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25 1990

PENSIONS ACT, 1990

PART VII

Equal Treatment for Men and Women in Occupational Benefit Schemes

Interpretation (Part VII).

65. —In this Part, unless the context otherwise requires—

the Act of 1946” means the Industrial Relations Act, 1946 ;

the Agency” means the Employment Equality Agency;

the Court” means the Labour Court;

employee” means a person who has entered into or works under (or, in the case of a contract which has been terminated, worked under) a contract of employment with an employer, whether the contract is (or was) for manual labour, clerical work or otherwise, is (or was) expressed or implied, oral or in writing, and whether it is (or was) a contract of service or apprenticeship or otherwise, and includes a civil servant of the State or of the Government and an officer or servant of a local authority within the meaning of the Local Government Act, 1941 , an officer or servant of a harbour authority, health board or vocational education committee and any reference to employment shall be construed accordingly;

employer”, in relation to an employee, means the person by whom the employee is (or, in the case where the employment has ceased, was) employed under a contract of employment, and for the purposes of this definition a civil servant of the State or of the Government shall be deemed to be employed by the State or the Government (as the case may be) and an officer or servant of a local authority within the meaning of the Local Government Act, 1941 , or of a harbour authority, health board or vocational education committee shall be deemed to be employed by the local authority, harbour authority, health board or vocational educational committee (as the case may be);

member” means any person who, having been admitted to membership under the rules of an occupational benefit scheme remains entitled to the benefits of such scheme;

occupational benefit scheme” means any scheme or arrangement which is comprised in one or more instruments or agreements and which provides, or is capable of providing, occupational benefits to employed or self-employed persons but does not include—

(a) any individual contract made by or on behalf of an employed or a self-employed person, or

(b) any scheme which has only one member, or

(c) any scheme for the benefit of employees under which the benefits are provided in full by contributions paid by the employees;

occupational benefits” means benefits, in the form of pensions or otherwise, payable in cash or in kind in respect of—

(a) termination of service,

(b) retirement, old age or death,

(c) interruptions of service by reason of sickness or invalidity,

(d) accidents, injuries or diseases arising out of or in the course of a person's employment,

(e) unemployment, or

(f) expenses incurred in connection with children or other dependants;

and, in the case of a member who is an employee, includes any other benefit corresponding to a benefit provided by virtue of the Social Welfare Acts, the Maternity (Protection of Employees) Act, 1981 , or the Health Acts, 1970 to 1987, which is payable to or in respect of the member as a consequence of his employment;

the Social Welfare Acts” means the Social Welfare (Consolidation) Act, 1981 , and every enactment, whether passed before or after this Act, which is to be construed with it as one Act.

Schemes to comply with principle of equal treatment.

66. —Subject to sections 69 and 72 , every occupational benefit scheme shall comply with the principle of equal treatment.

Principle of equal treatment.

67. —(1) The principle of equal treatment is that there shall be no discrimination on the basis of sex in respect of any matter relating to an occupational benefit scheme.

(2) The principle of equal treatment shall apply in relation to members' dependants as it applies in relation to members.

(3) For the purposes of this section, discrimination on the basis of sex shall be deemed to occur in respect of a matter relating to an occupational benefit scheme in but only in the following cases—

(a) where because of a person's sex the person is treated less favourably than a person of the other sex,

(b) where a person is treated, by reference to his marital or family status, less favourably than a person of the other sex with the same status,

(c) where because of a person's sex the person is unable to comply with a requirement or condition—

(i) in respect of which the proportion of persons of the other sex able to comply with such requirement or condition is substantially higher than the proportion of persons of the first mentioned sex so able, and

(ii) which is not justifiable irrespective of the sex of the persons to whom it applies,

(d) where because of a person's marital or family status the person is unable to comply with a requirement or condition—

(i) in respect of which the proportion of persons of the other sex with the same status able to comply with such requirement or condition is substantially higher than the proportion of persons of the first mentioned sex so able, and

(ii) which is not justifiable irrespective of the sex of the persons to whom it applies,

(e) where a person is penalised for having in good faith—

(i) made a reference under section 75 , 76 or 77 ,

(ii) given evidence in any proceedings under this Part, or

(iii) given notice of an intention to do anything referred to in subparagraphs (i) and (ii).

