AGE DISCRIMINATION AND PENSIONS

1. AGE DISCRIMINATION AND PENSIONS CLÍONA KIMBER LLB LLM MA BL

2. 1. Introduction – applicable law • Article 141 EC • Directive 2000/78 • Part VII Pensions Act 1990

3. 2.Principle of Equal Pension Treatment • “The principle of equal pension treatment is that there shall be no discrimination on any of the discriminatory grounds (including, subject to s.68(2), indirect discrimination) in respect of any rule of a scheme. The principle of equal pension treatment shall apply in relation to member’s dependants as it applies in relation to members.” (section 70(1) and (2))

4. 3.When does principle apply? • Membership of a pension scheme • Access to a pension scheme • Qualifying criteria for benefits given • Setting of a normal pension age • Setting level of member contributions • Setting of employer contributions • The exercise of discretion in granting benefits under a scheme

5. 3.When does the principle apply contd., • The setting of annuity rates • The calculation of benefits accruing to a member leaving service • The setting of accrual rates • The calculation of survivor and dependant member benefits • The setting of early and late retirement terms • The setting of voluntary contributions

6. 4.Exceptions age or length of service as conditions for • admission • entitlement to benefits, • accrual of benefits in DB or level of contributions in DC …..if objectively justifiable. • actuarial calculations. • different ages for retirement or entitlement to benefits

7. 5.Objective Justification Bilka Kaufhaus (i) legitimate objective of the employer, (ii) appropriate means (iii) proportionate

8. 5.Objective Justification contd., Permitted under the Pensions Act • Legitimate employment policy • Labour market objectives • Vocational training objectives

9. 5. Objective Justification contd., Not permitted: • Cost • Purely historical discrimination, compliance with legislation • Industrial relations harmony claims not backed by solid evidence • Different collective bargaining processes

10. 5. Objective Justification contd., Workers v Courts Service • Totality of factors • Historical reasons • Promotional grade • A process of collective bargaining such as Programme for Prosperity and Fairness.

11. 5. Objective Justification contd., What else has succeeded? • Objective economic grounds relating to the management of the organisation • Payment is due to a grading structure • Requirement of flexibility of workers

12. 6. Transfer Payments 6. Transfer Payments Coloroll v. Russell Trustees of a transferring scheme must administer in a manner that removes inequality

13. 7. Redress • Levelling up retrospectively • Level up or down prospectively • Specific course of action • Compensation • Re-instatement or re-engagement • Interest

14. 8. Procedure • Equality Tribunal-appeal to Labour Court • Circuit Court • Role of Pensions Board • Six month time limit once left employment • Prima facie BP on Complainant • BP then shifts to employer/trustee

15. 9. Case-law • Coillte Teoranta v O’Dwyer • Perry v Garda Commsnrs • Eircom v McDermott

16. AGE DISCRIMINATION AND PENSIONS CLÍONA KIMBER LLB LLM MA BL