Case Number: DEC-P2013-004. Equality Tribunal

• Judgment Date: 01 December 2013
• Year: 2013
• Docket Number: DEC-P2013-004
• Court: Equality Tribunal

The Equality Tribunal The Pensions Acts Decision DEC-P2013-004 PARTIES David L Parris (Represented by Marguerite Bolger, S.C., and Eilis Barry, B.L., instructed by Sheehan and Partners) - V - Trinity College Dublin, (Represented by Arthur Cox) The Higher Education Authority, The Department of Public Expenditure & Reform and The Department of Education & Skills File references: PEN/2011/001, PEN/2012/001, PEN/2012/002 & PEN/2012/010 Date of issue: 16 December 2013

Keywords – Pensions Acts – Discrimination in the rules of an occupational pension scheme – Age – Sexual Orientation - Civil Status – Combination of Grounds – Defence – Ultra Vires

1. DISPUTE

1.1 This dispute concerns a claim by the complainant that he was discriminated against by the respondents on the grounds of his age, sexual orientation and civil status 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 claims of discrimination to the Director of the Equality Tribunal on 15 June 2011 under the Acts. On 14 and 19 February 2013, 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 these cases 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.

1.3 The facts of this complaint are not in dispute and are as follows:

• The complainant is a retired Senior Lecturer who was employed by the first-named respondent from 1972 until his retirement on 31 December 2010.
• The complainant is a member of the College Pension Scheme.
• The complainant and his partner have been living together in a committed same sex relationship for over thirty years
• The complainant and his partner entered into a Civil Partnership in the UK on 21 April 2009
• On 22 April 2009, the complainant wrote to the first-named respondent seeking to alter his status from ‘single’ to ‘married’.
• The first-named respondent replied to the complainant indicating that it was not in a position to accede to his request until such time as Civil Partnerships were recognised under Irish law
• The respondents operate a pension scheme which includes a rule whereby in the event of death, the spouse of the member is entitled to 2/3rds of the pension, provided the marriage took place prior to the members 60th birthday
• The pension scheme provides different rules for members who marry after their 60th birthday under Rule 24
• Rule 24 provides that where a member predeceases their spouse within 5 years of retirement, then an amount equal to the installments of the pension which would have been payable to the member during the period from his death to the fifth anniversary of the normal pension date shall then be payable to his spouse, dependents (as defined under the scheme rules) and/or his personal representatives provided he has made a will or is survived by his next of kin.
• Following the coming into force of the Civil Partnership Act on 1 January 2011, the pension scheme, including the aforementioned rule 24, was amended to include Civil Partners, as defined by that Act, in an identical manner to spouses
• The complainant was informed that as his civil partnership took place after his 60th birthday, his partner may be entitled to any benefit provided for by rule 24
• The pension scheme closed to new entrants on 31 January 2005

2. SUMMARY OF THE COMPLAINANT'S CASE

2.1 The complainant submitted that he is relying on Articles 20 and 21 of the European Charter of Fundamental Rights:

Article 20 provides that ‘Everyone is equal before the law.’

Article 21 provides that any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.

2.2 The complainant submitted that the legal status of the Charter under Article 6(1) of the TEEU (the main European Union Treaty) was expressly referred to by the Court of Justice in Kucukdeveci v Swedex GmbH[1], in support of the existence of a principle of non-discrimination on grounds of age as a general principle of European law. The national legislation at issue in that case distinguished between workers on grounds of age in calculating notice entitlement which was found by the Court of Justice to come within the provisions of the Framework Directive 2000/78 as covering conditions of dismissal. The Court found that where a directive gives expression to a general principle of EU law, a national court must dis-apply a national provision falling within the scope of EU law which it considers to be incompatible with that principle and which cannot be interpreted in conformity with that principle, even in a horizontal dispute between two individuals.

2.3 The complainant continued that even more recently, a strong approach was taken by the Court of Justice in declaring the actual contents of a Directive to be incompatible with Articles 21 and 23 of the Charter which guarantees the principle of equal treatment of women and men. In the case of Association Belge des Consommateurs Test-Achats ASBL and others v Conseil des Ministres[2] Article 5(2) of the Access to Goods and Services Directive, which allowed for a derogation from the principle of equal treatment by reference to actuarial tables, it was found to be incompatible with provisions of the Charter because it had the capacity to continue indefinitely. Therefore the Article was declared to be invalid upon the expiry of an appropriate transitional period

2.4 The complainant submitted that the Court’s decision followed on from the Opinion of the Advocate General which found that the provisions of European law, i.e. the directive, was superseded by the higher ranking gender provisions of the Charter.

2.5 Furthermore, the complainant submitted that it also relies on the general principle of Community law prohibiting age discrimination. In Mangold V Helm[3] the ECJ stated that

‘the principle of non-discrimination on age [is] a general principle of Community law.’

It concluded that

“it is the responsibility of the national court to guarantee full effectiveness of the general principle of non-discrimination in respect of age, setting aside any provision of national law which may conflict with Community law, even where the period prescribed for transposition of that Directive has not yet expired.’’

2.6 The complainant submitted that Article 1 of Council Directive 2000/78/EC provides that the purpose of the Directive is to lay down a general framework for the combating of discrimination on the grounds of religion or belief, disability age or sexual orientation, with a view to putting into effect in the member states the principle of Equal Treatment. Article 2 provides that the principle of equal treatment means that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.

2.7 The case of Maruko V Versorgungsanstalt der deutschen Buhnen,[4] concerned a homosexual man in a registered same-sex partnership. After the death of his partner Mr Maruko’s application for a widower’s pension was rejected by his partner’s pension institution on the basis that only spouses were entitled to this benefit. The ECJ found that the widower’s pension could be classified as pay within the meaning of article 3(1) c of the Framework Directive and Article 141 EC. “It is clear from Article 3(1)(c) and (3) of Directive 2000/78 that the Directive applies to all persons, as regards both the public and private sectors, including public bodies, inter alia, in relation to conditions of pay and that it does not apply to payments of any kind made by state schemes or similar, including state social security or social protection schemes.”

2.8 The complainant submitted that the scope of Directive 2000/78 must be understood – in the light of those provisions read in conjunction with Recital 13 of the preamble to the Directive – as excluding social security or social protection schemes, the benefits of which are not equivalent to ‘pay’, within the meaning given to that term for the application of Article 141 EC, or to payments of any kind made by the State with the aim of providing access...