The respondent argued that the matter was statute-barred and this was dealt with as a preliminary matter in accordance with section 79(3) of the Employment Equality Acts as applied to the pension’s legislation. Another matter to be dealt with was whether the claim was from the retired civil servant or himself and his partner.

What follows is a description of the complainant’s treatment with respect to a pension scheme in the Civil Service.  The complainant, Mr. A, was a civil servant from January 1974 until June 1995.  He was compulsorily made a member of the Civil Service Widows’ and Childrens’ Contributory Pension Scheme.  If single on retirement any payments made would be refunded and Mr. A was refunded his contributions in full.  This scheme is called the original scheme in the Decision because in 1984 a new scheme was introduced which Mr. A opted out of.  This second or Revised Scheme, provided for marriage, and children, after retirement and therefore no refunds would arise. Mr. A and his partner Mr. B entered into a civil partnership in 2010 which was recognized in this jurisdiction in January 2011.  Mr. B then wrote to the respondent enquiring whether he was entitled to any benefit.  In July 2013 both Mr. A and Mr. B were informed that the Minister had decided to uphold the decision that Mr. A should not be permitted to revisit his decision in 1984 not to join the Revised Scheme.

The respondent argued that section 82E(5) of the Pensions Acts provides that a claim of an alleged breach of equal pension treatment may not be referred after the end of six months from the date of the termination of the relevant employment.  This may be extended to 12 months.  It was also argued that Mr. B was not a person who was in receipt or otherwise of equal pension treatment.  Rather, his claim is predicated on being a potential beneficiary.

The complainants argued that Mr. A was at a particular disadvantage in comparison to heterosexuals who had had the opportunity of benefiting a spouse while he had no opportunity to benefit a civil partner.  They argued that the discrimination occurred in 2013 when they were informed of the Minister’s decision and they accepted that no discrimination could have occurred prior to civil partnership being introduced in Ireland in 2011 as non-marital homosexuals and heterosexuals were treated alike in 1984.  They contended that Mr. A was never asked and never renounced the right to benefit a same sex partner.

The Equality Officer found that Mr. B did not have locus standi to maintain his claim under the Pensions Acts because his claim was based on him being a potential beneficiary rather than not receiving equal pension treatment.

The Equality Officer agreed that the time-limits detailed in the Acts applied and that any departure from their application would be ultra vires her authority.  Although this dispenses with the claim the Equality Officer goes on in the interests of completeness to find that the complainant was incorrect in his implication that civil servants who remained in the Original Scheme are excluded from benefits for surviving civil partners.  Indeed, all pension schemes including the two at issue here were amended on the introduction of the Civil Partnership Act in 2011 to enable persons in a civil partnership to access the same benefits that were previously only available to spouses of members.

The complainant asserted that others who had previously opted not to join the revised scheme had been permitted to on appeal.  As these were individuals who had been married at the time they opted not to join the revised scheme the Equality Officer was not satisfied that these were appropriate comparators.

The Equality Officer found that the claim had no prospect of succeeding and dismissed it as frivolous, vexatious and misconceived.  The Equality Officer made her decision in accordance with s79(6) the Employment Equality Acts as applied to section 81H of the Pensions Acts.  The full interaction of the Acts is set out in paragraph 5.1 of the Decision.

Why this case is of interest:

• This is the first decision to find that a beneficiary does not have locus standi for a claim in respect of equal pension treatment.
• It also indicates that while the impact of any treatment by an employer in respect of pension treatment may not be immediately obvious, any claim must be made within 6 months of the cessation of the employment as previously found by the Tribunal.