Pensions and Discrimination
Historically, many pension schemes contained provisions that were discriminatory on the basis of gender. These included different retirement ages, members benefits, survivors’ benefits, accrual rates and entry conditions. Men and women were usually treated differently. In some cases, women were treated more favourably.
The principle of equal pay men and women for equal work is set out in the European Union Treaty. Pay includes occupational and pension scheme benefits. These provisions have been directly applicable since the 1970s. They may be invoked before national courts. They may directly invalidate provisions in pension schemes which are discriminatory on the grounds of sex.
Equality legislation prohibits discrimination on a number of specified grounds. It renders void discrimination on the grounds of gender, race, marital status, sexual orientation, religion, age, disability, family status and membership of the travelling community. The legislation applies to pension scheme so that discrimination in relation to pension arrangements is prohibited.
There may be indirect discrimination in the case of an apparently neutral provision. Scheme provisions may be indirectly discriminatory if their effect is disproportionately adverse on persons in the protected category, relative to others.
An EU Directive provides for equal treatment of men and women in occupational pension schemes. The provisions have been implemented in Ireland through Part VII of the Pensions Act. The Act provides that there must be no discrimination, direct or indirect, on the specified discriminatory grounds under equality legislation, in occupational pension schemes or other occupational benefit arrangements.
Unlawful discrimination occurs if a person is treated less favourably than another is, has been or would be treated, in a comparable situation on any of the specified discriminatory grounds, which exist, existed or may exist in the future for the person concerned.
If a person who is associated with another individual, is treated by reason that association less favourably than a person who is not so associated would be treated or has been treated in a comparable situation, the differing treatment of the other person on any of the discriminatory grounds, constitutes discrimination.
The Pensions legislation sets out the same discriminatory grounds as are provided in employment equality and general equality legislation. The grounds are gender, marital status, family status, sexual orientation, age, religion, disability, race and travelling community membership.
Direct or indirect discrimination will invalidate the offending rules and provisions unless they can be justified by a legitimate purpose and constitute an appropriate and necessary means of achieving that purpose. The provision may apply to provisions beyond pension rules and policies to cover other provisions such as collective agreements.
The equality provisions apply to the exercise of discretionary powers. They are not limited to rules which are expressly discriminatory. Discretionary powers must not be exercised in the manner which constitutes direct or indirect discrimination in relation to access to the scheme benefits.
Different treatment may be permissible where it is objectively justified on legitimate grounds. The difference in treatment must be appropriate to deal with the relevant, legitimate objective. The differentiation must be no more than reasonably necessary, in order to achieve that objective.
Equal treatment does not necessarily require equality nor membership of the same scheme. A comparator is required. The requirement is that the treatment be no less favourable than that enjoyed by the comparator.
There are a number of specific exceptions to the equality requirements under pensions legislation. Most have a basis in historical, actuarial or objectively justifiable differences. Others allow the correction of past discrimination. Differences in contribution rates and in benefits is excepted provided that the purpose is to remove or limit differences which arise from actuarial factors relative to gender.
The Pensions Act allows for certain discriminatory treatment, which would otherwise breach equality provisions on the basis of age. A scheme may fix an age or a required length of service as a condition for employees or groups of employees to become members, become entitled to benefits or to accrue benefits under the scheme. It must be necessary and appropriate by reference to a legitimate objective.
The requirement to retire at the scheme’s normal retirement age is deemed not to be discriminatory on the age ground. Under a recent amendment to equality legislation, retirement on the age grounds should justified and specifically provided for in the employment contract or other terms and conditions.
The Pensions Act provides an exception from the equality principle on the family status, marital status and sexual orientation grounds. This facilitates more favourable treatment for surviving spouses and dependents, provided that it is not discriminatory on the gender ground. Favourable widow benefits are commonly found in occupational pension schemes. Gender equality requires equivalent benefits for widowers.
Rules which apply a different treatment to women who are absent on maternity leave are prohibited. Similarly, absence on qualifying family leave is protected in the same way.
Positive discrimination in favour of persons with disability is permissible.
Scheme rules which are in breach of equality provisions must be rectified. Benefits must be rendered equal. Provision must be made for the levelling up of benefits. Schemes are required to be levelled retrospectively, as and from certain key dates under European Union equality provisions.
The Pensions Act makes provision for redress in respect of discrimination in occupational pension schemes. An order may be made requiring that benefits be levelled in accordance with the principles of the act. An amendment may be directed, and a specific course of action may be required. Persons who have suffered adverse consequences may be entitled to redress by way of compensation of up to the two years’ salary.
Complaints in relation to a breach of equality legislation may be made to the Workplace Relations Commission. See the articles in relation to discrimination legislation generally and redress.