Onus of proof in certain cases.

68. —If any question arises as to whether a requirement or condition, falling within paragraphs (c) and (d) of subsection (3) of section 67 is justifiable irrespective of the sex of the persons to whom it applies, it shall be for those who assert such justification to prove it.

Supplementary provisions to section 66 .

69. —(1) In determining whether a scheme complies with the principle of equal treatment under section 66 , account shall not be taken of—

(a) any difference, on the basis of the sex of members, in the levels of contributions which the employer makes, to the extent that the difference is for the purposes of removing or limiting differences, as between men and women in the amount or value of benefits provided under a defined contribution scheme,

(b) any difference, on the basis of sex, in the amount or value of benefits provided under a defined contribution scheme to the extent that the difference is justifiable on actuarial grounds,

(c) any special treatment for the benefit of women to whom section 72 (1) relates,

(d) any difference of treatment in relation to benefits for a deceased member's surviving spouse or other dependants,

(e) any difference of treatment in relation to any optional provisions available.

(2) In this section—

defined contribution scheme” has the meaning assigned to it under section 2 but as if the reference therein to “benefits” were a reference to “occupational benefits”;

optional provisions available” means those provisions of a scheme—

(a) which apply only in the case of members who elect for them to do so, and

(b) whose purpose is to secure for those members—

(i) benefits in addition to those otherwise provided under the scheme, or

(ii) a choice with respect to the date on which benefits under the scheme are to commence, or

(iii) a choice between any two or more benefits.

(3) Subsection (1) (d) shall cease to have effect on such date as may be prescribed.

Equal treatment and access to schemes.

70. —An employer shall comply with the principle of equal treatment in relation to the manner in which he affords his employees access to an occupational benefit scheme.

Non-compliance, compulsory levelling up.

71. —(1) Where a rule of an occupational benefit scheme does not comply with the principle of equal treatment it shall, to the extent that it does not so comply, be rendered null and void by the provisions of this Part and the more favourable treatment accorded by it to persons of the one sex shall be accorded by it to persons of the other sex.

(2) Where more favourable treatment is accorded to any persons under a scheme by virtue of subsection (1), the trustees of the scheme or (where appropriate) the employer shall take such measures as are necessary to give effect to that subsection.

(3) Where, on the commencement of this Part, any rule of a scheme is rendered null and void by subsection (1), then, during such period as may be prescribed, beginning on such commencement and not being longer than ten years, nothing in this Part shall affect any rights accrued or obligations incurred under the scheme before such commencement, and different periods may be prescribed under this subsection in relation to different classes of rights and different classes of obligations.

Maternity provisions.

72. —(1) Subject to the provisions of this section, nothing in this Part shall prevent a scheme from providing special treatment for women in connection with pregnancy or childbirth.

(2) Where an occupational benefit scheme contains a rule—

(a) which relates to continuing membership of, or the accrual of rights under, the scheme during any period of paid maternity absence in the case of a woman who—

(i) is, or

(ii) immediately before the commencement of such period, was,

an employee and which treats that woman in a manner other than that in which she would be treated under the scheme if she was not absent from work and was in receipt of remuneration from her employer during that period, or

(b) which requires the amount of any benefit payable under the scheme to or in respect of any such woman, to the extent that it falls to be determined by reference to her earnings during a period which includes a period of paid maternity absence, to be determined other than it would so be determined if she was not absent from work, and was in receipt of remuneration from her employer during that period,

it shall be regarded to that extent as not complying with the principle of equal treatment.

