The complainants, eight in all, lodged complaints against two respondents in respect of the same complaint which was that the application of the pension levy on them and the consequential effect on their pension benefits amounted to discrimination of them on the age ground.  Both respondents raised preliminary issues and requested that they be addressed in the first instance and the Equality Officer decided to do that.

The first ESB argued that it was a stranger to the complaints, and in the alternative, that the claims were time-barred and that the claims did not relate to a rule of the scheme.  The second respondent, the Trustees of the Scheme argued that the complaints were time-barred and that they did not relate to a rule of the Scheme.

The Equality Officer considered the meaning of frivolous, vexations and misconceived as detailed in section 77A of the Employment Equality Acts as applied to the Pensions Acts and looked at Farley v Ireland and others, 1997 IESC 60 and concluded that in order to dismiss a complaint pursuant to that provision he must be satisfied that the “complainants have no reasonable chance of succeeding in their claims”.

In terms of the complaints being time-barred, the complainants lodged their claims a month after the decision to reduce their benefits.  However, the time limit provided at section 81E of the Pensions Acts stated that the claims must be lodged within “six months from the date of termination of the relevant employment” which can be extended to 12 months for reasonable cause.   The Equality Officer found that the complainants sought to have time limits imposed as prescribed by section 75 of the Employment Equality Acts applied in the instant case without any authority supporting it.  He further found that the time limits under the Pensions Acts were clear and unambiguous and must be applied.  On that basis the claims were out of time as the complainants had all ceased employment in excess of twelve months before the date the claims were referred to the Tribunal.

The Equality Officer went on to consider the other arguments presented by the respondents for the sake of completeness and accepted both, that the ESB was not the correct respondent and that the imposition of the reduction of the complainants’ benefits was not on foot of a rule of the Scheme but was instead on foot of a statutory obligation imposed on the trustees of the Scheme.  On the basis of all arguments the Equality Officer found that the complaints were frivolous, vexatious and misconceived and dismissed all eight claims against both respondents.

Why are these cases of interest?

• Equality cases arising in respect of the Pensions Acts are rare.
• One wonders whether these provisions in the Pensions Acts are a toothless tiger since complaints of equal pension treatment must be taken within 6 (extendable to 12) months of the date of the termination of employment.  “Complainant’ is defined as who ever refers the case, which is not necessarily the insured employee, and while working on a case involving spouse and children pensions many moons ago it struck me how this deadline might impact negatively on such a complainant.

To view the full case decision:  http://www.workplacerelations.ie/en/Cases/2014/July/DEC-P2014-001.html