The equality provisions of the former EU Treaty were found to be directly applicable in 1976. The Pensions Act, with its specific equality provisions, became law in May 1990. Levelling up of discriminatory provisions on the gender ground was required back to the date the provision took effect, or May 1990, if earlier for employees. The relevant date is January 1993 for self-employed members.
Pre-1990 discrimination may continue to have effect for a period. Levelling up back to 1976 is required only where the members had imitated proceedings on the basis of the EEC equality provisions prior to 1990.
Equalisation of discrimination on the other prohibited statutory grounds of discrimination is required. The same or more favourable treatment must be applied. The provision takes effect on the date on which the discriminatory rule takes effect, or July 2003, if later.
Fixed Term Employees
Fixed-term employees are the subject of specific protective legislation. The provisions are broadly similar to those which apply to part-time employees. A fixed term employee must not be treated less favourably than a comparable full-time employee, in circumstances where he undertakes at least 20 percent of the normal working hours of the full-time comparator.
Discrimination may be justified on objective grounds, other than those relating to fixed term employment as such. It must be proportionate, in the same sense set out bellow. A fixed term employee may be excluded from the pension scheme, only where there are objectively justifiable grounds for so doing. The difference in treatment must be appropriate to deal with the relevant, legitimate objective. The differentiation must be no more than reasonably necessary, in order to achieve that objective.
Part Time Workers
The legislation in respect of part-time employees prohibits discrimination on the ground that the work is part-time. A part-time employee must enjoy benefits proportionate to those of a full-time employee. Provided that the employee works more than 20 percent of the normal working hours of comparator employer, he may not be treated less favourably in relation to conditions of employment regarding access to pensions. Part-time workers with fewer hours per week service may be subject to unlawful discrimination on other grounds.
The part-time employee must not be discriminated against, relative to a comparable employee who is treated more favourably. The comparator must be employed by the same employer or an associated employer. The comparator may be deemed comparable through collective agreements applicable to both employments. If neither of the above applies, the comparator may be a person employed in the same industry or sector.
An award by way of compensation may be made under the part-time employee legislation, in respect of discrimination. Up to two years’ remuneration may be awarded by way of compensation. The complaint must be made within 6 months, subject to an extension but to 12 months.
Differential treatment may be justifiable in respect of part-time employee on an objective basis. It must be referable to something other than the employee’s status as a part-time worker. A part-time employee may be required to have a longer qualification period, where this is objectively necessary in terms of the length of work required to develop the relevant skills and knowledge.
Casual part-time workers as defined may be treated less favourably than comparable full-time employees. Casual employees are those with fewer than 13 weeks’ service who are not in regular or seasonal employment or are deemed casual based on a collective agreement to that effect.
References and Sources
Irish Pensions Law & Practice Buggy, Finucane & Tighe 2nd Ed (2005)
Pensions; Revenue Law and Practice (ITI) Dolan, Murray, Reynolds, McLoughlin (2013)
Trustee Handbook the Pensions Authority 5th Ed 2016
Statutory Guidance the Pensions Authority (Various)
Pensions Law Handbook 12 Ed Nabarro Nathanson Bloomsbury
Corporate Insolvency 6e: Employment & Pension Rights (6th Revised edition)
Occupational Pensions (Subscription) Lexis Nexis
Pensions Law and Practice with Precedents (Subscription) Sweet & Maxwell
Sweet & Maxwell’s Law of Pension Schemes (Subscription)
The Guide for Pension Trustees World Economics Ltd
The Guide for Pension Trustees website, you can:
Tolley’s Pensions Law Looseleaf Service (Subscription)
Pensions Act, 1990
Pensions (Amendment) Act, 1996
Pensions (Amendment) Act, 2002
Pensions (Amendment) Act, 2006
Social Welfare and Pensions Act, 2005 (Part 3)
Social Welfare Reform and Pensions Act 2006
Social Welfare and Pensions Act 2007
Social Welfare and Pensions Act 2008
Social Welfare (Miscellaneous Provisions) Act 2008
Social Welfare and Pensions Act 2009
Social Welfare and Pensions (No. 2) Act 2009
Social Welfare (Miscellaneous Provisions) Act 2010
Social Welfare and Pensions Act 2010
Social Welfare and Pensions Act 2011
Social Welfare and Pensions Act 2012
Social Welfare and Pensions (Miscellaneous Provisions) Act 2013
Social Welfare and Pensions Act 2013
Social Welfare and Pensions (No. 2) Act 2013 49/2013
Social Welfare and Pensions Act 2014
Social Welfare and Pensions (No. 2) Act 2014 41/2014
Social Welfare (Miscellaneous Provisions) Act 2015 12/2015
Social Welfare and Pensions Act 2015 (Part 3)