(3) Where a scheme is regarded as not complying with the principle of equal treatment by virtue of subsection (2), the trustees of the scheme or (where appropriate) the employer concerned shall take such measures as are necessary to ensure that the treatment accorded to the woman concerned under the scheme is no less favourable than that which would be accorded to her thereunder throughout the period of maternity absence concerned if she were not absent from work and was in receipt of remuneration from her employer during that period.

(4) In this section “period of paid maternity absence” means any period—

(a) throughout which a woman is absent from work due to pregnancy or childbirth, and

(b) for which her employer, or (if she is no longer in his employment) her former employer, pays her any contractual remuneration.

Family leave provisions.

73. —(1) Where an occupational benefit scheme contains a rule—

(a) which relates to continuing membership of, or the accrual of rights under, the scheme during any period of paid family leave in the case of a member who is an employee and which treats the member in a manner other than that in which he would be treated under the scheme if he were not absent from work, and was in receipt of remuneration from his employer, during that period, or

(b) which requires the amount of any benefit payable under the scheme to or in respect of any such member, to the extent that it falls to be determined by reference to his earnings during a period which includes a period of paid family leave, to be determined other than it would so be determined if he was not absent from work and was in receipt of remuneration from his employer during that period,

it shall be regarded to that extent as not complying with the principle of equal treatment.

(2) Where a scheme is regarded as not complying with the principle of equal treatment by virtue of subsection (1), the trustees of a scheme or (where appropriate) the employer concerned shall take such measures as are necessary to ensure that the treatment accorded to the member concerned under the scheme is no less favourable than that which would be accorded to him thereunder throughout the period of family leave concerned if he was not absent from work and was in receipt of remuneration from his employer during that period.

(3) In this section “period of paid family leave” means any period—

(a) throughout which a member is absent from work for family reasons, and

(b) during which the employer pays him any contractual remuneration.

Principle of equal treatment and collective agreements, etc.

74. —(1) (a) Where an agreement or order to which this section applies contains a rule which does not comply with the principle of equal treatment, the rule shall be null and void.

(b) This section applies to—

(i) a collective agreement,

(ii) an employment regulation order within the meaning of Part IV of the Act of 1946, and

(iii) a registered employment agreement within the meaning of Part III of the Act of 1946 registered in the Register of Employment Agreements.

(2) Where a contract of employment contains a term (whether expressed or implied) which does not comply with the principle of equal treatment, the term shall be null and void.

Determination of disputes.

75. —(1) Any dispute as to—

(a) whether a scheme is a defined contribution scheme for the purposes of this Part,

(b) whether any rule of a scheme, which is also an occupational benefit scheme for the purposes of this Part, complies with the principle of equal treatment, or

(c) whether and to what extent any such rule is rendered null and void by section 71 ,

shall be determined by the Board on application to it in writing in that behalf by a person who, in relation to the scheme, corresponds to a person mentioned in section 38 (3) in relation to the scheme mentioned therein.

(2) Where it appears to the Agency that the rules of a scheme referred to in subsection (1) fail to comply with the principle of equal treatment, the matter may be referred to the Board by the Agency and the reference shall be treated for the purpose of this Act as an application under subsection (1).

(3) An appeal to the High Court on a point of law from a determination of the Board under subsection (1), in relation to a scheme, may be brought by the person who made, or a person who was entitled to make, the application concerned under subsection (1).

Equality officers.

76. —(1) Any dispute as to—

(a) whether any rule of an occupational benefit scheme, other than an occupational pension scheme, complies with the principle of equal treatment,

(b) whether and to what extent any such rule is rendered null and void by section 71 ,

(c) whether any term of a collective agreement, employment regulation order or contract of employment specified in section 74 , insofar as it relates to occupational benefits provided under a scheme referred to in paragraph (a), complies with the principle of equal treatment, or

(d) whether an employer complies with the provisions of section 70 ,

shall be referred by any person concerned to an equality officer for investigation and recommendation.

