a pension must be linked at the date of termination to the employee’s final salary.  The linking of pension benefits to future organisational changes would have a chaotic impact on pension entitlements and future funding and is not a feasible prospect. 

I do not accept that the complainant’s role was upgraded after October 2023, but, even if it was, this creates no obligation on the respondent to increase her pension.  Structural changes are an ongoing fact of organisational development and cannot feed into changes in pension benefits for employees who have retired.

Conclusion

I have carefully considered the complainant’s evidence at the hearing on June 4th 2025.  I accept that she must have been disappointed when she saw the advertisement for the grade VII role, as she had carried out the job of statistics manager at grade VI for more than 20 years.  It is my view however, that the respondent is entitled to change the structure of the statistics department and to appoint people at a higher grade to a job that is more complex or which carries more responsibilities.  The complainant doesn’t accept that the grade VII job is more complex or that it has more onerous responsibilities compared to the job she had.  The respondent presented a different case.  As I have already remarked however, even if the job hasn’t changed and has been simply upgraded, this doesn’t create an entitlement to a pension at the higher grade.

Following the principle established in Southern Health Board v Mitchell, I find that the facts submitted by the complainant do not raise a presumption of discrimination.  As a result, the responsibility for proving that discrimination did not occur does not shift to the respondent.

I have concluded that the complainant had not established the primary facts which show that she was discriminated against on the ground of her age.  I decide therefore, that this complaint is not well founded.

Discrimination, pension, retirement