(2) Where it appears to the Agency that—

(a) a rule of an occupational benefit scheme referred to in subsection (1), or

(b) a term of a collective agreement, employment regulation order or contract of employment, insofar as it relates to occupational benefits provided under a scheme referred to in subsection (1) (a),

fails to comply with the principle of equal treatment or an employer is failing to comply with the provisions of section 70 , the matter may be referred to an equality officer by the Agency and the reference shall be treated for the purpose of this Act as a reference under subsection (1).

(3) Where a dispute is referred under this section to an equality officer, he shall investigate the dispute and issue a recommendation thereon.

(4) Any information obtained by an equality officer in the course of an investigation or appeal under this Part as to any trade union or person or as to the business carried on by any person which is not available otherwise shall not be included in any recommendation or determination without the consent of the trade union or person concerned, nor shall any person concerned in proceedings before an equality officer or the Court disclose any such information without such consent.

(5) A recommendation under this section shall be conveyed—

(a) to the Court and to the parties to the dispute, or

(b) in the case of a reference under subsection (2) to the Court, the Agency and to such person or persons as appear to the equality officer to be concerned.

(6) An equality officer may provide for the regulation of proceedings before him in relation to an investigation before him under this Act.

(7) (a) An equality officer may, for the purpose of obtaining any information which he may require for enabling him to exercise his functions under this Act, do any one or more of the following things:

(i) at all reasonable times enter premises,

(ii) require an employer or his representative to produce to him any records, books or documents that are in the employer's power or control and as respects which the officer has reasonable grounds for believing that they contain information of the kind so required and to give him such information as he may reasonably require in regard to any entries in any such records, books or documents,

(iii) inspect and take copies, or copies of extracts from, any such records, books or documents.

(b) Any person who obstructs or impedes an equality officer in the exercise of his powers under this subsection or does not comply with a requirement of an equality officer under this subsection shall be guilty of an offence and shall be liable—

(i) on summary conviction to a fine not exceeding £1,000 or imprisonment for a term not exceeding one year, or to both,

(ii) on conviction on indictment to a fine not exceeding £10,000 or imprisonment for a term not exceeding 2 years, or to both.

(8) An investigation by an equality officer under this Act shall be conducted in private.

Investigation of disputes by Court.

77. —(1) A person concerned or (in the case of a reference under section 76 (2)) the Agency may appeal to the Court—

(a) against a recommendation under section 76 , or

(b) for a determination that such a recommendation has not been complied with.

(2) The Court shall hear and determine an appeal under this section and shall convey its determination—

(a) in the case of a reference under section 76 (1) to the parties to the dispute,

(b) in the case of a reference under section 76 (2) to the Agency and such person or persons as appear to the Court to be concerned.

(3) (a) A hearing under this section shall be held in private, but the Court may, if requested to do so by a party to the dispute or a person referred to in section 76 (2), hold the hearing in public.

(b) Where a hearing under this section is being held in public the Court may, if it is satisfied that any part of the hearing concerns a matter that should, in the interests of any party to the dispute, or of a person referred to in section 76 (2) be treated as confidential, hold that part of the hearing in private.

(c) Sections 14 and 21 of the Act of 1946 shall apply to an appeal under this section.

(d) An appeal under this section shall be lodged in the Court not later than 42 days after the date of the equality officer's recommendation and the notice shall specify the grounds of the appeal.

(4) Any information obtained by the Court in the course of an investigation or appeal under this Part as to any trade union or person or as to the business carried on by any person which is not available otherwise shall not be included in any recommendation or determination without the consent of the trade union or person concerned, nor shall any person concerned in proceedings before an equality officer or the Court disclose any such information without such consent.

(5) A party to a dispute determined by the Court under subsection (1) or, in the case of a determination in a matter referred to under section 76 (2), the Agency or any other person concerned may appeal to the High Court on a point of law.

Powers of Court under section 77 .

78. —The Court may, in pursuance of a determination of the Court, under section 77 , as may be appropriate—

(a) determine whether a rule of a scheme referred to in section 76 (1) (a) complies with the principle of equal treatment,

(b) determine whether any such rule is rendered null and void by section 71 ,

(c) determine whether the terms of a collective agreement, employment regulation order or contract of employment specified in section 74 , insofar as they relate to occupational benefits provided under a scheme referred to in section 76 (1) (a), complies with the principle of equal treatment,

(d) determine whether the employer concerned has complied with the provisions of section 70 ,

(e) recommend to a person or persons concerned a specific course of action.

Failure to implement determination of Court.

79. —(1) Where a person concerned or (in a case which relates to a reference under section 76 (2)) the Agency complains to the Court that a determination under paragraphs (a) to (e) of section 78 has not been implemented, the following provisions shall have effect:

(a) the Court shall consider the complaint and shall hear all persons appearing to the Court to be interested and desiring to be heard,

(b) if after such consideration the Court is satisfied that the complaint is well founded, the Court may by order direct the person failing to implement the determination to do such things as will, in the opinion of the Court, result in the determination being implemented by that person.

(2) If, where an order is made by the Court under subsection (1), the direction contained in the order is not carried out within 2 months from the date of the making of the order (or, where there is an appeal under section 77 (5), within 2 months of the date of the order of the High Court on the appeal) the person to whom the direction is given shall be guilty of an offence and shall be liable—

(a) on summary conviction, to a fine not exceeding £1,000 or to imprisonment for a term not, exceeding one year, or to both,

(b) on conviction on indictment, to a fine not exceeding £10,000 or to imprisonment for a term not exceeding 2 years, or to both.

Offences relating to certain dismissals and effect, etc.

80. —(1) Where an employee is dismissed from an employment solely or mainly because, in good faith, the employee—

(a) made a reference under section 75 , 76 or 77 ,

(b) gave evidence in any proceedings under this Act, or

(c) gave notice to his employer of his intention to do anything referred to in subparagraph (a) or (b),

the employer shall be guilty of an offence and shall be liable—

(i) on summary conviction, to a fine not exceeding £1,000 or to imprisonment for a term not exceeding one year, or to both,

(ii) on conviction on indictment, to a fine not exceeding £10,000 or to imprisonment for a term not exceeding 2 years, or to both.

(2) In a prosecution for an offence under this section the onus shall be on the employer to satisfy the court that the doing of anything referred to in subsection (1) was not the sole or principal reason for the dismissal.

(3) (a) On conviction of an employer for an offence under this section, the court may, if it thinks fit and the dismissed employee is present or represented in court and consents—

(i) order the re-instatement by the employer of the dismissed person in the position which that person held immediately before the dismissal on the terms and conditions on which that person was employed immediately before that dismissal, together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal,

(ii) order the re-engagement by the employer of the dismissed person either in the position which that person held immediately before the dismissal or in a different position which would be reasonably suitable for that person on such terms and conditions as are reasonable having regard to all the circumstances, or

(iii) impose on the employer, in addition to any fine imposed under subsection (1), a fine not exceeding the amount which, in the opinion of the court, the dismissed person would have received from the employer concerned by way of remuneration if the dismissal had not occurred:

Provided that that amount shall not exceed—

(I) if the conviction was a summary conviction, an amount which together with the fine imposed under subsection (1) does not exceed £1,000,

(II) if the conviction was on indictment, an amount equal to 104 weeks' remuneration of the dismissed person.

(b) The amount of a fine imposed under paragraph (a) shall be paid to the employee concerned.

(c) Without prejudice to any right of appeal by any other person, the employee concerned may appeal against the amount of the fine under this subsection, either (as the case may be) to the High Court or to the judge of the Circuit Court in whose circuit the district (or any part thereof) of the justice of the District Court by whom the fine was imposed is situated, and the decision on such an appeal shall be final.

(d) Proof of the payment by an employer of a fine imposed under paragraph (a) shall be a defence to any civil action brought against him by the employee concerned in respect of the remuneration referred to in subparagraph (iii) of that paragraph.

Provisions supplemental to section 80 .

81. —(1) Where a person, in respect of whose dismissal from employment a prosecution for an offence under section 80 has not been brought, complains to the Court that that dismissal was solely or mainly because the person did in good faith a thing specified in section 80 (1) the following provisions shall apply:

(a) the Court shall investigate the complaint, and shall hear all persons appearing to the Court to be interested and desiring to be heard;

(b) an investigation under this subsection shall be held in private, but the Court shall, if requested to do so by a party to the dispute, hold the investigation in public;

(c) where an investigation under this subsection is being held in public the Court may, if it is satisfied that any part of the investigation concerns a matter that should, in the interests of any party to the dispute, be treated as confidential, hold that part of the investigation in private;

(d) if after such investigation the Court is satisfied that the complaint is well founded, the Court may—

(i) order the re-instatement by the employer of the dismissed person in the position which that person held immediately before the dismissal on the terms and conditions on which that person was then employed and that the re-instatement shall be deemed to have commenced on the day of the dismissal,

(ii) order the re-engagement by the employer of the dismissed person either in the position which that person held immediately before the dismissal or in a different position which would be reasonably suitable for that person on such terms and conditions as are reasonable having regard to all the circumstances, or

(iii) order the payment by the employer to the dismissed person of such compensation as the Court considers reasonable in the circumstances not exceeding an amount equal to 104 weeks' remuneration of that person.

(2) Subject to subsection (5), if the employer concerned does not comply with an order under subsection (1) within 2 months of the date of its making, he shall be guilty of an offence and shall be liable—

(a) on summary conviction, to a fine not exceeding £1,000 or to imprisonment for a term not exceeding one year, or to both,

(b) on conviction on indictment, to a fine not exceeding £10,000 or to imprisonment for a term not exceeding 2 years, or to both.

(3) (a) On conviction of a person for an offence under this section, the court may, if it thinks fit and the dismissed person concerned is present or represented in court and consents—

(i) order the re-instatement by the employer of the dismissed person concerned in the position which that person held immediately before that dismissal on the terms and conditions on which that person was then employed and that the re-instatement shall be deemed to have commenced on the day of the dismissal,

(ii) order the re-engagement by the employer of the dismissed person either in the position which that person held immediately before the dismissal or in a different position which would be reasonably suitable for that person on such terms and conditions as are reasonable having regard to all the circumstances, or

(iii) impose on the employer, in addition to any fine imposed under subsection (2), a fine not exceeding the amount which, in the opinion of the court, the dismissed person would have received from the employer concerned by way of remuneration if the dismissal had not occurred:

Provided that that amount shall not exceed—

(I) if the conviction was a summary conviction, an amount which together with the fine imposed under subsection (2) does not exceed £1,000,

(II) if the conviction was on indictment, an amount equal to 104 weeks' remuneration of the dismissed person.

(b) The amount of a fine imposed under paragraph (a) shall be paid to the employee concerned.

(c) Without prejudice to any right of appeal by any other person, the employee concerned may appeal against the amount of a fine imposed under this subsection, either (as the case may be) to the High Court or to the judge of the Circuit Court in whose circuit the district (or any part thereof) of the justice of the District Court by whom the fine was imposed is situated, and the decision on such an appeal shall be final.

(d) Proof of the payment by a convicted person of a fine imposed under paragraph (a) shall be a defence to any civil action brought against him by the employee concerned in respect of the remuneration referred to in subparagraph (iii) of that paragraph.

(4) A complaint under this section shall be made to the Court not later than 6 months from the date of the dismissal concerned or such longer period as the Court considers reasonable having regard to the circumstances.

(5) The employer concerned may, notwithstanding section 17 of the Act of 1946, appeal against an order under subsection (1) to the judge of the Circuit Court in whose circuit the person carries on business.